Year's-End Developments in Same-Sex Marriage Law

In December, the New York State Legislature failed to pass a proposed same-sex marriage bill. As everyone knows, however, that is not the end of the story. More attempts will be made, and many issues surrounding same-sex marriage will continue to be debated and litigated. For example, due to the fact that the State of New York has a relatively high number of gay and lesbian couples, and Canada and neighboring states have laws allowing them to obtain marriage licenses and to marry within their borders, the number of legally married same-sex couples in New York has been on the rise. This circumstance has led to confusion over what rights, if any, same-sex married couples enjoy on state and local levels while living in New York.

In response to the confusion, some government entities in recent years have published policy statements meant to clarify the issue. Two of those pronouncements were the subject of the recent litigation in Godfrey v. Spano, — N.E.2d —-, 2009 WL 3849908 (11/19/09), which dealt with two separate but related cases. The November 2009 Court of Appeals decision upheld the validity of the policies in both cases that extended certain rights to New York same-sex couples legally married in other states or countries.

The Lawsuits

Lewis v. New York State Department of Civil Service

In one of the consolidated cases, Lewis v. New York State Department of Civil Service, a Policy Memorandum had been issued by the Commissioner of the New York State Department of Civil Service's extending health care benefits to same-sex married couples. This development prompted four New York State taxpayers to file suit in 2007 against the New York State Department of Civil Service and its Commissioner, Nancy G. Groenwegen. The suit alleged that the defendants violated State Finance Law ' 123-b, the separation of powers doctrine, the State Constutition and other state laws. They sought a declaratory judgment that defendants' recognition of out-of-state same-sex marriages was “illegal, unconstitutional, ultra vires, void and constitute[d] an illegal expenditure of State funds,” and a permanent injunction directing the defendants to cease and desist from recognizing out-of-state same sex marriages.

Peri Rainbow and Tamela Sloan, a same-sex couple who married in Canada, were permitted to intervene. They, along with the defendants, moved to dismiss the complaint, which Supreme Court did. That court relied for its decision on Martinez v. County of Monroe, 50 AD3d 189, lv dismissed 10 NY3d 856 (2008), in which the Appellate Division, Fourth Department, held that a Canadian same-sex marriage was entitled to recognition in New York under the common law marriage recognition rule. On appeal, the Third Department affirmed Supreme Court's Lewis order, concluding that the common law marriage recognition rule warranted dismissal of the plaintiffs' first cause of action. The court also found no separation of powers conflict because the defendants' recognition of same-sex marriages was within the scope of the policy expressed in Civil Service Law section 161 to provide benefits to the spouses and dependent children of state employees. The Third Department further found no violation of the State's constitutional prohibition against expending public funds on private interests (New York Constitution, art VII, ' 8(1), “Inasmuch as the Department's policy furthers a valid governmental purpose to benefit public employees, it cannot fairly be said that it is invalid as promoting a private undertaking” Finally, the court held that “the determination to recognize same-sex marriages is not invalid for the Department's failure to comply with the formal rule-making procedures of the State Administrative Procedure Act because the determination is an interpretative statement that is merely explanatory.”

Godfrey v. Spano

The other disputed policy statement ' the subject of the second case, Godfrey v. Spano ' came from Andrew J. Spano, the County Executive of the County of Westchester. He issued an Executive Order instructing “each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.” Westchester County Executive Order No. 3 of 2006.

In September 2006, three Westchester County residents and taxpayers brought suit seeking a declaratory judgment holding that County Executive Spano's order violated General Municipal Law ' 51 by illegally legislating in the areas of marriage and domestic relations in a manner inconsistent with New York's Constitution and other state constitutional provisions and laws. Supreme Court granted the motions to dismiss and declared that Executive Order “a valid exercise of the County Executive's power, not an illegal act, [which] does not violate the State Constitution or the Municipal Home Rule Law.” Plaintiffs appealed and the Appellate Division, Second Department, unanimously affirmed, finding that the Executive Order could not be illegal because its own terms limited the requirement that same-sex marriage be recognized only to “the maximum extent allowed by law.” Dismissal of the constitutional basis for challenging the law was warranted, said the Second Department, because the plaintiffs, as mere taxpayers without a more personal interest in the suit's outcome, lacked standing to sue.

Before the Court of Appeals

On appeal, the Godfrey v. Spano plaintiffs pressed only one of their claims: the General Municipal Law ' 51 claim that Spano illegally legislated in the areas of marriage and domestic relations. The Court of Appeals pointed out that ' 51 claims will lie only when the acts complained of are fraudulent or will waste public property for an illegal purpose. No fraud was alleged here, so the claim could go forward only if the policy espoused by the Executive Order wasted public funds for an illegal purpose. The court found no such expenditures here because Westchester County has for some time extended health-care benefits to the registered same-sex partners of county employees. Thus, no additional funds would be spent when a same-sex couple married and claimed benefits vs. when that same couple cohabited, registered with the county, and then claimed benefits.

Notably, although the court agreed that dismissal was proper, it was not impressed by the Second Department's reliance on the Executive Order's limitation of the recognition of same-sex couples as being “to the maximum extent allowed by law.” Said the Court of Appeals, “We find such language, which may appear either expansive or restrictive depending on the reader, ambiguous, and we would not encourage executive officials to try to insulate their orders from judicial review by this means.”

On appeal, the Lewis plaintiffs limited their causes of action to two: that State Finance Law ' 123-b had been violated, as well as the separation of powers doctrine.

With respect to the Finance Law claim, the Court of Appeals affirmed dismissal. Although the Lewis plaintiffs, like the Godfrey plaintiffs, could not claim any specific harm to themselves (as opposed to New York taxpayers in general), State Finance Law ' 123-b (1) confers standing on any taxpayer “whether or not such person is or may be affected or specially aggrieved.” However, the Lewis plaintiffs had alleged that the defendants were “expending and will expend State funds and/or resources supplied from New York State tax revenue,” but they pinpointed no specific expenditures that would not otherwise have been made by the State had the Policy Memorandum not been issued. In order to bring suit under the law, there must be a specific threat of an imminent expenditure. Quoting Saratoga County Chamber of Commerce Inc. v. Pataki, 100 NY2d 801, 813 (2003), the Court of Appeals noted that “courts have been inhospitable to plaintiffs who seek essentially to challenge nonfiscal activities by invoking the convenient statutory hook of section 123-b.” With these maxims in mind, the court found, as it did in Godfrey v. Spano, that because New York State employees had for many years been offered health-benefit coverage for their registered same-sex partners, there was no showing that additional state funds would be expended if married same-sex couples also were given health benefits.

The plaintiffs' separation of powers doctrine claim asserted that the President of the Civil Service Commission's action in recognizing same-sex marriages entered into in other jurisdictions was “inconsistently with the Legislature's pronouncements on spousal benefits.” Specifically, they alleged that the defendants acted in violation of Civil Service Law ' 164.

The court looked first at Civil Service Law ' 161(1), which says that the President of the Civil Service Commission is “authorized and directed to establish a health insurance plan for state officers and employees and their dependents and officers.” Next, it reviewed Civil Service Law ' 164(1), which provides that every state employee “shall be entitled ' to have his spouse and dependent children, as defined by the regulations of the president, included in the coverage upon agreeing to pay his contribution, if any, to the cost of such coverage for such dependents” (emphasis added). These statutes, taken together, expressly give the President of the Civil Service Commission the right to establish a state employee health insurance plan, as well as the authority to define “spouse.” In addition, the court noted, the statutes do not restrict the civil service president to providing health insurance only to spouses and dependent children of state employees. Thus, concluded the court, “The statute itself refutes plaintiffs' claim.”

Leaving It to the Legislature

In deciding the above cases, the Court of Appeals was able to affirm the dismissals of the two cases on narrow grounds. It therefore took the opportunity to decline to reach the defendants' argument that New York's common law marriage-recognition rule requires the State to recognize out-of-state same-sex marriages, in the same way it would recognize any other foreign marriage that is legal where performed but that would have been prohibited had the parties tried to marry in New York. The court, referring to its own admonition to the legislature in a previous case concerning the rights of gay and lesbian couples to marry, said, “We end, by repeating what we said in Hernandez v. Robles, [7 NY3d 338] expressing our hope that the Legislature will address this controversy.”

That hope was realized this year when the legislature took up the question of whether same-sex marriage should be permitted in New York. In December, New York's Senate shot down a bill, already passed by the Assembly, that would have extended marriage rights to such couples. The proposed legislation failed in the Senate by a wide margin, with 24 legislators voting for it and 38 against. If it had passed, Governor David Paterson had said he would sign it into law.

Naturally, many supporters were disappointed, including the New York State Bar. Last summer, the State Bar Association's House of Delegates adopted a resolution in favor of the measure. After the Senate vote, the Bar Association's President, Michael E. Getnick, issued a statement condemning the rejection and stating, “The State Bar has long supported equal rights for same-sex couples. With strong leadership from Governor Paterson, the Assembly and a core group of Senators, we will continue to work hard to ensure passage of legislation that will afford tens of thousands of gay New Yorkers the same protections, responsibilities and dignity that married heterosexual couples have long enjoyed. We are discouraged by the vote today, but we shall continue to go forward with seeking to secure the rights and dignity of all citizens of our State. It will remain one of our top legislative priorities.”

Also refusing to admit defeat was Susan Sommer, Director of Constitutional Litigation at Lambda Legal, one of the leading organizations dedicated to advancing the rights of gay, lesbian, bisexual, HIV-positive and transgender individuals. Sommer issued a statement on behalf of the group, saying, “As always, Lambda Legal will continue to make the case for equality and will continue to defend the state's recognition of out-of-state marriages, as we did in New York's highest court last month [referring to the decisions in Godfrey and Lewis]. But no matter how many times we defend families in court or how consistently the state upholds recognition of out-of-state marriages, same-sex couples in New York are still vulnerable to discrimination until they can marry in the state where they live. This is not over.”

Opponents of gay marriage in New York and elsewhere are, understandably, thrilled with the latest setback to a new same-sex marriage law. For example, Brian Brown, Executive Director of the National Organization for Marriage, issued a statement saying, “This is a huge win, it puts the nail in the coffin on the idea that gay marriage advocates can persuade a majority of Americans their cause is just. New York makes it crystal clear: The American people do not support gay marriage and they do not want their politicians messing with this issue.”

Financial Considerations

The religious, historical and social reasons behind support of and opposition to same-sex marriage laws are well known and will continue to be debated. These arguments will often fall on deaf ears, as each side is generally polarized in its opinions.

But there is another, less obvious, consequence of this ongoing battle for the State of New York and its citizens. In these hard economic times, one of the more compelling cases for passage of a same-sex marriage bill is that the state of New York, and many of its municipalities, already recognize such unions when entered into in states and countries that permit them. It is therefore possible for New York's gay and lesbian citizens to bypass the strictures imposed by the status quo, thwarting the will of those New Yorkers who seek to prohibit gay and lesbian couples from getting married at all. Several of the places that allow such unions ' including Canada, Massachusetts, Connecticut and, most recently, Washington, DC ' are so close-by that New York couples find it relatively easy to cross the border lines, get married and return to New York.

Here, as is evident from the outcomes of the Godfrey and Lewis cases, they are entitled to many of the benefits marriage provides to traditionally married New Yorkers. What has been lost in this scenario is the revenue New York florists, tuxedo rental companies, catering firms and event venues might have realized had those couples taken their marriage vows in the State of New York. And the state is losing the tax revenues that would have come from the provision of those goods and services.

Janice G. Inman is Editor-in-Chief of this newsletter.a

In December, the New York State Legislature failed to pass a proposed same-sex marriage bill. As everyone knows, however, that is not the end of the story. More attempts will be made, and many issues surrounding same-sex marriage will continue to be debated and litigated. For example, due to the fact that the State of New York has a relatively high number of gay and lesbian couples, and Canada and neighboring states have laws allowing them to obtain marriage licenses and to marry within their borders, the number of legally married same-sex couples in New York has been on the rise. This circumstance has led to confusion over what rights, if any, same-sex married couples enjoy on state and local levels while living in New York.

In response to the confusion, some government entities in recent years have published policy statements meant to clarify the issue. Two of those pronouncements were the subject of the recent litigation in Godfrey v. Spano, — N.E.2d —-, 2009 WL 3849908 (11/19/09), which dealt with two separate but related cases. The November 2009 Court of Appeals decision upheld the validity of the policies in both cases that extended certain rights to New York same-sex couples legally married in other states or countries.

The Lawsuits

Lewis v. New York State Department of Civil Service

In one of the consolidated cases, Lewis v. New York State Department of Civil Service, a Policy Memorandum had been issued by the Commissioner of the New York State Department of Civil Service's extending health care benefits to same-sex married couples. This development prompted four New York State taxpayers to file suit in 2007 against the New York State Department of Civil Service and its Commissioner, Nancy G. Groenwegen. The suit alleged that the defendants violated State Finance Law ' 123-b, the separation of powers doctrine, the State Constutition and other state laws. They sought a declaratory judgment that defendants' recognition of out-of-state same-sex marriages was “illegal, unconstitutional, ultra vires, void and constitute[d] an illegal expenditure of State funds,” and a permanent injunction directing the defendants to cease and desist from recognizing out-of-state same sex marriages.

Peri Rainbow and Tamela Sloan, a same-sex couple who married in Canada, were permitted to intervene. They, along with the defendants, moved to dismiss the complaint, which Supreme Court did. That court relied for its decision on Martinez v. County of Monroe , 50 AD3d 189, lv dismissed 10 NY3d 856 (2008), in which the Appellate Division, Fourth Department, held that a Canadian same-sex marriage was entitled to recognition in New York under the common law marriage recognition rule. On appeal, the Third Department affirmed Supreme Court's Lewis order, concluding that the common law marriage recognition rule warranted dismissal of the plaintiffs' first cause of action. The court also found no separation of powers conflict because the defendants' recognition of same-sex marriages was within the scope of the policy expressed in Civil Service Law section 161 to provide benefits to the spouses and dependent children of state employees. The Third Department further found no violation of the State's constitutional prohibition against expending public funds on private interests (New York Constitution, art VII, ' 8(1), “Inasmuch as the Department's policy furthers a valid governmental purpose to benefit public employees, it cannot fairly be said that it is invalid as promoting a private undertaking” Finally, the court held that “the determination to recognize same-sex marriages is not invalid for the Department's failure to comply with the formal rule-making procedures of the State Administrative Procedure Act because the determination is an interpretative statement that is merely explanatory.”

Godfrey v. Spano

The other disputed policy statement ' the subject of the second case, Godfrey v. Spano ' came from Andrew J. Spano, the County Executive of the County of Westchester. He issued an Executive Order instructing “each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.” Westchester County Executive Order No. 3 of 2006.

In September 2006, three Westchester County residents and taxpayers brought suit seeking a declaratory judgment holding that County Executive Spano's order violated General Municipal Law ' 51 by illegally legislating in the areas of marriage and domestic relations in a manner inconsistent with New York's Constitution and other state constitutional provisions and laws. Supreme Court granted the motions to dismiss and declared that Executive Order “a valid exercise of the County Executive's power, not an illegal act, [which] does not violate the State Constitution or the Municipal Home Rule Law.” Plaintiffs appealed and the Appellate Division, Second Department, unanimously affirmed, finding that the Executive Order could not be illegal because its own terms limited the requirement that same-sex marriage be recognized only to “the maximum extent allowed by law.” Dismissal of the constitutional basis for challenging the law was warranted, said the Second Department, because the plaintiffs, as mere taxpayers without a more personal interest in the suit's outcome, lacked standing to sue.

Before the Court of Appeals

On appeal, the Godfrey v. Spano plaintiffs pressed only one of their claims: the General Municipal Law ' 51 claim that Spano illegally legislated in the areas of marriage and domestic relations. The Court of Appeals pointed out that ' 51 claims will lie only when the acts complained of are fraudulent or will waste public property for an illegal purpose. No fraud was alleged here, so the claim could go forward only if the policy espoused by the Executive Order wasted public funds for an illegal purpose. The court found no such expenditures here because Westchester County has for some time extended health-care benefits to the registered same-sex partners of county employees. Thus, no additional funds would be spent when a same-sex couple married and claimed benefits vs. when that same couple cohabited, registered with the county, and then claimed benefits.

Notably, although the court agreed that dismissal was proper, it was not impressed by the Second Department's reliance on the Executive Order's limitation of the recognition of same-sex couples as being “to the maximum extent allowed by law.” Said the Court of Appeals, “We find such language, which may appear either expansive or restrictive depending on the reader, ambiguous, and we would not encourage executive officials to try to insulate their orders from judicial review by this means.”

On appeal, the Lewis plaintiffs limited their causes of action to two: that State Finance Law ' 123-b had been violated, as well as the separation of powers doctrine.

With respect to the Finance Law claim, the Court of Appeals affirmed dismissal. Although the Lewis plaintiffs, like the Godfrey plaintiffs, could not claim any specific harm to themselves (as opposed to New York taxpayers in general), State Finance Law ' 123-b (1) confers standing on any taxpayer “whether or not such person is or may be affected or specially aggrieved.” However, the Lewis plaintiffs had alleged that the defendants were “expending and will expend State funds and/or resources supplied from New York State tax revenue,” but they pinpointed no specific expenditures that would not otherwise have been made by the State had the Policy Memorandum not been issued. In order to bring suit under the law, there must be a specific threat of an imminent expenditure. Quoting Saratoga County Chamber of Commerce Inc. v. Pataki , 100 NY2d 801, 813 (2003), the Court of Appeals noted that “courts have been inhospitable to plaintiffs who seek essentially to challenge nonfiscal activities by invoking the convenient statutory hook of section 123-b.” With these maxims in mind, the court found, as it did in Godfrey v. Spano, that because New York State employees had for many years been offered health-benefit coverage for their registered same-sex partners, there was no showing that additional state funds would be expended if married same-sex couples also were given health benefits.

The plaintiffs' separation of powers doctrine claim asserted that the President of the Civil Service Commission's action in recognizing same-sex marriages entered into in other jurisdictions was “inconsistently with the Legislature's pronouncements on spousal benefits.” Specifically, they alleged that the defendants acted in violation of Civil Service Law ' 164.

The court looked first at Civil Service Law ' 161(1), which says that the President of the Civil Service Commission is “authorized and directed to establish a health insurance plan for state officers and employees and their dependents and officers.” Next, it reviewed Civil Service Law ' 164(1), which provides that every state employee “shall be entitled ' to have his spouse and dependent children, as defined by the regulations of the president, included in the coverage upon agreeing to pay his contribution, if any, to the cost of such coverage for such dependents” (emphasis added). These statutes, taken together, expressly give the President of the Civil Service Commission the right to establish a state employee health insurance plan, as well as the authority to define “spouse.” In addition, the court noted, the statutes do not restrict the civil service president to providing health insurance only to spouses and dependent children of state employees. Thus, concluded the court, “The statute itself refutes plaintiffs' claim.”

Leaving It to the Legislature

In deciding the above cases, the Court of Appeals was able to affirm the dismissals of the two cases on narrow grounds. It therefore took the opportunity to decline to reach the defendants' argument that New York's common law marriage-recognition rule requires the State to recognize out-of-state same-sex marriages, in the same way it would recognize any other foreign marriage that is legal where performed but that would have been prohibited had the parties tried to marry in New York. The court, referring to its own admonition to the legislature in a previous case concerning the rights of gay and lesbian couples to marry, said, “We end, by repeating what we said in Hernandez v. Robles, [7 NY3d 338] expressing our hope that the Legislature will address this controversy.”

That hope was realized this year when the legislature took up the question of whether same-sex marriage should be permitted in New York. In December, New York's Senate shot down a bill, already passed by the Assembly, that would have extended marriage rights to such couples. The proposed legislation failed in the Senate by a wide margin, with 24 legislators voting for it and 38 against. If it had passed, Governor David Paterson had said he would sign it into law.

Naturally, many supporters were disappointed, including the New York State Bar. Last summer, the State Bar Association's House of Delegates adopted a resolution in favor of the measure. After the Senate vote, the Bar Association's President, Michael E. Getnick, issued a statement condemning the rejection and stating, “The State Bar has long supported equal rights for same-sex couples. With strong leadership from Governor Paterson, the Assembly and a core group of Senators, we will continue to work hard to ensure passage of legislation that will afford tens of thousands of gay New Yorkers the same protections, responsibilities and dignity that married heterosexual couples have long enjoyed. We are discouraged by the vote today, but we shall continue to go forward with seeking to secure the rights and dignity of all citizens of our State. It will remain one of our top legislative priorities.”

Also refusing to admit defeat was Susan Sommer, Director of Constitutional Litigation at Lambda Legal, one of the leading organizations dedicated to advancing the rights of gay, lesbian, bisexual, HIV-positive and transgender individuals. Sommer issued a statement on behalf of the group, saying, “As always, Lambda Legal will continue to make the case for equality and will continue to defend the state's recognition of out-of-state marriages, as we did in New York's highest court last month [referring to the decisions in Godfrey and Lewis]. But no matter how many times we defend families in court or how consistently the state upholds recognition of out-of-state marriages, same-sex couples in New York are still vulnerable to discrimination until they can marry in the state where they live. This is not over.”

Opponents of gay marriage in New York and elsewhere are, understandably, thrilled with the latest setback to a new same-sex marriage law. For example, Brian Brown, Executive Director of the National Organization for Marriage, issued a statement saying, “This is a huge win, it puts the nail in the coffin on the idea that gay marriage advocates can persuade a majority of Americans their cause is just. New York makes it crystal clear: The American people do not support gay marriage and they do not want their politicians messing with this issue.”

Financial Considerations

The religious, historical and social reasons behind support of and opposition to same-sex marriage laws are well known and will continue to be debated. These arguments will often fall on deaf ears, as each side is generally polarized in its opinions.

But there is another, less obvious, consequence of this ongoing battle for the State of New York and its citizens. In these hard economic times, one of the more compelling cases for passage of a same-sex marriage bill is that the state of New York, and many of its municipalities, already recognize such unions when entered into in states and countries that permit them. It is therefore possible for New York's gay and lesbian citizens to bypass the strictures imposed by the status quo, thwarting the will of those New Yorkers who seek to prohibit gay and lesbian couples from getting married at all. Several of the places that allow such unions ' including Canada, Massachusetts, Connecticut and, most recently, Washington, DC ' are so close-by that New York couples find it relatively easy to cross the border lines, get married and return to New York.

Here, as is evident from the outcomes of the Godfrey and Lewis cases, they are entitled to many of the benefits marriage provides to traditionally married New Yorkers. What has been lost in this scenario is the revenue New York florists, tuxedo rental companies, catering firms and event venues might have realized had those couples taken their marriage vows in the State of New York. And the state is losing the tax revenues that would have come from the provision of those goods and services.

Janice G. Inman is Editor-in-Chief of this newsletter.a