freedom to marry has long been recognized as one of the vital personal rights
essential to the orderly pursuit of happiness by free men."
Adovcacy News - NY recognition of Canadian gay marriages
March 4, 2004
recognition of Canadian gay marriages
in New York, one of the most incredible steps occurred," said David Buckel, marriage
project director for Lambda Legal. "New York State became the first state in the
nation to clarify that same-sex marriages performed out of state will be respected
"Whether the Domestic Relations Law (DRL) permits same-sex marriages performed in New York has no bearing on whether New York will recognize as spouses those parties to a same-sex marriage (or its legal equivalent) validly performed under the law of other jurisdictions," says an opinion signed by solicitor general Caitlin Halligan and released yesterday by New York's Attorney General Eliot Spitzer.
New York common law, the AG says, requires recognizing as valid a marriage that was legally performed elsewhere "regardless of whether the union at issue would be permitted under New York's Domestic Relations Law. The only exceptions to this rule occur where recognition has been expressly prohibited by statute, or the union is abhorrent to New York's public policy."
The AG describes such exceptions as being "narrow" and that New York courts would only deem marriages involving polygamy or incest to be abhorrent.
This view was confirmed by the New York State Supreme Court in a 2003 case, Langan v. St. Vincent's Hospital. In that case, currently on appeal, the court said that a party in a Vermont civil union must be treated as a spouse for the purposes of New York's wrongful death statute.
"Consistent with the holding of the only state court to have ruled on this question, New York law presumptively requires that parties to [same-sex] unions must be treated as spouses for purposes of New York law," the opinion says.
The opinion has given a considerable boost to gay residents of New York who have traveled to Canada for marriage. They now have their state's highest legal authority on their side, stating that a precedent already exists for the recognition of their Canadian marriages at home in New York.
Most recently, the New York-based Civil Marriage Trail group traveled to Toronto for Valentine's Day marriages, vowing to return to the U.S. to work for recognition of their marriages.
The AG's view that New York should recognize out-of-state marriages of same-sex couples has been overlooked by much of Canadian media. Most news services simply reported on the first portion of the AG's opinion: same-sex marriages could not be legally performed in New York due to opposite-sex terms and references in the language of the Domestic Relations Law.
The AG expressed personal support for equal marriage (New York Times, March 4, 2004) and said that the courts were the best place to change the language of the law to be gender neutral.
"We believe that while the DRL does not authorize same-sex marriage, this interpretation raises constitutional concerns," the opinion paper says. "New York law has recognized the legitimacy of committed same-sex relationships in numerous ways, thereby drawing into question the State's interest in maintaining the historical understanding of marriage as confined to opposite-sex partners."