Update, July 6, 2011: The current version of this FAQ can be found at Fair Marriage Laws in New York: Frequently Asked Questions (2011).
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 County 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.
Update, July 6, 2011:
The current version of this FAQ can be found at Fair Marriage Laws in New York: Frequently Asked Questions (2011).
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). But because many state agencies will need to be made aware of 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 decision(PDF) 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.
Am I entitled to spousal health care coverage from my or my spouse’s employer if my spouse and I are married?
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.
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.
The New York State Department of Civil Service and the New York State Retirement System both have explicit policies stating that they recognize marriages of same-sex couples. And so do 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.
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 we are not already married, should we go get married in Canada? Can we get married in Massachusetts? 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 Canada 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 for divorce. These are just some of the reasons to consult an attorney before entering into a marriage anywhere.
According to a 2006 opinion from the Massachusetts Supreme Judicial Court and a later decision from a Massachusetts lower court, New York same-sex couples could validly marry in Massachusetts only between May 17, 2004 and July 6, 2006 (see PDF document here). If this situation ever changes so that New Yorkers can marry in Massachusetts, the NYCLU will be sure to spread the word.
The places where same-sex couples can get married include Belgium, Canada, the Commonwealth of Massachusetts (for New Yorkers, only between May 17, 2004 and July 6, 2006, as noted above), the Netherlands, South Africa, and Spain. (See below for information about lesbian and gay couples’ ability to marry in California.) Like Massachusetts, many of these countries 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 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. According to procedural rules in California, it will take at least 30 days for this decision to take effect, meaning that it could be about a month before lesbian and gay couples can marry there. Also, because this is a very new decision, we will be updating this section to explain developments in California. Therefore, 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(http://www.hrc.org/issues/5443.htm) (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.
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. (See the next question about suing to force the state to recognize your marriage.)
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.
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?
According to a 2006 advisory opinion from the New York State Department of Taxation and Finance, a same-sex couple’s valid marriage is not recognized for state tax purposes because the federal Defense of Marriage Act(http://www.hrc.org/issues/5443.htm) prevents it from being recognized under federal tax law . The New York State Department of Taxation and Finance has not changed its 2006 advisory opinion. If, however, it does, the NYCLU will be sure to announce that decision.
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.
Does the fact that the highest court dismissed the county’s request for an appeal mean that the intermediate court’s decision is valid?
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.
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 firstname.lastname@example.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, click here 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.
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