On May 6, New York's highest court handed down the latest decision in battle for the legal recognition of same-sex relationships. Its decision in Martinez v. County of Monroe, which was misunderstood by several commentators, let stand a dramatic but little discussed February ruling of a lower appellate court that said New York will recognize same-sex marriages from other jurisdictions. For the moment, same-sex couples in New York have a possible path to full relationship recognition in their home state, an exciting development. At the same time, New York is left with a bizarre patchwork of recognition and rejection of same-sex unions. While two New York residents of the same sex cannot get married in New York, they may travel to Canada, Belgium, Spain, South Africa, or the Netherlands, where same-sex couples can marry, get married, and, when they come back to New York, the state will fully recognized their marriage from the foreign country. What a strange state of affairs: to have your relationship recognized at home, you have to first travel abroad!
New York is not alone in dealing with same-sex relationships in an odd way. A legally-recognized same-sex couple in one state will get no recognition in other states. Even states that recognize one type of same-sex relationship may not recognize other types. California, for example, allows same-sex couples to become domestic partners, a legal status which entitles them to almost all the rights of marriage, but they are not allowed to get married. The future of this two-track path to relationship recognition in California -- marriage for different-sex couples and domestic partnerships for same-sex couples -- is currently before the California Supreme Court and a decision is expected by early June. If, as some are predicting, the California Supreme Court decides that the California Constitution requires allowing same-sex couples to marry, then this will get rid of some -- but not all -- of the confusion around same-sex unions in California. Even if same-sex couples can get married in California, the United States government will still not recognize their legal union. For example, two people of the same sex who are married (or in a civil union or domestic partnership) may file state taxes jointly but must file federal taxes separately as single people, because the federal government does not recognize same-sex relationships.
The situation in Michigan is also rather odd in light of a recent court decision on May 7, one day after the Martinez decision in New York. Until May 7, various state employers in Michigan, such as state universities, offered domestic partner benefits such as health care coverage for employees in same-sex relationships. In November 2004, Michigan voters passed a state constitutional amendment that defined marriage as the union of one man and one woman and also stated that such unions "shall be the only agreement recognized as a marriage or similar union for any purpose." The Michigan Supreme Court ruled, that in light of this amendment, state employers can no longer provide domestic partner benefits because doing so involves impermissibly recognizing a union other than marriage. Employees of the state of Michigan who had been receiving important benefits for their same-sex partners no longer get such benefits. In effect, the Michigan court dissolved a whole class of relationships in an instant.
Back in New York, if the Martinez case stands, as I suspect it will, the situation for same-sex couples in New York will be even stranger than in Michigan or California. A New York same-sex couple cannot get married (or obtain a civil union) in their home state. They may obtain a civil union by traveling to Vermont (or perhaps one of the other states that provide non-marital recognition for same-sex relationships), but New York does not reliably recognize these unions because they are not marriages. Further, such New Yorkers cannot get married in Massachusetts -- the one state in the U.S. that allows same-sex couples to marry -- since that state has a law dating from 1913 that prevents couples from other states from marrying in Massachusetts if they cannot get married in their home state. If, however, a New York same-sex couple gets married in a foreign country, New York will recognize their relationship. How did things get this way?
The story begins with two women, Patricia Martinez and Lisa Ann Golden, who live in New York. In 2004, Lisa and Patricia crossed the border and got married in Canada. Thereafter, Patricia asked her employer, Monroe Community College (MCC) for health care coverage for Lisa. MCC typically offers health coverage to the spouses of its employees, but it refused to cover Lisa claiming that her Canadian marriage was not entitled to recognition in New York. Patricia took MCC and Monroe County to court arguing for the recognition of her Canadian marriage. One of MCC's main arguments against recognition was the 2006 decision in Robles v. Hernandez. In Hernandez, the Court of Appeals, New York's highest court, held that New York's marriage law and state constitution do not require that the state allow same-sex couples to be married. According to the (slim) majority in Hernandez, New York could allow same-sex couples to marry, but it is up to the legislature to do that; absent specific legislative action, same-sex couples cannot marry in New York. Since New York does not allow same-sex couples to marry, MCC argued, New York does not have to recognize out-of-state same-sex marriages.
While MCC won at trial, Patricia won on appeal. In a unanimous decision, the appellate court said, in effect, that the principle of "comity" required that New York recognize valid same-sex marriages from other jurisdictions. Comity is a long-standing legal principle that says one state ought to give effect to the laws and judicial decisions of other states and countries. So, for example, if a man and a woman who live in New York decide to have their wedding in Jamaica, New York will give comity to the Jamaican marriage, namely recognize and respect the Jamaican marriage as if it were a New York marriage. Comity, however, only goes so far. If another jurisdiction does something outrageous or in conflict with the law of New York, then New York does not have to give comity to that law or decision. The Martinez court held that since New York, unlike many other states, had not passed a law denying recognition to same-sex marriages from other states, comity applies. Following this reasoning, the Martinez court said that New York shall recognize valid same-sex marriages from other jurisdictions and that MCC must give Lisa health care coverage.
Unhappy with the result, Monroe County appealed the decision to the Court of Appeals, New York's highest court. On May 6, the Court of Appeals rejected this appeal on a technical legal point, in effect saying that this was the wrong time for an appeal, and thereby leaving the appellate court's decision in tact. As Martinez is the only appellate court decision on this issue in the state, unless and until the Court of Appeals weighs in or another state appellate court disagrees, this decision sets the law for the state.
Monroe County and/or MCC will probably try again later to appeal the appellate court's decision. But, since there is strong precedent in New York supporting the principle of comity, I expect this case will remain good law. The bizarre situation of New York not allowing same-sex couples to marry in New York, while recognizing same-sex marriages from elsewhere will probably remain in place until the New York legislature finally decides to recognize same-sex relationships or the Court of Appeals, in a new case, overturns Hernandez.
Whatever happens in New York over the next few years and in California over the next few weeks, the patchwork of recognition and rejection of same-sex relationship throughout the country will continue for a while. This is a strange state of affairs, but for a while at least, we have to get used to this complicated legal landscape for same-sex couples.