Legislative Memo: Anti-Marriage Fairness Bill (2008)

New York State has a longstanding tradition of protecting the rights, freedoms and dignity of all of its residents and their families.

The proposed legislation, which seeks to render void marriages “contracted by two people of the same sex, regardless of whether such marriage or union is recognized or solemnized by another jurisdiction,” is not only a rejection of New York State legal tradition, but it is also a retreat from a century old common law rule that calls on our state to respect a marriage performed elsewhere, even if that marriage could not be performed in this state.

To single out marriages between lesbian and gay couples and deny their access to critical protections long afforded to other families would amount to discrimination and introduce injustice and unfairness into our state law. The proposed legislation stands in stark contrast to New York’s history and current practice of protecting the welfare of its families, and the NYCLU strongly opposes A.4978/S.2800.

The proposed legislation aside, New York State’s reputation for being a civil rights leader is well-deserved. Unlike many other states, New York never had an anti-miscegenation law on the books, this state was among the first to protect its residents from racial and other forms of discrimination by enacting a Civil Rights Law as early as 1895, and was one of the first states to decriminalize sodomy, doing so more than two decades before the United States Supreme Court followed suit.

Indeed, this state’s recognition of same-sex couples’ marriages is in keeping with New York’s status as a leader in protecting human rights and the dignity of all of its families.

The so-called “marriage-recognition rule” means that our laws respect marriages entered into lawfully outside New York, and must thereby afford the protections of New York law to those individuals legally married elsewhere.

The rule has been applied to valid marriages of lesbian and gay couples by a number of courts, including the Appellate Division, Fourth Department in Martinez v. County of Monroe, a case brought by the NYCLU and cooperating attorney Jeffrey Wicks.

The Martinez case provides an example of why the recognition of a marriage is so important. In that case, the recognition of a lesbian couple’s marriage allowed a county employee’s spouse to receive health care coverage—a fundamental protection that virtually no one can afford to take for granted in these times.

In the Martinez case and others, the Attorney General has vigorously defended the marriage-recognition rule’s application to the marriages of same-sex couples, but this recognition has not been limited to New York’s legal system. The State Comptroller’s office and the Department of Civil Service have both adopted policies recognizing the marriages of same-sex couples resulting in fair access to retirement and health care benefits.

Furthermore, numerous municipalities have enacted policies, dating as far back as 2004, that recognize valid marriages of lesbian and gay couples. Most recently, Governor Paterson’s counsel articulated the marriage-recognition rule in a directive to state agencies, in which he asked them to ensure that their policies and procedures provide recognition to all married couples.

As a result of these pro-recognition initiatives and leadership from the Governor and Attorney General, more and more New Yorkers have gained much-needed protections for their families.

Sadly, the proposed legislation is antithetical to the welfare of lesbian and gay couples and their children. It seeks to destroy the fundamental family protections they are entitled to; it diminishes New York’s status as a leader in protecting human rights and the dignity of families.

For the foregoing reasons, the NYCLU strongly opposes A.4978/S.2800.