Fresh Litigation Route For NY Gay Marriage

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Remember that great song where Sinatra croons, “Love and marriage go together like a horse and carriage, it’s an institute you can’t disparage”?

Well, for the gay and lesbian citizens of the State of New York, the “institute” has been quite disparaged. And while Frank failed to mention it, marriage is not just about love, it’s also about economics and the law. The discriminatory denial of the fundamental right of marriage to same-sex couples works real and substantial hardships on many New Yorkers.

For example, studies show that a same-sex unmarried couple can end up paying $450,000 more over their lifetimes than an opposite-sex married couple due to differential taxation, estate planning treatment, and, of course, insurance costs. In fact, when New York’s highest court, the Court of Appeals, upheld marriage discrimination in 2006, the court acknowledged that New York affords married couples at least 316 benefits, including the “right to be treated as family members in obtaining insurance coverage.” Advocates have identified more than 1,000 rights and benefits of marriage under state law.

Even as it refused to recognize a right to marriage for gay and lesbian couples under New York’s Constitution, the Court of Appeals invited the State Legislature to address the issue. The New York State Assembly thereafter passed a same-sex marriage bill no less than three times. The State Senate, however, failed even to vote on the matter for three years; and when it held a belated vote in December, it refused to pass the bill.

To add insult to injury, 37 of the 38 senators who voted “no” declined, during the floor debate, even to give a reason for denying same-sex couples this fundamental right.

The good news is that some gay and lesbian New Yorkers now have the ability to enjoy at least 316 benefits that New York’s judiciary and Legislature have, so far, unjustly refused them, and I am proud to say that I was able to play a role in addressing this ongoing injustice.

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Five states, including bordering Connecticut, Massachusetts, and Vermont, as well as several other nations, currently allow same-sex marriages. Since 2008, New York has recognized such marriages entered into in other states and countries. During my tenure as the New York Superintendent of Insurance, I ordered all insurance companies doing business in New York to recognize the marriages of same-sex couples who were legally wed elsewhere.

As a result of that regulatory action, New York insurers must now provide the very same property, life, and health insurance policies and benefits to same-sex married couples that are available to opposite-sex married couples under the state’s insurance laws.

It is, however, fundamentally unfair that only those same-sex couples who are able to travel elsewhere to get married can have their unions recognized in New York — and thereby obtain the economic and legal benefits that marriage allows. It is the least wealthy, and therefore the most economically vulnerable, same-sex couples who are also least likely to have the wherewithal to leave New York to get married — and therefore are being left without any of the crucial economic and legal benefits of marriage in our state.

The differing treatment of couples who can leave the state to get married and those without the means to travel only serves to underline the irrationality of the current state of the law. Indeed, it may provide a new basis to challenge the unjust 2006 ruling in the courts.

If I have the privilege to become New York’s next attorney general, I will — as the state’s chief law enforcement officer — ensure that every state agency and private company provides those same-sex couples who are able to marry outside New York with the benefits and rights they are entitled to under New York law. Furthermore, I will ensure that New York continues to advocate for the marriage rights of gays and lesbians in the courts.

Simply put, the Court of Appeals’ conclusion that the unequal treatment of lesbian and gay New York couples is permitted under the due process and equal protection guarantees of our State’s Constitution is wrong, and should not stand. I look forward to the day when “love and marriage” really do go together for gay and lesbian New Yorkers.

Eric Dinallo, a former superintendent of insurance for New York State, is a professor at New York University’s Stern School of Business and a candidate for New York State attorney general.