An Update For Employers on Domestic Partnership and Same-Sex Marriage Laws

Littler Mendelson ASAP, by Littler shareholder Nancy L. Ober:

Despite a November voter referendum in Maine that overturned the state's same-sex marriage law and a very recent rejection of same-sex marriage by the New York State Senate, the year 2009 saw progress for the legal recognition of same-sex marriage and domestic partnerships. The following is a summary of recent developments in this fast-evolving area of the law.

NY Court of Appeals recognizes out-of-state, same-sex marriages for purpose of public employee health insurance and county government benefits

11/19/09 NY Times:

ALBANY — The state’s highest court on Thursday upheld policies giving some government benefits to same-sex couples who are legally married outside the state, but did not rule on whether gay marriage should be legal in New York, leaving that issue for the Legislature to decide. Though the majority in the 4-to-3 decision focused its decision on the narrow question of benefits, the three judges in the minority went further and said the court should have upheld the policies because same-sex marriages legally performed in other states deserved to be recognized in New York.

11/20/09 New York Law Journal:

ALBANY - The state Court of Appeals yesterday affirmed on narrow grounds the recognition of same-sex marriages by a county executive and a state agency, but by a bare 4-3 margin declined to extend full recognition to all such marriages contracted in other states and countries where they are legal.

11/20/09 New York Public Personnel Law Blog:

Plaintiffs in this action are taxpayers challenging directives recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. The Court of Appeals held that that plaintiffs' actions were properly dismissed by the courts below.

11/19/09 Lambda Legal press release/ Marriage Equality New York:

In a decision today, the New York Court of Appeals ruled that the State Department of Civil Service and Westchester County could extend government benefits to same-sex couples in out-of-state marriages. The ruling comes in cases in which Lambda Legal intervened on behalf of two married same-sex couples after the Alliance Defense Fund, an antigay legal group, tried to do away with longstanding New York law recognizing out-of-state marriages.

11/19/09 Leonard Link, by law professor Arthur Leonard:

The New York Court of Appeals, the state’s highest court, has unanimously rejected two attempts by the Alliance Defense Fund, an anti-gay litigation group, to obtain invalidation of actions by government officials authorizing recognition of out-of-state same sex marriages. Godfrey v. Spano; Lewis v. N.Y.S. Dep’t of Civil Service, Nos. 147 & 148. The November 19 ruling actually divided the court 4-3, although all of the judges agreed on the result to reject the challenges.

New York Court of Appeals Judge Susan Read tells ADF attorney Brian Raum that New York extends broad recognition to out-of-state marriages

10/13/09 AP:

Today the New York Court of Appeals heard oral arguments in two cases about whether the state can recognize out-of-state, same-sex marriages. Alliance Defense Fund attorney Brian Raum tried to argue that the state should not recognize such marriages, just as the state has exceptions for incestuous and polygamous marriages. But Raum conceded in questioning that the state Assembly has already passed marriage-equality legislation, and that state law protects gays and lesbians from some forms of discrimination. Moreover,

"[b]road recognition of out-of-state marriages is the law here," Judge Susan
Read said during Tuesday's hearing. "It's been the law for a long time."

10/14/09 NY Times:

According to the Times' account of the oral argument, the judges are wrestling with whether to issue a narrow ruling that applies just to the two cases at issue, or a broader ruling that "could force (!) businesses and local governments in the state to recognize out-of-state marriages between same-sex couples."

10/15/09 Leonard Link, by law professor Arthur Leonard / ADF Alliance Alert:

The New York Court of Appeals heard oral arguments on Tuesday, October 13, in two cases that might provide a vehicle for the court to weigh in on the question whether same-sex couples who marry elsewhere are entitled to have their marriages recognized in New York. But judging by the questioning from the bench, it appeared that many members of the court were looking for a way to give a narrow ruling that would not necessarily settle that question, pressingly aware that the State Senate might obviate their need to make a controversial ruling by voting for the marriage equality bill before the end of the year.

Advocates to Argue for N.Y. State Recognition of Legal Same-Sex Marriages

New York State Court of Appeals Background Summaries for the Week of October 13-15, 2009:

You will find summaries of two cases concerning out-of-state recognition of same-sex marriages.

10/13/09 NY Times City Room Blog:

The two cases are narrower in scope than — but touch upon — a broader effort to have the state government recognize gay marriages.

10/09/09 New York Law Journal:

New York's highest court, which three years ago ruled that same-sex couples do not have a constitutional right to marry in the state, will get an opportunity to approach the issue from a different angle next week: Whether state and local governments can recognize same-sex marriages solemnized in jurisdictions where such unions are legal.

10/12/09 Alliance Defense Fund press release:

ALBANY, N.Y. — Alliance Defense Fund Senior Counsel Brian Raum will be available for media interviews Tuesday following his arguments before New York’s highest court in Lewis v. New York State Department of Civil Service and Godfrey v. Spano. ADF attorneys appealed both lawsuits, arguing that state and local officials have attempted to recognize out-of-state same-sex “marriages,” contrary to state law.

To learn more about the cases and ADF's role in them, see this post.

New York's Highest Court to Rule on Recognition of Same-Sex Marriages Contracted Outside the State

04/01/09 Leonard Link:

New York Law School Professor Arthur Leonard writes:

"The New York Court of Appeals will finally weigh in on the question of legal recognition by New York of same-sex marriages contracted elsewhere. On March 31, 2009, the court granted leave to appeal in decisions from the Appellate Division, 2nd and 3rd Departments, that had rejected challenges backed by the Alliance Defense Fund to the actions of government officials recognizing such marriages. The cases will be argued in the fall."

See also this post on the role of ADF in the New York litigation, and this ADF press release.

ADF attorneys seek appeal in NY same-sex marriage recognition suits

02/12/09 ADF press release: “New York state and local officials should not recognize the laws of foreign jurisdictions when they conflict with state law,” said Alliance Defense Fund Senior Legal Counsel Brian Raum. “These officials have overstepped their authority in order to forward the agenda of special interest groups.” See also this post on the role of ADF in the New York litigation.

Conservative Christian Group Targets New York

02/03/09 New York Law Journal:

" New York courts are a relatively new battleground for the Alliance Defense Fund's national campaign against same-sex marriage.

"The group represented one of the petitioners in the case in which California's Supreme Court legalized same-sex marriage and it defended the subsequent ballot Proposition 8, in which voters invalidated same-sex marriage, against legal challenges.

"The group also has been involved in same-sex marriage litigation in Rhode Island, Oklahoma and other states."

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