Marriage Q&A for Gay and Lesbian Couples
On February 1, 2008, a New York State intermediate appeals court (the Appellate Division, Fourth Department) ruled that valid marriages between same-sex couples performed outside the state are entitled to recognition here in New York.
The case, Martinez v. County of Monroe, involved a couple – Patricia Martinez and Lisa Ann Golden – who were married in Canada in 2004. Ms. Martinez works at Monroe Community College, and, after getting married, asked her employer to recognize her marriage and give her the spousal health care benefits provided to other married couples. After the county and college refused to recognize Ms. Martinez’s marriage to Ms. Golden, the NYCLU and cooperating attorney Jeffrey Wicks filed a lawsuit against the county and college on Ms. Martinez’s behalf.
The lawsuit asked the county and college to recognize the couple’s valid marriage under the state’s “marriage-recognition rule,” a century-old common law rule (i.e., based on court decisions) that requires New York State to recognize marriages performed outside the state.
The intermediate appeals court, in a 5-0 decision, ruled that Ms. Martinez’s marriage to Ms. Golden must be recognized under the marriage-recognition rule. The court based its ruling on the fact that New York has no law prohibiting the recognition of same-sex marriages and that recognizing such marriages would not violate public policy.
The intermediate appeals court also ruled that by failing to recognize the marriage, the college and county violated state Human Rights Law by discriminating against Ms. Martinez based on her sexual orientation.
In late February, Monroe County asked the state’s highest court (the New York Court of Appeals) to review and overturn the decision from the intermediate appeals court. On May 6, the state’s highest court dismissed the county’s request for an appeal as premature, thereby letting the intermediate appeals court’s decision stand until the remaining issues in the case – like the determination of the damages – have been fully litigated. At that point, the county could renew its appeal, but the highest court would not necessarily have to review the decision.
On May 14, 2008, Governor Paterson’s counsel issued a memo to counsel at state agencies, calling on them to follow the law by ensuring that their staff construe the terms “spouse,” “husband” and “wife” to cover lesbian and gay couples who were married outside the state. This memo is a positive development that acknowledges that it is already New York State’s policy to grant full recognition and respect to valid marriages of lesbian and gay couples.
On June 3, 2008, an out-of-state conservative organization, the Alliance Defense Fund, filed a lawsuit challenging the governor’s memo. This is the Alliance’s fourth attempt to challenge a governmental entity in New York for following the law and granting recognition to valid marriages of lesbian and gay couples. The group’s three previous attempts all failed at the trial court level. It lost last year when it challenged Westchester County for granting spousal benefits to public employees in valid same-sex marriages (Godfrey v. Spano); it lost last year when it challenged the state comptroller’s office for offering retirement benefits to lesbian and gay couples in valid marriages (Godfrey v. DiNapoli); and it lost this year when it challenged the Department of Civil Service for granting spousal health care and insurance benefits to employees in valid same-sex marriages (Lewis v. Department of Civil Service). The NYCLU is confident that this fourth lawsuit will be unsuccessful as well.
Recent Updates on California and Massachusetts:
As discussed below, California recently began allowing same-sex couples to marry in that state, and Massachusetts recently reopened its doors to New York couples seeking to marry there. (Until the recent repeal of a 1913 Massachusetts' law, New York same-sex couples were not able to validly marry there after July 6, 2006.)
As always, the NYCLU will continue updating this page to include the most current information regarding recognition of lesbian and gay couples' valid, out-of-state marriages.
No. Same-sex couples in New York still cannot get married in this state. In 2006, the state’s highest court ruled that it’s up to the legislature to enact a law allowing same-sex couples to get married in New York.
While same-sex couples still can’t get married in New York, if they validly marry outside the state, their marriage should be recognized here. That is the whole point of the Martinez case: the couple didn’t ask to get married in New York, but rather asked to have their valid Canadian marriage recognized here.
To support a bill that would allow all New Yorkers to get married, click here. The State Assembly approved this bill in an 85-to-61 vote and Governor Paterson supports it, but the State Senate must pass the bill before marriage is open to all New Yorkers. Senator Majority Leader Joseph Bruno has refused to let that happen.
I am married to my same-sex spouse. What does this mean for me?
Unfortunately, there is no one-size-fits-all answer; you should keep reading for more specific answers. The kind of protection you are seeking determines if your marriage will be recognized on an equal footing with the marriages of opposite-sex couples.
The NYCLU believes that if you were legally married in Massachusetts, Canada or one of the other countries where marriage is available for same-sex couples (Belgium, the Netherlands, Spain or South Africa), or choose to marry in one of these countries, you should have all the New York-specific rights afforded married couples in this state (see PDF document here). On May 14, 2008, Governor Paterson made all state agencies aware of the Martinez decision and the state’s policy that lesbian and gay couples’ valid, out-of-state marriages must be recognized and respected in this state (See PDF document here). If you encounter a state agency that is not recognizing your marriage, you should remind the agency of Governor Paterson’s memo by giving them a copy of it and the Martinez decision. You may have to teach people about the decision when seeking to have your marriage recognized. You should feel free to give them a copy of the governor’s memo and the Martinez decision and ask if they still have questions.
Also, the NYCLU believes your marriage should be recognized by anyone or any entity covered by the Human Rights Law, which covers the following areas: employment, housing, places of public accommodation (like hotels, restaurants, and health clubs), credit, volunteer firefighting, and educational institutions. In other words, if a health club provides family benefits for spouses, they must provide the same benefits for same-sex couples who were legally married outside of New York. Also, in the employment context, benefits like bereavement leave and educational assistance polices should be extended to same-sex spouses(see PDF document here).
The questions and answers that follow should provide more guidance in answering some more specific questions.
One place where marriage makes a big difference in our society is getting access to employer-sponsored health care for your spouse. Whether you are entitled to spousal health care coverage could greatly depend on whether your employer is a public or private entity. Please read below for more information.
Public Employers
If you work for a state, county or local government employer, under the Martinez decision, your employer will have to recognize your marriage for purposes of spousal health care eligibility.
As articulated in a memo from Governor Paterson’s counsel, all state agencies must recognize your marriage, whether for purposes of health care benefits or any other purpose. Even before the governor’s memo, the New York State Department of Civil Service and the New York State Retirement System both enacted explicit policies stating that they recognize marriages of same-sex couples. And so did many towns, cities and counties, including Albany, Brighton, Buffalo, Ithaca, New York City, Nyack, Rochester, and Westchester County (see PDF document here). This is not an exhaustive list, so you should ask your local legislators and leaders what their policy is and give them a copy of the governor’s memo if they have questions.
Private Employers
If you work for a private employer, you should ask your employer’s human resources department whether your insurance coverage arises from a “self-insured” (also know as “self-funded”) health care plan. Most large, private employers have self-insured/self-funded plans that are regulated by a federal law called the Employee Retirement Income Security Act (ERISA). If your employer’s plan is regulated by ERISA, your employer does not have to grant spousal health care coverage for a same-sex spouse. This is true because ERISA is part of federal law, which does not prohibit sexual orientation discrimination and does not recognize relationships of same-sex couples (see below for more details).
But even if the plan is regulated by ERISA, your employer still could recognize your marriage, so you should ask for health care benefits. If you are denied coverage, you should ask why.
Also, remember that for non-health care benefits, both public and private employers should be extending spousal benefits to same-sex spouses.
If you’re not married, you may wish to get married outside of New York, but you should definitely talk to an attorney first about the possible consequences of getting married. Also, as discussed later, bi-national couples must be particularly careful because marriage can seriously impact one’s immigration status.
All couples should consult an attorney before deciding whether to get married in California, Canada, Massachusetts or anywhere else. If you already have a civil union, domestic partnership or marriage from elsewhere, a Canadian marriage could invalidate your former relationship and create numerous legal problems. Also, while one state trial court has relied on the Martinez decision to rule that same-sex couples married in Canada can get divorced in New York, this decision is so recent that it has not yet been reviewed by an appellate court or followed by other state trial courts. In addition, both Canada and Massachusetts have one-year residency requirements and California a six-month residency requirement for divorce. These are just some of the reasons to consult an attorney before entering into a marriage anywhere.
Currently, the places where same-sex couples can get married include Belgium, California, Canada, Massachusetts (for New Yorkers, after July 31, 2008 and between May 17, 2004 and July 6, 2006, as noted below), the Netherlands, South Africa, and Spain. Many of these places have residency requirements that must be satisfied (by at least one member of the couple) before they will issue marriage licenses.
We hope New York will join this list soon. Click here to support that effort.
RECENT UPDATE: Can we get married in Massachusetts?
Yes. On July 31, 2008, Massachusetts Governor Deval Patrick signed into law the state legislature’s repeal of a 1913 law that had stopped couples from New York and elsewhere from marrying in Massachusetts. Governor Patrick’s repeal of the law went into effect immediately, meaning that couples from New York and elsewhere can now marry in Massachusetts.
Before July 31, 2008, New York couples only were able to marry in Massachusetts up until July 6, 2006. The reason why New York couples could not marry after July 6, 2006 was because of the 1913 law (see PDF document explaining it here). However, with the repeal of the 1913 law, New York couples can now go to marry in Massachusetts.
RECENT UPDATE: Can we get married in California?
On May 15, 2008, the California Supreme Court overturned the state’s ban on lesbian and gay couples’ ability to marry in that state. On June 4, 2008, the California Supreme Court announced that its May 15 decision will become final at 5 p.m. on June 16, allowing lesbian and gay couples to marry in California as soon as that date and time. Take a look at this California Marriage FAQ page from the ACLU and other organizations for more information about the decision and its effects. Also, continue checking this page and the ACLU LGBT & AIDS Project’s page for updates on the freedom to marry in California.
Does the federal government recognize my marriage?
No. The federal government does not recognize marriages of same-sex couples due to the Defense of Marriage Act (also called “DOMA”), a law providing that the federal government will not recognize a same-sex relationship as a marriage.
As a result of DOMA, in areas that are determined by the federal government, such as Social Security benefits, immigration, and federal taxes, recognition will not be extended to same-sex spouses.
If you have a valid marriage, you may say that you’re married (after all, you are) on applications for jobs, credit, mortgages, insurance and medical treatment, etc. However, if you’re saying you’re married in order to get a federal benefit, you should probably make it clear that your spouse is someone of the same sex and that you have been legally married outside of New York. If you don’t, you could be accused of acting improperly, and there could be negative consequences. This is especially true on forms from the federal government, such as tax forms, Immigration and Naturalization Service (now known as Bureau of Citizenship and Immigration Services) forms, Social Security forms, etc. For instance, saying you have a same-sex partner on an immigration form could compromise the immigration status of you or your partner if both of you are not citizens (a question below discusses this in more detail).
You might feel you want to use your government forms to take a stand on the issue. Think long and hard about the risk you would be taking and consult an attorney if necessary. Willfully breaking the law, on principle or not, may leave you in a lot of trouble. (See the next question about suing to force the state to recognize your marriage.)
You should not expect that your marriage will provide a new level of protection for you and your children. Always consult a family law attorney when dealing with these issues because there is too much at risk if you do not take every step to protect your family.
If you are a same-sex couple with a valid marriage, you still should get a second-parent adoption if you have not already done so. Even if your valid marriage were to automatically make both parents the legal guardians of your children, or if New York’s legislature enacted a law allowing for all couples to marry in this state, you still need to have a second-parent adoption to protect your family when you are out of this state.
You should never assume that your marriage will be automatically recognized. Take every step available to protect your family by consulting a family law attorney.
How does this affect my taxes?
The NYCLU believes that, pursuant to the law, as articulated in both the Martinez decision and Governor Paterson’s May 14, 2008 memo to state agencies, the New York State Department of Taxation and Finance should enact policies ensuring that married lesbian and gay couples are recognized as married under state tax law (as discussed, federal tax law does not recognize a marriage of a same-sex couple). However, because the Martinez decision and the governor’s memo are relatively new, the state tax department has not yet announced any changes in its policies.
In the past, the state tax department issued an advisory opinion stating that a same-sex couple’s valid marriage is not recognized for state tax purposes because the federal Defense of Marriage Act prevents recognition of the marriage under federal law. Given the ever-changing nature of the law in this area, the NYCLU will be sure to continue updating this section when there are developments from the state tax department.
Like the situation with a valid marriage of a same-sex couple, the answer depends on what kinds of protections you are seeking. The NYLCU believes that a valid civil union from these states should be recognized in New York because it is considered the legal equivalent of a marriage in the state where it was entered. However, to date there is no valid New York court decision recognizing out-of-state civil unions in any context, including claims for wrongful death and worker’s compensation based on a civil union relationship.
The NYCLU and many other legal experts, including the Attorney General, believe that your civil union should be recognized in New York. The NYCLU hopes the Martinez decision will help courts throughout the state decide that civil unions also should be recognized in New York. However, the answer right now is not clear. If you have questions about whether your civil union will be recognized, you should consult a family law attorney.
Yes. While it is conceivable that the county could try to appeal the decision once the trial court issues a final order, the decision is valid at this time. Even if the county chooses to appeal a future final order, the state’s highest court would ultimately have discretion to reject the appeal again.
If someone refuses to respect my marriage because my spouse and I are of the same sex, should I sue?
Before you begin any kind of case about your marriage, you should contact the NYCLU or another LGBT legal organization. You may have a good claim that should be brought, but it’s also possible to do serious harm by suing. For instance, if you were to sue and lose, you could jeopardize your family’s protections. And simply bringing certain kinds of lawsuits could bolster support for anti-marriage fairness initiatives, which has happened in the past in other states. While we are confident that New York State is moving toward marriage fairness for all, bringing certain kinds of lawsuits could reverse some of that progress here or outside our state.
Please take a look at the “Make Change, Not Lawsuits” page (PDF) created by a number of national LGBT advocacy groups. This page explains that it is everyone’s goal to get full marriage fairness nationwide, and why people shouldn’t just sue in order to get certain benefits, like benefits regulated by federal law.
If you think you would like to be involved in a case to have your marriage recognized in New York, contact us by phone at (212) 607-3300 or by email at mfaiella@nyclu.org.
Special Considerations for Bi-National Couples and Servicemembers
No. Because immigration laws are federal laws, under DOMA your marriage will not be recognized under U.S. immigration law.
Important Warning for Bi-National Couples: Any non-U.S. citizen planning to marry should consult an immigration attorney before doing so. Many non-immigrant (temporary) visas require the foreign national to prove to U.S. Immigration that the foreign national’s intent is not to remain in the United States permanently. If your marriage becomes known to U.S. Immigration, this evidence of a reason to want to stay permanently in the United States could be a ground to deny your partner a visa in the future.
To help allow same-sex bi-national couples to stay together in the United States, click here to learn about the Uniting American Families Act and how to support it.
No. The military’s ban on openly gay, lesbian and bisexual service members (called “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass”) is still a valid federal law and is unaffected by the Martinez decision. Under the military’s ban, even attempting to marry someone of the same sex is grounds for discharge.
Join our Mailing List
