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Marriage Recognition Q&A for Same-Sex Couples

Background

This background discusses the legal developments that have led to New York State’s the recognition, in New York State, of the out-of-state marriages of same-sex couples.

Martinez v. County of Monroe: 2008 Case Requiring Respect for Our Marriages

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 2008, 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 2008, 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. In addition, the county indicated in the fall of 2008 that it no longer intended to appeal the case.

The Governor’s Counsel’s Memo to State Agencies Requiring Compliance with Martinez

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 same-sex 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 same-sex couples.

Soon after the memo was released, an Arizona-based anti-LGBT group sued the governor by claiming the memo brokewas a violation of the law. In September 2008, New York State Supreme Court, Bronx County, ruled that Governor Paterson’s memo is completely consistent with the marriage recognition rule, and dismissed the out-of-state conservative group’s lawsuit (Golden v. Paterson).

Other Cases Requiring or Permitting the Government’s Recognition of Our Marriages

On November 19, 2009, the New York Court of Appeals (New York’s highest court) unanimously affirmed two lower court decisions that had upheld policies by the state Department of Civil Service and Westchester County Executive that recognize the out-of-state marriages of same-sex couples. In its opinion in these two cases, Lewis v. Dep’t of Civil Serv. and Godfrey v. Spano, the Court of Appeals explicitly called on the legislature to take up the marriage bill that will allow all couples to marry in New York State. The court also left fully intact the Martinez decision and the intermediate appellate court’s decision in Lewis, both of which require recognition of the marriages.

Accordingly, the statewide law in New York is still that the marriages must be recognized under the marriage recognition rule.

Despite all of these positive developments LGBT families will have to wait until the state legislature passes the marriage fairness bill before they can marry here. To help with our efforts to pass the marriage fairness bill, visit www.MarriageNY.com or http://www.nyclu.org/issues/lgbt-rights/marriage-fairness, or contact NYCLU Lead Organizer, Erica Braudy at ebraudy@nyclu.org.

As always, the NYCLU will continue updating this online marriage Q&A to include the most current information regarding recognition of same-sex couples' valid, out-of-state marriages.

Frequently Asked Questions



I thought I couldn’t get married in New York if I’m in a same-sex relationship. Does this decision change that?

No. Same-sex couples still cannot get married in this state. In 2006, the New York’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 here, 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, visit marriageny.com". In May 2009, the State Assembly approved this bill in an 89-to-52 vote, Governor Paterson supports it, and even New York's highest court has asked the legislature to decide the issue. It is now up to the State Senate to vote on and pass the marriage bill so no New Yorker has to leave the state to get married.



I am married to my same-sex spouse. What does this mean for me?

Unfortunately, there is no one-size-fits-all answer; 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 a place where marriage is available to same-sex couples, or choose to marry in one of those places, 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 same-sex 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 the agency 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.



Must an insurance company provide my spouse and me with eligibility for coverage? And am I entitled to spousal health care coverage from my or my spouse’s employer if my spouse and I are married?

November 2008 Insurance Department Advisory Opinion

On November 21, 2008, the New York State Insurance Department issued a Circular Letter to all state-licensed insurance companies about an advisory opinion that requires all of those companies to provide spouses in married same-sex couples with the same eligibility for insurance coverage available to married opposite-sex couples. The advisory opinion arose from a dispute over accident and health insurance coverage, but the Insurance Department has stated that the reasoning applies to all kinds of insurance.

Nevertheless, because many individuals purchase their health insurance through employer-sponsored plans, please read below for more information.

Employer-Sponsored Plans

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 and New York State Insurance Department advisory opinion, 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 known as “self-funded”) health care plan. If your employer’s plan is not self-insured, then your employer must recognize your marriage and grant spousal health care coverage for a same-sex spouse. If your employer’s plan is self-insured, then your employer may not have to to grant spousal health care coverage for a same-sex spouse, but certainly can do so. Therefore, you should ask for health care benefits. If you are denied coverage, you should ask why.

Note: There are certain federal and state tax consequences to adding your spouse to your health care plan. Make sure to explore those consequences with your tax professional before you decide whether adding your spouse to your health care plan is the right choice for you. Of course, as we learn more information about the tax consequences for married same-sex couples, we will be sure to update this page.



If we are not already married, should we go get married in New Hampshire, Vermont, Iowa, Connecticut or Canada? Can we get married in Massachusetts? California? Where else can we get married?

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 New Hampshire, Vermont, Iowa, Connecticut, 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 some state trial courts have relied on the Martinez decision to rule that same-sex couples married in Canada can get divorced in New York, these decision are recent and no appeals court has yet ruled over such a case. In addition, both Canada and Massachusetts have one-year residency requirements for divorce, and Connecticut requires either one year of residency, intention by one party to reside in Connecticut, or that the cause for dissolution arose in Connecticut for divorce (see here at page 28). 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 Iowa, Belgium, Connecticut, 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 and, starting May 1, 2009, in Sweden. 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.

The Connecticut Supreme Court’s decision granting same-sex couples the right to marry there will take effect beginning on November 12, 2008. If you have questions about marrying in Connecticut, please check out this helpful Q&A and this guide on marrying in Connecticut.

We hope New York will join this list soon. Visit this page to support that effort.



RECENT UPDATES: New Places Where We Can Get Married

As mentioned above, couples should consult an attorney before entering into a marriage. Marrying brings with it some significant responsibilities and could impact any prior relationship the couple may have, such a civil union. Also, while New York State courts can rule over the divorce proceedings of same-sex couples who were married out of state, the law is not yet well-developed for that to be a certainty and many states with marriage have residency requirements for divorce proceedings. These are just some of the reasons to consult with an attorney before entering into a marriage.

Can we get married in New Hampshire?

On June 3, 2009, New Hampshire became the sixth state in this country to legalize marriage for same-sex couples when the legislature and governor approved the state’s pending marriage bill. That bill is available at this webpage, and should take effect beginning January 1, 2010.

Can we get married in Vermont?
On April 7, 2009, the Vermont Legislature overrode the governor’s veto of a bill to legalize marriage for same-sex couples. The bill is set to take effect on September 1, 2009, at which point Vermont will no longer issue civil unions. While Vermont does not have a residency requirement for entering a marriage, it does have a residency requirement for dissolving a marriage. For more information, view the Vermont marriage Q&A available on this page.

Can we get married in Iowa?
On April 3, 2009, the Iowa Supreme Court issued a unanimous opinion holding that same-sex couples must be allowed to marry in that state. The opinion is became effective on April 27, 2009, at which point same-sex couples have been allowed to marry in Iowa. For more information, click here.

Can we get married in Connecticut?

On October 10, 2008, the Connecticut Supreme Court held that same-sex couples there have the right to marry(http://www.glad.org/work/cases/kerrigan-info). The decision took effect on November 12, 2008. For more information on marrying in Connecticut, visit this page: (http://www.glad.org/uploads/docs/publications/ct-marriage-q-and-a.pdf); and this page: (http://www.glad.org/uploads/docs/publications/how-to-get-married-ct.pdf).

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 had been able to marry in Massachusetts only from May 2004 up until July 6, 2006. The reason why New York couples could not marry after July 6, 2006 was because of the 1913 law’s convergence with New York high court’s decision denying same-sex couples the right to marry on July 6, 2006 (see PDF document explaining it here). However, with the repeal of the 1913 law, New York couples can now go to marry in Massachusetts.



Marriage in California

On May 15, 2008, the California Supreme Court overturned the state’s ban on same-sex couples’ ability to marry in that state, and on June 16, same-sex couples were allowed to begin marrying there. We encouraged couples to take a look at this California Marriage FAQ page from the ACLU and other organizations for more information about the decision and its effects, as well as this Q&A and the ACLU LGBT & AIDS Projects.

On November 4, 2008, California voters narrowly passed an initiative called “Proposition 8” or “Prop 8” to amend the state constitution to ban same-sex couples from marrying there, and the ACLU and other groups immediately sued to challenge the constitutionality of Prop. On November 19, the California Supreme Court granted review in the case.

On May 26, 2009, the California Supreme Court issued an opinion (available here, stating that Prop 8 is constitutional, which means that same-sex couples cannot marry there until the initiative is repealed. Fortunately, the California Supreme Court unanimously held that the nearly 18,000 marriages of same-sex couples that were entered into between June and November 2008 are still valid. Look at page 5 of this document, put out by the Judicial Council of California, which summarizes the court’s opinion, or pages 132-35 of the opinion itself.

What do these developments in California mean if we are a same-sex New York couple that married in California?

Based on the California Supreme Court’s May 26, 2009 opinion, it is clear that a New York couple validly married in California should be considered married in New York.



Does the federal government recognize my marriage?

No. The federal government does not recognize marriages of same-sex couples due to a part of the Defense of Marriage Act (also called “DOMA”), called “Section 3,” which provides that the federal government will not recognize a same-sex relationship as a marriage.

As a result of Section 3 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.

In March 2009, an advocacy group called Gay and Lesbian Advocates and Defenders (GLAD) filed a lawsuit seeking to invalidate the part of DOMA that prevents the federal government from recognizing marriages of same-sex couples. The NYCLU will be sure to keep this Q&A updated with developments about the Section 3 DOMA challenge.



Can we say we are married?

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.



How does this affect my kids?

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.

Some positive news is that the Department of Health will now issue a birth certificate listing both the birth mother and her spouse in a marriage as parents where a child is born to a same-sex couple. And some recent New York State court decisions have eliminated some of the procedural hurdles faced by many families going through a second-parent adoption. But these developments still will not guarantee your parental rights outside of New York State, and that is why it is best to consult a family attorney and seek out a second-parent adoption.

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 state 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 same-sex 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 the purpose of joint filing a state tax return 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.

As stated above, there are certain federal and state tax consequences to adding your spouse to your health care plan. Make sure to explore those consequences with your tax professional before you decide whether adding your spouse to your health care plan is the right choice for you. Of course, as we learn more information about the tax consequences for married same-sex couples, we will be sure to update this Q&A.



We have a valid civil union from Vermont, Connecticut, New Hampshire or New Jersey. Does this mean we are married in New York, too?

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.

For information about Vermont civil unions and Vermont marriages for same-sex couples, visit this page.



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



We are a same-sex couple and one of us is not a U.S. citizen. Will getting married in Canada or elsewhere allow us to get spousal sponsorship benefits for U.S. immigration purposes?

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, visit this page to learn about the Uniting American Families Act and how to support it.



I am a service member in the U.S. military. Can I now get married outside of New York and keep my job in the military?

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.

This Q&A provides information on general legal principles only and is not intended as legal advice. For legal assistance, contact the NYCLU or a local attorney.

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