Thursday, March 22, 2007

Same-sex honeymoon in Niagara Falls?

Andrew Koppelman

An ill-strategized lawsuit by the religious right has produced a decision that could pave the way to legal recognition of same-sex marriage throughout New York.

Judge Joan B. Lefkowitz rejected a legal challenge against an order by Westchester County Executive Andrew J. Spano. Last June, Spano ordered county agencies that they extend recognition to same-sex marriages lawfully contracted in other jurisdictions, such as Canada (where such marriages are recognized). This didn’t have much impact on anything, since most of the benefits of marriage are not granted at the county level. Westchester can give married couples discounts to county parks, but not much more. But the stakes were raised when the Alliance Defense Fund, a conservative group that litigates energetically against pro-gay policies, sued under a statute that lets taxpayers intervene in court to stop officials from committing illegal acts or misappropriating government acts.

In dismissing the claim, Lefkowitz had to decide whether Spano was properly following New York law. And in concluding that he acted properly, she created a precedent which, if it is followed on appeal, will affect a lot more than park discounts.

“It is well settled in New York that the courts as a matter of comity will recognize out-of-state marriages, including common law marriages, unless barred by positive law (statute) or natural law (incest, polygamy) or otherwise offensive to public policy,” wrote Lefkowitz. (Her opinion is available on Westlaw at 2007 WL 749692.) “New York has recognized out-of-state marriages, valid where contracted, though the purpose was to evade New York laws proscribing such marriage.” For example, she described a 1929 decision, Fisher v. Fisher, in which “a spouse who was guilty of adultery and under then extant New York statutory law barred from remarrying during the lifetime of the innocent spouse, remarried on the high seas while the innocent spouse was still alive. The Court of Appeals recognized the marriage as valid because no law condemned (italics in original Court of Appeals opinion) such marriage performed out-of-state.” And in two reported decisions, New York courts “recognized Canadian marriages that would be invalid in New York.” While 44 states have laws on the books refusing to recognize same-sex marriages from other states, New York is one of the few that has no such law. (More details on Lefkowitz’s opinion are available here.)

There is authority that runs against Lefkowitz, specifically two other New York State trial court decisions that held (albeit with far less careful analysis) that New York would not recognize out-of-state same-sex marriages. Both of those cases are now on appeal, and Lefkowitz’s decision will certainly be appealed as well.

Hernandez’s decision is well-reasoned, and it ought to be upheld on appeal. In 2005, the New York Court of Appeals rejected a constitutional claim in favor of same-sex marriage by the narrowest of margins in Hernandez v. Robles. The limits of judicial competence loomed large in the judicial mind: the lower court’s decision recognizing such a constitutional right, the Court of Appeals held, “exceeded the court's constitutional mandate and usurped that of the Legislature.” Hernandez was decided by the narrowest of margins. Change one vote and the Court swings the other way.

Lefkowitz’s decision has some appeal for that swing voter. There’s nothing activist about it; it’s just an application of well-settled choice of law principles. (I describe the relevant principles in greater detail in my book, Same Sex, Different States: When Same-Sex Marriages Cross State Lines.) It would be activist to go in the other direction, ignoring well-settled legal principles because they produce a politically unwelcome result. Lefkowitz’s approach doesn’t usurp the legislature’s function. On the contrary, it just applies well-settled New York precedent, and it can be reversed by the legislature by the simple expedient of passing a statute.

The reality, owing to the vagaries of New York politics, is that a decision in favor of same-sex marriage is unlikely to be overturned by legislation. Governor Eliot Spitzer, who has a veto, is on record as favoring same-sex marriage. And it’s unlikely that the state legislature, a notoriously dysfunctional graveyard of legislation, would ever pass a law anyway.

The result would be that, although New York same-sex couples could not marry within the state, they would be able to make the relatively short trip north to Niagara Falls, get married there, and come right home again. New York would effectively join Massachusetts, which recognizes same-sex marriages for all purposes, and Vermont, Connecticut, California, and New Jersey, which recognize it in all but name (they call it “civil union” or “domestic partnership”), so that more than a quarter of the population of the United States would live in a jurisdiction that gives same-sex couples all the same rights as married heterosexuals. And all because of the intervention of the militantly antigay Alliance Defense Fund. Who says that left and right can’t work together?


Would that this were so. Unfortunately, residents of the states listed also fall under the jurisdiction of the federal government. April 15th is fast approaching...

"more than a quarter of the population of the United States would live in a jurisdiction that gives same-sex couples all the same rights as married heterosexuals"

Does NY have an initiative process where the voters could address this issue with a statute or constitutional amendment?

I rather doubt that New York jurisprudence will tolerate the regime that Professor Koppelman suggests with that incredible dissonance, especially when New York has the seriously mistaken Hernandez decision on the books.

Some discussion of Hernandez is in order. (I will provide a link to our Court of Appeals' opinions here, as only the intermediate appellate court's judgment seems to have been linked to: In New York's Court of Appeals, the vote was 4-2, one judge recused, and not 4-3 as the entry rather suggests.

Hernandez is undisputedly that most political of decisions. Judge Robert Smith's majority opinion held that since the 1909 New York legislature used the words 'bride' and 'groom' and that it could not possibly have intended to recognize same-sex marriage, that settled the interpretative question. But one wryly notes that if you read the US Constitution that way, then a woman can't be President, as there's little hope that the political climate in 1790 favored a female President, and the US Constitution speaks in male-gendered language. What if Robert Smith's adjudication of the issues held sway instead of Earl Warren's in Brown v. Board of Education? The Reconstruction Congresses funded segregated schools, so by Smith's logic, that means Brown was wrongly decided, no? (That same 'logic' seems to have allowed Robert Bork just enough to rope to hang himself at his confirmation hearings when his beloved interpretive method led to the wrong result in Brown, which he had to artificially correct; no one who thought much about was fooled, though). Smith also determined that the distinction -- the discrimination, I would say -- between same-sex and different-sex marriages had a "rational" basis. That's most unusual, no? the jargon of constitutional law, I find it irrational that we should have courts, especially "modest" ones like our highest in this state, decide how rational the legislature's acts are. I have searched my copies of the New York and US constitutions in vain for that provision, as so-called conservatives are prone to saying about privacy rights. My state's and the US's Constitutions speak of "equal protection of the laws", not "rationality" of the laws.

Given the fact that Koppelman raised -- that New York doesn't proscribe same-sex marriages -- Hernandez need not have been a constitutional case at all. A bride and a groom could just as well be a woman and another woman as a man and a woman; it's a legitimate extension of the word, especially given my example earlier of the female President. We extend all of the time; double jeopardy applies to being put in danger of losing life or limb, not to prison sentences, but that argument is a canard. There are limits to extension, of course, as a native speaker of our language in this culture would know, e.g., ducks can't get married in the legal sense. But is it beyond the pale that bride and groom can't both be of the same sex? It happens everyday, around the world, doesn't it?

My second general point has to do with the moral hazards of being technocratically proceduralist and choosing to rest judicial judgment on ostensibly "neutral principles". During the antebellum era, we'd judges who followed the route of "technical evasion (which exalts procedural detail over substance)". (Grant Gilmore, describing Lemuel Shaw and Joseph Story). Justice Accused, indeed. Koppelman's evasion of the substance gets one only so far, I feel; choice-of-law rules being pedigreed is all well and good, but is ultimately a distraction from the issues. We should, on his view, follow the technical procedural rules where they lead us. But then why do we even need those rules? If we just need rules, why not simply flip a coin? 'Heads I win and if tails then your win' has a long history as well of being an efficient rule. But we don't use it to settle our moral disputes; choice-of-law rules are a surrogate for flipping a coin, I think, just fancier. (Maybe we could roll dice, or spin a wheel). Koppelman's argument that the South survived Jim Crow era antimiscegenation laws through choice-of-law rules whether right or not seems entirely beside the point. The aptly named Loving v. Virginia decision rightly struck down the laws; the procedural 'compromises' were nonsense.

If anything, there is a dark sign that the dissonant regime created by choice-of-law rules can't pass muster much as law, which should be authoritative or at least seen as such. In the days when some states treated some people as property and other states not, the question was ultimately resolved in favor of property; it was too jarring to have property in state A but not in state B. We call that nowadays the Dred Scott case. So I'm not at all persuaded that choice-of-law rules allowing some same-sex marriage but not categorically would work any much in practice.

My third line of commenting is mercifully briefer, as I see an important difference between "recogniz[ing same sex marriages] in all but name" in terms of civil unions being not quite in all but name. There's a dignitary aspect to marriage, otherwise I don't quite see why the label should matter. (Shades of 'separate but equal').

The Judge ordered recognition of "same-sex marriages" and also said that --

“courts [...] will recognize out-of-state marriages, including common law marriages, unless barred by [...] natural law [...]" wrote Lefkowitz.

The Judge has got to be kidding or is need of some schooling on the natural law.

Although not much at all, certainly polygamy and incest/consanguinity have far more support under "natural law" than does same-sex marriage.

On the other hand, incest laws vary widely by state. Surely New York would recognize the marriage of two first cousins (married in say, arkansas, for example) even if such a union were illegal within the state of NY itself (I don't know if it is or isn't, that's not my point).

Surely this reference to "natural law" was some kind of sick joke, and not evidence of complete ignorance on the part of Lefkowitz.


New York does not have the initiative. Maine and Massachusetts are the only East Coast states to adopt this western practice. Link to map here


Thanks for the info...

Shame. NY looks like it could use a splash of initiative reality from its citizenry on this issue.

@Bart: Don't bee too keen. The citizens of NY might still surprise you...

Marty, the sterotype is invalid in this case. Arkansas prohibits first-cousin marriage, while New York allows it (in fact, I knew someone who moved to New York for that reason).

KCinDC, thanks for the correction (I had admitted my ignorance of state laws), but lets test whether or not my "On the other hand" comment is valid:

If yoru friend who moved to NY so he could marry his first-cousin then moved his family back to Arkansas, would his marriage be recognized or not?

I'm assuming it would.

Which, whether you agree with that or not, still goes back to my original point that even incest has more "natural law" support than this innovation we call same-sex marriage.

its a good article guys


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