New York Governor David Paterson yesterday ordered state agencies to recognize same-sex marriages solemnized in other jurisdictions, such as in California. The governer’s decision was based on New York’s long standing “marriage recognition rule.” What is the “marriage recognition rule”? For over one hundred years, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exceptions:
1) marriage, the recognition of which is prohibited by the “positive law” of New York and 2) marriages involving incest or polygamy, both of which fall within the prohibitions of “natural law”. (See Martinez v. County of Monroe, et. al., Appellate Division, Fourth Department, Slip Decision 1562 CA 06-02591).
Put another way, if a marriage is valid in the place where it was entered, “it is to be recognized as such in [New York] courts, unless contrary to the prohibitions of natural law or the express prohibitions of a statute.” See Moore v. Hegeman, 92 NY 521, 524.
Under the “marriage recognition rule” and the law set forth under the Appellate Division (New York’s intermediate appellate court), Governor Paterson issued the administrative order to recognize same-sex marriages solemnized in other jurisdictions. By doing so, Governor Paterson in effect made the determination that a) gay marriages in other states were not contrary to “natural law” and b) gay marriages were not “expressly” prohibited by New York statute.
New York State Senate Majority Leader, Joseph Bruno, plans to challenge the Governor’s decision on the grounds that Governor Paterson violated the state constitution’s separation of power’s clause. It’s an interesting planned move by Joe Bruno.
Joseph Bruno is referring to is a set of New York Court of Appeals decisions, Hernandez v. Robles, Samuels v. New York State Department of Health, In Re Elissa Kane v. Marsolais, Seymour v. Holcomb. The main question in these sets of cases was whether New York’s Domestic Relations law — long interpreted to allow only opposite-sex couples to marry — violated the state’s constitutional guarantees of equal protection and due process. In a 4-2 decision, New York Court of Appeals (New York’s highest court) determined that its constitution did not require the state to issue marriage licenses to same-sex couples. The plurality decision determined that same-sex marriage was not a “fundamental right” requiring strict scrutiny, but rather the more relaxed rational basis test. Using the rational basis or rational relation test, it was not surprising that the plurality court did not strike down the Domestic Relations law (courts rarely strike down a law if no fundamental right is involved).
Although the New York decision was not a favorable one to the movement for same-sex marriages, the decision was not as sweeping as State Senator Joseph Bruno or others want it to be. After all, the decision dealt with the narrow issue of whether the NY constitution mandated the state to issue marriage licenses to same-sex couples. The New York decision did not deal with the more general concept of whether same-sex marriages violated natural law, statutory law, or any other legal concept, such as due process or equal protection.
To be sure, one may argue that the New York decision expressly upheld the Domestic Relations law as one solemnizing a marriage only between a man and a woman. Therefore, one may argue, the decision held — by logical extension — that a marriage between the same sex violates that law.
The court, however, never expressly stated as such. The reasoning it used to support its ruling — that the constitution does not mandate the state to issue marriage licenses to same-sex couples — was primarily dicta. Dicta is only instructive, not binding, on other courts. Thus, the argument that the “logical extension” of the decision was to preclude marriage between the same sex, is not supported by the language of the court ruling itself.
Sure, it is a hyper-technical argument, but most legal arguments are hyper-technical by their very nature. Of course, it will be for a court to determine expressly whether Governor Paterson’s administrative decision violates the Domestic Relations Law.
Until that time, New York will recognize same-sex marriages solemnized in other states. Governor Paterson’s move was a shrewd one and shows without a shadow of a doubt that he learned a thing or two in over his twenty years in Albany.
solemnized outside of New York unless they fall into two categories of