February 2, 2008

"Congratulations to all same-sex couples validly married outside of New York State: You are now husband and husband, wife and wife."

It's not the highest court in New York but:
Even though gay couples may not legally marry in New York, the appellate court in Rochester held that a gay couple’s 2004 marriage in Canada must be respected under the state’s longstanding “marriage recognition rule,” and that an employer’s denial of health benefits had discriminated against the couple on the basis of their sexual orientation.

“The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad,” a five-judge panel of the Appellate Division of State Supreme Court ruled unanimously in rejecting a 2006 lower court decision. “Until it does so, however, such marriages are entitled to recognition in New York.”

For more than a century, the court noted, New York State has recognized valid out-of-state marriages. Moreover, it said that the Court of Appeals, the state’s highest judicial body, has said the Legislature may enact laws recognizing same-sex marriages. “In our view, the Court of Appeals thereby indicated that the recognition of plaintiff’s marriage is not against the public policy of New York,” the court held.

25 comments:

rhhardin said...

Votes of the people are so messy.

ricpic said...

Screw the people, we know best.

fstopfitzgerald said...

Thank god nobody here is homophobic.

MadisonMan said...

Let's all listen to the majority. The majority clearly knows best.

fstopfitzgerald said...

Thank god everybody who opposed ending segregation in the 60s did so only because they believed in states rights.

Ben (The Tiger) said...

Enough with the complaining.

Niagara Falls was once known as the Honeymoon Capital of the world, right?

Well, it can be again, now, with a slightly more campy flavour.

Same-sex couples have an easy way to get married; those who oppose their marriages can continue to do so; and happy gay couples can get married and gamble, all in the same region.

Dave F said...

I say we just end marriage.

Problem solved.

Ben (The Tiger) said...

Funnily enough, a lot of people would go along with that -- make marriage only a religious & not a civil matter.

Ron said...

Arguing that because the Court of Appeals said the Legislature "could" legalize same-sex marriage seems to be saying that the Legislature "could" make same-sex marriage public policy. The court seems to be equating "constitutional" with "public policy" -- they are not the same.

Ron said...

Let me try that again: Legislatures, not courts, create public policy. So to say that because a Legislature could do something they didn't do is not an argument for saying it is consistent with public policy.

Palladian said...

Funny how some of the same people who disparage government by public opinion as unhealthy populism when it comes to issues like the Iraq war suddenly become raging "take it to the people" populists when the subject veers anywhere near "gay marriage". Typical human behavior: it's the Noble Will of the People when the People support or decry what one supports or decries, but the Tyranny of the Masses when one's own opinion and popular opinion are at odds.

My opinion? Marriage should no longer be the business of the state. An unrealistic proposition, but it would equitably solve all of these problems (while, of course, creating a bunch of new ones).

Danny said...
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Danny said...

There we go. Ron, a commentor on the blog of Ann Althouse introduces the fierce legal reasoning that causes the New York State Supreme Court to gasp in intellectual amazement and rescind their now obviously antiquated ruling.

Bissage said...

Hernandez v. Robles, 7 N.Y.3d 338, 855 N.E.2d 1, 5-6, 821 N.Y.S.2d 770 (2006) began its discussion, as follows: “All the parties to these cases now acknowledge, implicitly or explicitly, that the Domestic Relations Law limits marriage to opposite-sex couples. Some amici, however, suggest that the statute can be read to permit same-sex marriage, thus mooting the constitutional issues. We find this suggestion untenable.”

If comity is limited by something so diffuse as policy, then how can it not be limited by something so super-ordinate and concrete as statute? If there needs to be an express statutory bar to comity then policy is no limitation at all and we should stop saying it is.

If marriage is fundamental, then the interest in sovereignty is paramount, and that should weigh against the extension of comity. In other words, a state should jealously guard its prerogatives regarding the regulation of so basic a unit of social order.

This “marriage recognition rule” sounds kind of wacky, unless we admit marriage is no big deal, after all.

I must be missing something.

P.S. The appellate opinion isn’t up yet.

Ignorance is Bliss said...

So I assume that if I go someplace that allows polygamy, get married to 5 other people, then we all move to New York, our marrige will be recognized? And my employer would be required to extend my health insurance to everyone?

Good thing there wouldn't be, like, a slippery slope or anything.

Bissage said...

BTW, I suspect that article got it wrong when it said: “the appellate court in Rochester held that . . . an employer’s denial of health benefits had discriminated against the couple on the basis of their sexual orientation.”

Shouldn’t that be “[basis of their marital status?]” The college didn’t deny benefits because the spouses were both lesbians. The college denied benefits because the purported spouse was not a spouse under N.Y. law.

Pretty sure about that.

I mean, if the employee was a male homosexual and the spouse was a lesbian, then there would never have been a denial of benefits.

Right?

Bissage said...

Danny, on behalf of Ron, bite me.

BTW: (1) you should have said “would cause” not “causes”; (2) in New York the Supreme Court is the trial court of general jurisdiction; (3) it is proper to refer to a court in the singular and it is not a person; and (4) Ron was suggesting that the Appellate Division decision was poorly reasoned in an important aspect and not that the outcome was “antiquated.”

Next time, try not to be so much a smacked ass.

walter neff said...

"Danny, on behalf of Ron, bite me"

Bissage, you obviously made a mistake. This should be posted in the cannibalism thread.

Joe said...

What nonsense; the State of New York only recognizes marriages it would otherwise deem legal in the state. It doesn't recognize polygamous marriages or a marriage between a 25-year-old man and a nine-year-old girl. I doubt it recognizes a marriage between a man and a horse, which I'm sure you can legally obtain somewhere on this planet.

(BTW, I'm in the camp that says the state provides civil unions for whoever wants them, including polygamists, and leaves "marriage" to churches. I've even entertained the idea of making prenuptial agreements illegal and requiring all couples to state how property will be split in the case of death in the civil union contract.)

hdhouse said...

ahhh joe and the typlical conservative canard...

errr joe, would you give me an example where a man/horse marriage is legal? anywhere? anyone? frye? buellar?

Sheriff Cobb said...

A little know fact that in 1966, Alan Young the star of Mr. Ed eloped with his co-star who in fact was a gelding named Bamboo Forester. This was the most scandalous case of two stars falling in love since the case of Richard Burton and Elizabeth Taylor. Since Mr. Young was a homosexual and Mr. Ed was a gelding, it was not technically a same sex marriage. The nuptials were performed in Tijuana where the marriages were normally between Mexican Strippers and burros, but the alcade had a very liberal attitude. They lived together for twenty happy years. In a touching scene, Mr. Young was with Mr. Ed at his death stall where his last words were "Oh Wilburrrrrr......"
(Walter Brooks, The E True Hollywood Story of Mr. Ed and Wilbur)

walter neff said...
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Sheriff Cobb said...

The studio heads at CBS were very concerned about the premise of the show. How could a guy with such a hot wife as Connie Hines spend all of his time in the barn with a horse? I mean just look at her knockers. Firm, huge and perky. Who in their right mine would be smelling horseshit and stroking a palomino instead of banging that sweet piece of ass. But it was the sixties so it was all implied. Just a subtext that was running under the surface of the plot. Sort of like Paul Lynde in Bewitched. You knew something was up but you didn’t know what it was all about. Equine love was exotic and unknown to the general public. It wasn’t until the riots at Pimlico in 1969, that man on pony love could come out of the barn and into the light of day.
(Walter Brooks, The E True Hollywood Story of Mr. Ed and Wilbur)

Sheriff Cobb said...

The pony/man love crowd tried to stay under the radar in Hollywood. They would never go out in public as a couple because no one could accept the love that could not whinney its name. They would meet at house parties in various locations in the Hollywood Hills. Of course because it was such an insular subculture, there was a lot of drinking and drug abuse. And lot’s of promiscuity. There were frequent swinger parties where they would just throw their bridles on to the table and you could ride another partner home. Those were wild days.
(Walter Brooks, The E True Hollywood Story of Mr. Ed and Wilbur)

Sheriff Cobb said...

The grand old man of the pony/man love association was of course Roy Rodgers. Dale was just a beard. His love and devotion toward Trigger was legendary. He was heartbroken when his partner died. He could not let him go. He famously had him stuffed and displayed in the Roy Rodgers museum. Of course he had mounted him many, many times.
(Walter Brooks, The E True Hollywood Story of Mr. Ed and Wilbur)