The Court of Appeals's decision in Godfrey v. Spano: a troubling exercise of indecision.

• Author: Kaplan, Roberta
• Position: New York

The institution of marriage reaches into nearly every aspect of everyday life and, as a result, is of tremendous social, economic and legal importance. In addition to its role at the center of the way we structure our families, marriage also brings with it a great number of legal protections that reflect a married couple's public commitment to building a life together. These protections are memorialized in laws about property, taxes, medical decisionmaking, childrearing, and even death and dying.

In New York, there are over one thousand legal rights and responsibilities affected by one's marital status, including those most significantly that affect couples in a moment of crisis. (1) Although there have been efforts by the governor, the legislature, and various local governments to extend certain of those rights to same-sex couples in committed relationships, there remain many hundreds of rights that are still being denied. (2) Unfortunately, following the Court of Appeals' 2006 decision in Hernandez v. Robles (3) which held that the New York State Constitution does not guarantee a right to civil marriage for same-sex couples as a matter of either due process or equal protection, (4) and the recent defeat in the New York State Senate of a bill that would have legalized same-sex marriage, (5) full civil marriage is still far from a reality for the many same-sex couples living in New York.

Of course, neighboring countries and states, like Massachusetts and Connecticut, have extended civil marriage to same-sex couples. Today, seven countries, five states, and the District of Columbia permit same-sex couples to enter into a valid civil marriage. (6) Under well-settled principles of comity, and New York's longstanding common law "marriage recognition rule," same-sex couples married in those jurisdictions should be entitled to the absolute recognition of their marriages in New York. Indeed, this conclusion has been reached by nearly every lower court in New York that has considered the issue, as well as by New York's governor and the past two attorneys general.

Recently, in Godfrey v. Spano, (7) and its companion case, Lewis v. Department of Civil Service, (8) the issue of marriage recognition for same-sex couples was presented to the Court of Appeals. The case provided the opportunity for the Court to extricate same-sex couples in New York married in other states from the "legal limbo" in which they have been living by clarifying that valid out-of-state marriages of same-sex couples are recognized under New York law. (9) Disappointingly, rather than addressing the question head-on, the Court of Appeals "ducked" the issue, calling for the legislature to resolve the question instead of the courts. (10) But the Court's ruling (or lack of ruling) flatly contradicted the centuries-old common law rule that has been held to apply precisely in the situation present here--namely, when the legislature has been silent on the question of whether a particular type of marriage (here, a marriage between a same-sex couple) that cannot be performed in New York should nevertheless be recognized as valid in New York. (11)

This article discusses the effect of the Court of Appeals' decision and argues that the Court unnecessarily left ambiguity in the law regarding the recognition of marriages between same-sex couples where common law principles of comity compel recognition. Part I describes the long standing marriage recognition rule and its application to marriages of same-sex couples. Part II describes the factual and legal history of the Lewis and Godfrey cases. Part III discusses the Court of Appeals's decision and its effect on married same-sex couples. Although the majority decision in Lewis and Godfrey does not resolve definitively the issue of marriage recognition, this article concludes that it provides no basis for New York courts to depart from their consistent holdings, including the holdings of the Third and Fourth Departments--namely that the marriage recognition rule compels recognition of out-of-state marriages between same-sex couples.

1. THE MARRIAGE RECOGNITION RULE

   Going all the way back well into the nineteenth century, the black letter principle that New York "recognizes as valid a marriage considered valid in the place where celebrated" has been "so well settled ... as to become a maxim in the law." (12) This "marriage recognition rule," as it came to be known, was developed under the common law to determine the legal effect in New York of a marriage that is validly performed outside of the state, but that could not be validly performed under the laws of New York. The common law rule provides that a marriage validly entered into outside of New York will be recognized unless it is subject to one of two rarely applied exceptions: (1) recognition of the out-of-state marriage is expressly prohibited by a New York statute; or (2) the marriage is otherwise "offensive," "abhorrent," or "obnoxious" to New York public policy. (13) Applying this rule, New York courts have recognized the following types of marriages then or now not permitted in New York: marriages of divorced adulterers and new spouses, (14) incestuous relationships, (15) common law marriages, (16) proxy marriages, (17) and marriages where the wife was as young as fifteen. (18)

   Over the past decade, since marriage between same-sex couples has become possible in other countries and states, the issue of New York's recognition of valid out-of-state marriages of same-sex couples has come to the fore. Pursuant to the well-settled marriage recognition rule, there can be little doubt that out-of-state marriages of same-sex couples do not fall under either of the two established exceptions to the marriage recognition rule: there is no statute prohibiting the recognition in New York of marriages of same-sex couples and such marriages are certainly not "offensive" or "abhorrent" to New York's public policy.

   Indeed, when considering this precise issue in 2004, the New York Attorney General opined that "New York law presumptively requires that parties [to marriages between same-sex couples from other jurisdictions] must be treated as spouses for purposes of New York law." (19) And nearly every court in New York to consider the validity of an out-of-state marriage of a same-sex couple under common law principles has recognized such marriages as valid in New York. (20) For example, the issue first reached the appellate level in the case Martinez v. County of Monroe. (21) There, the Fourth Department held that the marriage recognition rule applies to marriages between same-sex couples and dictates the recognition of such marriages. (22) This is hardly surprising given the rule's longevity and establishment as well-settled, in addition to the widespread legal, political, and cultural consensus in New York according rights and respect to same-sex couples and their families. (23)

2. LEWIS AND GODFREY CASES

   On March 31, 2009, the New York Court of Appeals granted leave to appeal in two companion cases that presented the question of the applicability of the marriage recognition rule to same-sex couples. (24)

   1. Lower Court Proceedings

      Lewis involved a 2007 policy memorandum, issued by the President of the New York State Civil Service Commission and Commissioner of the New York State Department of Civil Services, directing that all New York State agencies that participate in the New York State Health Insurance Program must recognize valid out-of-state same-sex marriages for the purpose of providing health insurance and other benefits. Kenneth J. Lewis and other New York State taxpayers represented by the Alliance Defense Fund, an Arizona-based religious advocacy group, challenged the policy memorandum in Supreme Court, Albany County. (25) Plaintiffs alleged that the New York State Department of Civil Service violated State Finance Law section 123-b and separation of powers principles by issuing the policy memorandum, thereby illegally disbursing state funds and usurping the role of the legislature to define the institution of marriage. (26) Peri Rainbow and Tamela Sloan, a lesbian couple who lived in New York and were married in Canada in 2005 intervened and, with defendants, moved to dismiss the complaint.

      The plaintiffs cross-moved for summary judgment. The trial court denied the cross-motion for summary judgment, and granted summary judgment to the defendants in March 2008. (27) The trial court's decision was affirmed by the Appellate Division, Third Department in January 2009. (28) A majority of the appellate division upheld the policy memorandum under the marriage recognition rule and further held that the memorandum was a reasonable interpretation of the word "spouse" under the statutory authority granted to the Department of Civil Services. (29)

      The Godfrey case similarly involved a 2006 executive order by Westchester County Executive Andrew J. Spano which directed that all Westchester County government agencies must recognize valid out-of-state marriages of same-sex couples in the same manner as all other marriages. This order was challenged in Supreme Court, Westchester County by Margaret Godfrey and other residents and taxpayers of Westchester County, who were also represented by the Alliance Defense Fund...