Thursday, June 5, 2008

Excellent Summary- Anti-Guv Suit Faulty

This is an excellent summary of the NY situation with the Paterson decision to recognize legally performed marriages.

GayCityNews - Anti-Guv Suit Faulty


Governor David Paterson acted clearly within his executive authority and with prudent attention to both long-standing precedent and a series of recent court rulings.
The Alliance Defense Fund, an Arizona-based right-wing litigation organization, filed a lawsuit in Bronx County Supreme Court on June 3 on behalf of five individual Republican state senators, seeking an injunction against Governor David A. Paterson's order that New York State government agencies extend recognition to marriages of same-sex couples contracted lawfully in other jurisdictions.

At the same time, a spokesman for the Senate Republican conference, John C. McArdle, told the New York Times that it was unlikely that the GOP senators as a group would do anything, either legislatively or through the courts, to counter the governor's move.

The lawsuit, charging that Paterson exceeded his authority and violated the prerogatives of the Legislature, totally misconceives the nature of marriage recognition as practiced under New York law, and essentially asks the courts to order the governor not to comply with their own recent rulings.

On February 1, a unanimous five-judge panel of the New York State Appellate Division, Fourth Department, based in Buffalo, ruled in Martinez v. Monroe Community College that two women married in Canada, Patricia Martinez and Lisa Ann Golden, were entitled to have their marriage recognized by Martinez's employer, and that the college's refusal to include her spouse under the employee benefits plan violated the New York Human Rights Law.

The conservative upstate court, whose judges were elected by voters in Western New York and four of whom were appointed to the Appellate Division by former Republican Governor George Pataki, concluded that the 2006 Hernandez v. Robles decision by New York's highest court - finding that the state Constitution does not compel the state to issue marriage licenses to same-sex couples and that the existing gender-neutral marriage statute cannot be interpreted to authorize such marriages - did not address the issue of recognition of marriages contracted out-of-state.

The New York State Legislature has not passed any law instructing either the executive branch or the courts how to deal with the question of marriage recognition. Instead, the process has evolved over the course of the state's history through ad hoc decision-making - by public officials confronted with the question whether to recognize certain out-of-state marriages for specific purposes, such as payment of benefits to a surviving spouse, for example, and in the case-by-case decisions of courts faced with similar questions.

Looking at this history, the Appellate Division found that New York State normally recognizes marriages that were valid in the place and at the time they were contracted, unless such recognition would be "abhorrent" to New York law. Past cases suggested that various kinds of marriages not authorized by New York statutes would nonetheless be recognized - including those between first cousins allowed in some other jurisdictions, marriages of younger people in states with lower ages of consent, and common law marriages.

The case of common law marriages is most relevant for the issue of same-sex unions. Before governments got into the business of licensing marriages, common law marriage was the norm for couples who did not desire a religious ceremony. Two people set up housekeeping together, declared themselves to the community as married, and their relationship would be recognized by the state after a reasonable period of time. By the early 20th century, most states had concluded that this informal arrangement was inadequate in light of the number of benefits and responsibilities that had been added to the status of marriage through federal and state laws.

A "bright line" was needed to determine who was married, and the state wanted to impose some eligibility requirements for public health reasons, so New York, like most other states, legislatively abolished common law marriage. Some states, however, retained common law marriage, and New York courts had to rule about whether those marriages were recognized when questions arose about couples who moved here or owned property here.

Despite the legislative ban on forming common law marriages in New York, the state courts recognized them if they complied with the law of the state where the couple previously resided, even though they lacked the license and formality of New York law.

This provided a clear precedent for the Appellate Division, which additionally noted that same-sex marriages would not be found "abhorrent," considering that New York had already gone a long way toward recognizing the family status of same-sex partners, from the Court of Appeals' historic Braschi decision in 1987, protecting surviving same-sex partners from eviction from rent-controlled apartments, to the many municipal domestic partnership laws in the state, the adoption of domestic partnership benefits for state employees, and the State Assembly's recent passage of a bill allowing same-sex couples to marry.

One could hardly label as "abhorrent" a concept that had recently been embraced by one house of the Legislature. And, unlike most other states, New York has not reacted to the controversy over same-sex marriage by passing a state-level Defense of Marriage Act prohibiting the recognition of same-sex marriages here.

The Appellate Division's ruling set a precedent for trial courts throughout the state. A few weeks later, on February 25, a trial judge in Manhattan ruled in Beth R. v. Donna M. that a same-sex couple married in Canada could get a divorce in New York because their marriage would be recognized here, following the Martinez precedent. The next week, on March 3, another state trial judge, this time in Albany, rejected a lawsuit by the Alliance Defense Fund against the state Civil Service Department, challenging its decision to recognize out-of-state same-sex marriages for purposes of administering the employee health program for state employees.

Not long after that, on March 25, the Second Department of the Appellate Division, based in Brooklyn, vacated a ruling by a Nassau County trial judge that had refused recognition of a Canadian same-sex marriage. Duke Funderburke, a retired public school teacher, was suing to get his husband onto the health plan offered to retirees and their spouses.

That case had in fact been settled by the parties prior to the appellate ruling when the State Civil Service Commission, which oversees the school district's benefits plan, decided it would recognize same-sex marriages, but the Second Department panel unanimously granted a motion by Funderburke's lawyers to vacate the trial court's decision, citing the Martinez case.

This was a significant development - the Fourth Department ruling is at present a controlling precedent for trial courts statewide, but it does not control the other Appellate Departments, which are free to disagree. If two Appellate Departments differ, a statewide precedent can only be restored by the Court of Appeals.

In other words, in the short space of two months, there were already four cases where the courts were lined up to recognize same-sex marriages contracted elsewhere by New Yorkers.

Governor Paterson's legal counsel, David Nocenti, advised the governor of these developments and recommended that, in light of this rapidly expanding body of judicial decisions, it was prudent to get out in front of the issue and get all the state executive agencies on the same page, to avoid unnecessary and unproductive litigation. The governor could have waited for a definitive ruling by the New York Court of Appeals, but that was not likely to come for some time.

In fact, on May 6 the Court of Appeals quickly rejected Monroe County's premature attempt to appeal the Martinez decision before the trial judge had entered a final order in the case.

Events were moving fast enough to make the question of New York's position on marriage recognition urgent. When the governor acted, the California and Connecticut Supreme Courts were poised to rule in same-sex marriage cases, and neither jurisdiction has a residency requirement for marriage licenses. The small trickle of same-sex couples marrying in Canada could easily be dwarfed by the numbers drawn by the chance to marry without having to leave the country.

The evolving political situation in neighboring Massachusetts is also a factor that likely was part of the calculation. The Legislature there, with the support of Democratic Governor Deval Patrick, has begun the process of repealing a 1913 statute that prohibits issuing licenses to non-resident couples from states that have some sort of policy against their marrying there (in New York's case, the 2006 Court of Appeals ruling against gay marriage).

Paterson actually proceeded cautiously, authorizing the internal distribution of Nocenti's memo to state agencies on May 14, weeks before a California decision had been expected in early June. The June 30 deadline given to state agencies in Nocenti's memo would allow them to be ready to respond to same-sex couples married in California by early July.

Nocenti's memo directed state agencies to determine what would need to be changed in their rules and regulations in order to recognize same-sex marriages contracted out of state, and to report back by June 30. Everything was internal, nothing public, and possibly the governor, a consultative type of guy, was planning to discuss the issue with legislative leaders before making a formal announcement, but advice and consent was not required by state law in making this executive decision.

The California Supreme Court surprised everybody by issuing its marriage decision on May 15, several weeks before its 90-day deadline had elapsed. Suddenly there was a possibility of large numbers of New York couples getting married in California as early as mid-June - and with the issue suddenly in the public consciousness, somebody leaked the Nocenti memo to the press, the governor's office confirmed its authenticity, and the story went public sooner than anticipated, before consultation had taken place.

This led to erroneous charges that the governor was improperly taking unilateral action in response to the California case. Republican State Senate Majority Leader Joseph Bruno rattled his sword and said his staff was looking into taking legal action. The Alliance Defense Fund, stalwart opponents of same-sex marriage, announced they would file suit against Paterson.

But what was the governor actually doing? He was obeying his oath of office, to uphold the Constitution and laws of the state of New York, and acting as a prudent chief executive, managing the affairs of the executive branch of the state government.

Having been advised, accurately, that the state courts were consistently ruling that these marriages had to be recognized, noting that the Assembly has passed a bill supporting same-sex marriage, making it very unlikely that any legislation opposed to recognizing same-sex marriages would be passed by the Legislature, the governor took the logical step of a prudent executive and moved to get state agencies subject to his direction prepared to deal in a consistent way with the marriage recognition issue already in play all across New York due to Canadian marriages.

What are the chances that the Alliance Defense Fund's lawsuit will succeed in countermanding the governor's order? The Martinez decision is a binding precedent on the trial courts, so no trial judge in the state should rule against the governor on this.

One has to question why the suit was filed in the Bronx, when the defendant's official residence is in Albany? Perhaps, thinking strategically, ADF was trying to avoid a county where a trial court has already ruled on the issue, and to steer the question to the First Department of the Appellate Division, which despite its Manhattan location had been "packed" by Republican Pataki with conservative judges elected upstate, a situation that Eliot Spitzer had barely begun to correct when he resigned several months ago.

Ultimately, however, the question must be decided by the Court of Appeals, since the governor would promptly appeal any injunction issued against him by a lower court.

On the merits, it seems unlikely that the unanimous view of the Fourth Department panel and the implicit concurrence of a Second Department panel will be rejected by the Court of Appeals. Since the Legislature has not spoken on the issue, it falls to the governor and the courts to decide whether to recognize same-sex marriages, an exercise in discretion and judgment unlikely to be reversed unless the highest court is prepared to sharply alter its existing precedents on marriage recognition - a possibility but not a probability.

In the 2006 Hernandez case, the court indicated that although same-sex couples were not entitled to marry in New York, neither did the Constitution prohibit them from marrying. This was not a ruling that same-sex marriage is "abhorrent," merely that state officials have not been legislatively authorized to issue licenses for the performance of marriages by same-sex couples within the state and that such couples had no constitutional basis to change the status quo.

Was the governor guilty of violating "separation of powers?"

Definitely not.

Executive branch officials frequently decide on an ad hoc basis whether to recognize marriages contracted out-of-state by foreign immigrants, tourists, people who are here to do business, or those who move here from other states. Such decisions have been made in the course of routine administration of state laws since the founding of New York without any instruction by the Legislature, and they have frequently involved recognizing marriages that could not have been contracted here.

Paterson was merely moving that process forward to avoid having inconsistent ad hoc decisions made on this issue when New Yorkers return from Canada or California or other places seeking recognition of their same-sex marriages. While it is unusual for the chief executive to interject himself into what has been a routine function of the departments under his control, it does not involve crossing any separation of powers lines and is sensible in light of the evolving reality of same-sex marriage.

This could be a legislative decision, if the Legislature were actually to take the matter of out-of-state same-sex marriages, debate it, and pass a bill, but they have not done so, and show no inclination to do so now. By default, the front-line decision-makers on marriage recognition are in the executive and judicial branches.

That is how it has always worked in New York State.

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