No Shared Benefits
for 2 Men Wed in Canada,
Judge Rules
By ALAN FEUER,
NYTimes on the Web, July 13, 2006
Less than a week after New York’s
highest court ruled that denying same-sex couples the right to marry did not
violate the State Constitution, a lower court on Long Island denied health
benefits yesterday to the partner of a Uniondale man.
In his ruling, a State Supreme Court justice in Mineola said that even though
they had wed two years ago in Canada, the men’s marriage was not recognized by
the state. The decision was the first by a New York Court to refer
directly to last week’s watershed decision by the New York Court of Appeals.
The appellate court, by a 4-to-2 majority, found that in laws dating back nearly
100 years, the State Legislature had intended to limit marriage to a union
between a man and a woman, and that lawmakers had a rational basis for doing so.
In a three-page order in the Long Island case, Justice Edward W. McCarthy denied
a motion by the plaintiff, Duke L. Funderburke, who was trying to obtain spousal
health benefits from the Uniondale Union Free School District for Bradley Davis,
his partner of 43 years. Mr. Funderburke, now 73, and Mr. Davis, 68, were
married in Ontario in 2004, but in his ruling Justice McCarthy wrote that he was
“constrained to follow the recent holding of the Court of Appeals,” under which,
he added, he could not consider Mr. Funderburke and Mr. Davis to be spouses or
their union to be a marriage.
The case began last year when the Lambda Legal Defense and Education Fund filed
a lawsuit on Mr. Funderburke’s behalf against the school district and the State
Department of Civil Service. Mr. Funderburke worked as a teacher in Uniondale
for more than 20 years before retiring in 1986. After he and Mr. Davis
were married, he asked that his retirement benefits be extended to Mr. Davis — a
request that the district rejected.
At the time the lawsuit was filed, Mr. Funderburke’s lawyer, Alphonso David,
argued that if gay couples were validly married outside New York, the marriages
would be legally recognized by the state. Yesterday, however, he was
confronted by a ruling that seemed to contradict that contention.
“This decision misapprehended the Court of Appeals decision,” Mr. David said
yesterday of Justice McCarthy’s ruling. “Our position has always been that
same-sex couples cannot get married in New York, and that’s why out of state
marriages should be respected.”
Mr. David said that he would soon discuss the justice’s decision with Mr.
Funderbuke and Mr. Davis to consider their options, one of which, he added, was
to appeal.
Last year, Eliot Spitzer, the state attorney general, decided not to defend the
Department of Civil Service in the case. Typically, the attorney general’s
office defends state agencies that are challenged by lawsuits, but Mr. Spitzer
declined to do so in this case, under an advisory order that he issued in March
2004, which said that valid gay marriages from out of state should be recognized
by New York State.
After the Court of Appeals decision last week, Mr. Spitzer, a candidate for
governor, said that he would draft legislation to legalize gay marriage in the
state if elected in November.
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