EDGE Boston :: News

EDGE Boston :: News

by Scott Stiffler
EDGE Contributor
Thursday Mar 6, 2008




When a New York appellate court ruled that out-of-state same-sex marriages were legal there, it marked a major step in the establishing gay marriage in this country.

But the victory, while certainly another step in the right direction, was maddeningly ironic: New York queers who want to get married still can’t do so in their home state--which will, however, recognize them if done elsewhere.

Be warned, however, before moving to Massachusetts or planning a honeymooning in one of the enlightened countries that let same-sexers walk down the aisle: there are serious implications to consider. EDGE spoke with a number of activists, legal hawks and policy wonks as to what the decision means in the big picture--and where we go from here.

The Feb. 1 decision, Martinez v. County of Monroe, by a New York appellate court examined the case of a lesbian couple residing in New York who had a 2004 marriage in Canada and sought a divorce.

The decision compelled New York state law to recognize the marriage and, in doing so, set the stage for the couple to proceed with their divorce (as opposed to simply declaring their union null and void). Prior to the ruling, their divorce could not take place, as their marriage carried no weight under state law.

Paul Cates, director of the Public Education for the ACLU’s LGBT Project, clarifies how the essence of this decision differs from earlier unsuccessful lawsuits that asked New York courts to say that barring same-sex couples was unconstitutional. This case, rather, asked if the state must recognize a marriage that took place outside the state.

"That issue is a lot easier for them to interpret," Cates said, "because New York recognizes marriages from out of state. It’s a very different legal standard."

Even as the decision advances the cause in one respect, it also creates a baffling double standard. "It points out that there is no logical reason why people cannot be married in the state," said Molly McKay, spokesperson for Marriage Equality USA. "What possible public policy could be served by requiring its same sex citizens to go outside of the state, get married and come back in?"

State Laws a Patchwork
Still, the ruling obligates New York to respect marriages performed elsewhere and acknowledges that other states and countries have valid same sex unions in the eyes of the law.

But there’s a big difference between recognizing something in a state--or even many states--and recognition at the federal level. "Even in Massachusetts," McKay said, "gays and lesbians are treated ’equally’ in the exclusion from federal relationship protections." That’s 1,138 rights automatically bestowed upon people by marriage.

Another inequality--or absurdity--created by the patchwork of state laws and judicial rulings comes to the fore when you realize that Massachusetts has a law (virtually unknown until enforced by then-Gov. Mitt Romney) that says that unless you live there, you can’t go there and get married. That creates the scenario where same-sex couples that live in Massachusetts can enjoy state-conferred marriage benefits when they move to New York. But a New York couple can’t employ the services of a Bostonian Justice of the Peace without relocating.

The New York ruling means that couples can go to most of Canada, Spain, the Low Countries, or Scandinavia, and return to have those marriages recognized.

Cates stops far short of encouraging New Yorkers to marry elsewhere, because, "There’s a chance that the court of appeals will not agree with the Rochester court." That, plus the sobering fact of long-term consequences for those whose marriages conducted up north eventually go south.

Canada has a one-year waiting period for divorce. "If the court of appeals disagrees," Cates noted, "you could be stuck in a situation where you’d have to move to Canada and live for a year."

Does this precedent mean that gay marriage, now legal in at least one state, will eventually be recognized everywhere?

David Buckel, Marriage Project director for Lambda Legal, believes so. "The question is, how long is it going to take?" he asks.

McKay agrees: "From all different angles around the marriage equality debate, all roads are pointing to marriage equality being the inevitable result," despite the "patchwork quilt of relationship protections for same-sex couples." When people think of themselves as U.S. citizens, they expect their rights and protections will be consistent across the nation.

Yet Cates believes the New York decision means that other courts in other states are going to be asked this question sooner or later. Now that recognizing out-of-state- marriages is a matter of law in New York, those arguing in other states can cite it as precedent.



New York marriage equality advocates are hopeful that the ruling and a state administration firmly on their side points to the Empire State being the second to make gay marriage legal.

"New York is historic in that it is the first state in the country where a sitting governor has introduced a marriage equality bill," Buckel noted. All eyes are on New Jersey or New York, he added, to see which state will be the first in the country to legislate same-sex marriage. In California, the legislature twice voted for marriage equality, but the governor vetoed it both times; in New Jersey, Gov. John Corzine has said that if the state government puts a marriage equality bill on his desk, he’ll sign it.

Until other states follow Massachusetts, however, we’ll be stuck in what McKay calls a "holding pattern," where legal status for couples varies state to state. "We’re going to see a lot of horror stories like we’ve been hearing where registered domestic partners in one state travel to another state where they’re treated as legal strangers," she added.

That creates a situation where the mere act of crossing the state line puts you worlds away from the protections you’ve become accustomed to. A parent who moves out of state may no longer be able to enforce child support payments, for example,

Like Interracial Couples in the 1940s
Meanwhile, states like New Jersey grant rights under separate but unequal civil unions or domestic partnerships. McKay likens gay couples outside of Massachusetts to interracial couples several decades ago whose marriage validity differed from state to state. In 1948, California was the first state to break down its ban on interracial couples for marriage. But it wasn’t until 1967 until the U.S. Supreme Court struck down provision in the remaining 13 states that still had laws on the books banning interracial couples from getting married.

For now, even though our side lost in states like New York and Washington, we won in Washington, where the Legislature passed a statewide domestic partnership bill. Even when legal groups lose their court battles, Buckel said, "It prepares a foundation for favorable legislative advancement."

In New Jersey, Lambda Legal won in the high court (Lewis v. Harris), which said same-sex couples should get equal benefits. But the court left it to the Legislature to decide what to call it: marriage or something else. The legislature decided to create civil unions similar to those granted in Vermont, the first state to enact a statewide recognition of same-sex marriages under then-Gov. Howard Dean.

In her book, Beyond (Straight and Gay) Marriage: Valuing All Families under the Law (Beacon Press, 2008), Nancy D. Polikoff, a law professor at American University, argues, "Marriage is a very good civil rights goal," but that the larger issue is "family policy and not making marriage the dividing line between relationships that count and those that don’t count in the eyes of the law."

Polikoff cites a number of examples of what she considers good family policy, such as compensation for the death of an economic provider. Polikoff believes worker’s comp death benefits should be granted not just to a spouse, but "anyone who was economically dependent on the deceased," who should be able to bring a lawsuit." Harvey Milk’s surviving partner received death benefits, for example.

Although she supports same sex marriage as "a matter of civil rights and equality," Polikoff notes that it still doesn’t "address the needs of an enormous [number] of gay and straight relationships and families."


Scott Stiffler is a New York City based writer and comedian who has performed stand-up, improv, and sketch comedy. His solo shows include Damaged by the 70s and An Evening With Insane Mark Twain & Dead Bette Davis. He must eat twice his weight in fish every day, or he becomes radioactive.