A New York Appellate Court Gives Effect to a Canadian Same-Sex Marriage: Using Traditional Rules to Validate a Non-Traditional Marriage
By JOANNA GROSSMAN
|Wednesday, Feb. 06, 2008|
In a unanimous decision, an appellate court in New York ruled last week that a same-sex marriage celebrated in Canada must be given effect in New York. The ruling in Martinez v. County of Monroe draws correctly on traditional rules of marriage recognition to give effect to a marriage that the state's highest court has said could not have been celebrated here in the first instance.
The court thus upheld a longstanding - but recently overlooked - distinction between marriage celebration and marriage recognition, and the simple but important principle that states should do their best to honor marriages celebrated elsewhere.
The Facts, Lower Court Ruling, and Arguments on Appeal in the New York Case
Patricia Martinez and Lisa Ann Golden entered into a valid same-sex marriage in Ontario, Canada in 2004. Same-sex marriage has been legal in the Province of Ontario since 2003, and in Canada generally since 2005. First, courts in several provinces ruled that bans on same-sex marriage violated the country's Charter of Rights and Freedoms (akin to the U.S. Constitution). Subsequently, the Canadian Parliament enacted a law permitting same-sex marriage nationwide. (I describe some of these developments in a prior column.).
Like most countries and American states, Canada does not require residency as a precondition of marriage. So Golden and Martinez were well within their rights to celebrate their marriage in Canada and then return home to New York. But they had no assurance that, when they returned, public or private entities in New York would treat them as married.
Shortly after the wedding, Martinez applied to her employer, Monroe Community College (MCC), for spousal health benefits for Golden, a benefit clearly provided to opposite-sex spouses. MCC refused to extend benefits to Golden, and Martinez sued. However, the trial court dismissed the case, ruling that since the marriage was not valid in New York, Golden was not a "spouse" and thus was not entitled to any of the benefits accorded other, legal spouses.
On appeal, Martinez made two claims. First, she argued that Golden is her legal spouse under New York law. Second, she argued that MCC's denial of spousal benefits, which were automatically granted to opposite-sex spouses, constituted unlawful sexual orientation discrimination under New York law. She prevailed on both arguments.
Celebration v. Recognition of Marriage: Two Different Questions
At the moment, same-sex marriages cannot be legally celebrated in New York. Although the New York legislature does not expressly define marriage to exclude same-sex couples, the state's highest court ruled in 2006 in Hernandez v. Robles that the marriage laws implicitly forbid same-sex marriage. In that decision, the court also rejected a constitutional challenge to such a ban, holding that the ban did not violate either the due process or equal protection clause of the New York constitution. There is, the court wrote, no fundamental right to marry a person of the same-sex, nor any robust constitutional protection against sexual orientation discrimination.
Over a vigorous dissent by the court's Chief Judge, Judith Kaye, the majority applied its lowest standard of judicial scrutiny - rational basis review - and upheld the ban as conceivably related to the state's interest in promoting stable home environments for children. (I explored the details and significance of this case in a previous column.) The current Governor has expressed strong support for same-sex marriage, and there is some likelihood the legislature will go for it. But for now, Hernandez means that same-sex marriages cannot be legally celebrated in New York.
What is the relevance of Hernandez to the question presented in Martinez? Absolutely none. The question whether a marriage can be legally celebrated in a jurisdiction is entirely distinct from the question whether the marriage should be given effect in the state.
The rules of marriage differ from state to state. Although today there is relatively little variation, states historically had longstanding disagreements about who should be permitted to marry, and under what circumstances. At various points in history, states disagreed about the permissibility of marriage by minors, interracial marriage, marriage by those carrying communicable diseases, marriage between cousins or in-laws, and common-law marriage.
Amid these disagreements, states developed a set of principles to guide interstate conflicts that arose when a couple legally married in one state, but then moved to or traveled through another. These rules of interstate marriage recognition were not dictated by constitutional mandates, but grew, instead, out of the common law principle of comity - respect for the actions of sister states. Comity dictates that states should at least sometimes give effect to marriages celebrated in other states that they themselves would not have allowed.
The Basic Rules of Marriage Recognition and New York's Status as a Permissive State When It Comes to Marriage Recognition
The rules of marriage recognition were developed piecemeal, across different courts, different states, and different marriages. And states fell on a spectrum - from those most willing to recognize out-of-state marriages, to those least willing to do so. New York historically fell on the "most willing" end of the spectrum, and the ruling in Martinez reinforces that tradition. New York's highest court has recognized, for example, a common-law marriage even though the New York legislature had abolished common-law marriage by statute, a marriage between an uncle and a niece of the half blood, an underage marriage, and a "proxy marriage" (where only one party shows up to the ceremony), even though New York would not itself have permitted any of these marriages in the first instance.
What set of rules led courts to give effect to the marriages at issue in these cases?
The first rule of marriage recognition is the "place of celebration" rule - the idea that a marriage is valid everywhere if valid where celebrated. Most states apply some version of this rule to marriage recognition cases.
But the rule is not absolute. Historically, there were two exceptions. States could refuse recognition to an out-of-state marriage if it violated either "natural law" or the state's "positive law".
Under the "natural law" exception, courts tended to refuse recognition to marriages that were considered universally abhorrent - polygamous unions or incestuous ones between close relatives. In an early New York case, the court articulated this exception as permitting non-recognition for marriages that are "offensive to the public sense of morality to a degree regarded generally with abhorrence."
Under the "positive law" exception, courts refused recognition to marriages when the legislature had not only prohibited celebration of a particular marriage, but had specifically provided that marriages of that type should not be given extraterritorial effect. For the most part, state marriage bans did not extend this far. Some states had so-called "marriage evasion" laws that refused recognition to marriages by their own residents who left the state for the express purpose of evading a marriage restriction. But very few other marriage bans prohibited recognition, as well as celebration, of marriages.
Traditional Rules, New Marriages
In the early years of the same-sex marriage battle, the question of marriage recognition was not ripe. You need a marriage validly celebrated somewhere before testing its validity elsewhere. It was only when some foreign countries - Spain, Canada, the Netherlands, South Africa - and one American state - Massachusetts - legalized same-sex marriage that this question was finally queued up for decision.
Although there is no reason that the traditional rules of marriage recognition ought not to apply in the context of same-sex marriage, the landscape is different than it was during battles over, for example, interracial marriage. Nearly every state has adopted either a statute or a constitutional amendment - both of which qualify as the "positive law" of a state - that expressly prohibits both the celebration and recognition of same-sex marriages. This sort of widespread preemptive strike against recognition is historically unprecedented. Nonetheless, in those 40-some states, courts could apply the positive law exception to the place-of-celebration rule and refuse recognition to an out-of-state (or out-of-country) same-sex marriage. (There is an argument that these statutes and amendments violate federal constitutional guarantees of due process and equal protection, but no court has yet held that they do.)
In New York, however, where Martinez lives, there is no positive law banning same-sex marriage. New York is one of the very few states that has neither adopted a mini-Defense of Marriage Act (DOMA) nor amended its constitution to prohibit same-sex marriage. The court in Martinez thus correctly ruled that the positive law exception does not apply.
It also held that the natural law exception does not apply. Indeed, it would be hard to argue that same-sex marriage is "universally abhorrent," given that one American state recognizes full-fledged marriage for same-sex couples and several others grant them marriage-equivalent statuses. Neither bigamy nor incest - the marriages usually encompassed by this exception - ever gained such traction in the United States.
The defendants in Martinez also argued that there is a general public policy exception to the rules of marriage recognition. Even if that were true - and there's no good reason to think it is - New York has no official public policy against same-sex relationships. The Hernandez court ruled that current law does not permit them, and that the constitution does not compel them. However, those rulings do not imply that same-sex marriages are somehow inconsistent with the public policy of the state. Indeed, the court in Hernandez encouraged the legislature to take up the question of same-sex marriage directly.
The court in Martinez thus concluded that same-sex marriages validly celebrated in another jurisdiction are entitled to recognition in New York. This ruling - which rendered Golden a legal "spouse" in New York - paved the way to Martinez's ultimate victory. New York law (specifically, Executive Law § 296) prohibits employers from discriminating against employees on the basis of sexual orientation. To deny spousal benefits only to same-sex spouses runs afoul of this anti-discrimination law. (The court did not reach Martinez's claim that MCC's denial of benefits violated the state constitution's guarantee of equal protection.) Martinez was thus entitled not only to spousal benefits, which the defendant had already conceded, but also to damages for the period during which they were denied.
A Possible De Facto Legalization of Same-Sex Marriage and Equal Healthcare Benefits in New York
In a simple, straightforward opinion, the Martinez court has upheld a longstanding and important principle: marriage should be a portable status. It is unfortunate that so many states have mooted the ability of their courts to give effect to same-sex marriage by statute or constitutional amendment. The question of marriage recognition has always been left to, and best handled by, the courts.
Now, New York same-sex couples are very free to follow Martinez and Golden's example by marrying elsewhere and then using their status to secure equal spousal healthcare benefits in New York. The result should alleviate pressure on same-sex couples when, for example, one partner seeks to stay home to take care of a child and seeks to still receive health coverage. In this sense, although same-sex marriage cannot legally be celebrated in New York, once the actual wedding day passes, New York has offered same-sex couples far greater equality, through this decision, than was previously the case.