The New York Times
N.Y. / Region
Gay Marriage Gains
Notice in State Court
HARTOCOLLIS, nytimes.com on the Web, March 6, 2008
On the way home from work in
Rochester, Patricia Martinez stopped at a liquor store and bought a small bottle
of Champagne to celebrate her marriage to another woman. The wedding took
place in Canada nearly four years ago, but it wasn’t until Feb. 1 that a New
York appellate court declared it valid in the state.
Last week in Manhattan, a State Supreme Court justice, ruling in a divorce
proceeding, recognized the Canadian marriage of two New York City women, known
publicly as Beth R. and Donna M. — or Mom and Mommy to the two young children
they had been raising together.
Less than two years after New York’s highest court refused to legalize gay
marriage, leaving it up to a divided Legislature, courts in Rochester and
Manhattan, as well as state and local officials, have begun to carry out what
some say is the de facto legalization of gay marriage — and gay divorce —
in New York for the price of, say, a ticket to Toronto.
Advocates for same-sex marriage say the two court decisions last month granting
reciprocity in New York to gay marriages in other jurisdictions simply underline
what most people would consider common sense.
“If a heterosexual couple got married in France and then came here, they would
be married,” said Jeffrey Wicks, a lawyer who represented Ms. Martinez in
cooperation with the New York Civil Liberties Union. “We recognize foreign
marriages, just the same as we recognize Mexican divorces.”
But opponents are not giving up so easily. Both rulings are being
appealed, and the Alliance Defense Fund, a national organization opposed to
same-sex marriage, has gone to court to challenge policy decisions by the
Westchester County executive, the state comptroller and the state Civil Service
Department granting benefits to gay couples married out of state. On
Monday, a State Supreme Court justice in Albany upheld the Civil Service
Department’s authority to recognize gay marriage, citing the Martinez decision
as a precedent.
Recognition of same-sex marriage is a huge change that “should not be something
that bypasses the democratic process,” said Brian Raum, senior legal counsel for
the Alliance Defense Fund.
“The issue is percolating up through the court system, and ultimately it’s one
that the Court of Appeals is going to have to resolve so there isn’t any
inconsistency,” he said.
New York has become a testing ground for gay marriage reciprocity because most
other states have pre-empted it by passing Defense of Marriage Acts, which
explicitly prohibit gay marriage. Only one state, Massachusetts, allows
gay marriage, though the Supreme Courts of Connecticut and California are
considering the issue. In New Jersey, where the Legislature has approved
civil unions, the attorney general’s office has said that same-sex marriages
performed in Massachusetts or in countries including Canada and the Netherlands
should be called civil unions, not marriages, though both have the same rights
Just two years ago, it seemed that gay marriage was at a dead end in New York.
The state’s high court, the Court of Appeals, ruled in July 2006 that the
state’s Constitution did not compel the recognition of same-sex marriage, and
that it was up to the Legislature to change the traditional definition of
So far, that has not happened. A bill passed the Assembly 85 to 61 last
June, but has been stalled in the Senate.
Advocates say that the patchwork of laws and decisions about gay marriage across
the country has put gay couples and their families in a kind of legal limbo.
“Marriage law aims at providing stability to couples, but when couples don’t
know whether their marriage will be recognized from one place to another,
there’s a loss,” said Suzanne Goldberg, director of the Sexuality and Gender Law
Clinic at Columbia Law School.
The case of Beth R. vs. Donna M. in the State Supreme Court illustrated
some of the legal gray areas for a couple who were raising two children
together. While the ruling validated their marriage, it actually came in
the midst of a divorce proceeding. The decision was reported by The New
York Post last week.
The women, who have not made their full names public but who both work in the
media, met in 1999 and moved in together in 2002, the court’s decision said.
Donna M. became pregnant by artificial insemination in 2003, and just before the
baby was due, the couple, who live in Manhattan, went to Toronto and took out a
marriage license. But they postponed the wedding because of a death in the
They took out a second license and were married on Feb. 14, 2004, after the
birth of the first child but before the birth of a second child, also by
According to the judge’s decision, the plaintiff, Beth R., coached her partner
through the births of both children, cut their umbilical cords and gave the
children her last name. The couple sent out birth announcements.
They taught the older girl to call her biological mother Mommy, and Beth R. was
Mom. They chose a nanny, and went to preschool conferences. Donna M.
named Beth R. as the children’s guardian, although they were never adopted.
But last April, Donna M., the biological mother, served an eviction notice on
Beth R. A week later, Beth R. filed for divorce, so she could “legally end
the marriage and someday move on if she wants,” said Susan Sommer, her lawyer
and senior counsel for Lambda Legal, a gay rights legal group. Beth R.
wanted “equitable distribution of marital property,” according to her divorce
filing, and to ensure a continuing relationship with the children, including
giving them financial support, her lawyer said.
The divorce action put the defendant, Donna M., in the peculiar position of
arguing that their marriage was invalid and, therefore, there could be no
divorce. Her lawyer, Bettina D. Hindin, said in an interview last week
that her client, who is nearly 40, had had children because her biological clock
was ticking and that she had been pressured into a marriage ceremony — a
“shotgun type of situation” — which she thought of as just a symbolic
commitment. “You can stand in front of a rabbi or a priest, and it’s not a
marriage,” Ms. Hindin said. “It’s like staging a murder. You can
make it look like a murder, but it’s not necessarily a murder.”
But the State Supreme Court Justice, Laura E. Drager, disagreed, saying that New
York honors marriages performed out of state unless they are specifically
prohibited by law, which gay marriage is not, or “abhorrent to public policy,”
as in cases of incest or polygamy.
The presumption of reciprocity is so strong that even a marriage between an
uncle and his niece, which would have been forbidden in New York, was recognized
in New York after it was performed in Rhode Island, she wrote in her Feb. 25
The lawyers said that having upheld the validity of the marriage, the judge will
now move to traditional questions in a divorce like grounds, custody, visitation
and financial support for the children, alimony and distribution of marital
Roberta A. Kaplan, who argued the case for gay marriage before the high court in
2006, said the Beth R. case showed that gay breakups could be just as bitter as
straight ones, and needed the same legal protections. “It’s a very
depressing way of looking at the world, but this stuff is most important when
bad things happen — if there’s a death, if there’s a split,” Ms. Kaplan said.
In the Rochester case, the Canadian marriage between Ms. Martinez and Lisa Ann
Golden was recognized by the Appellate Division of State Supreme Court in Monroe
County, which ordered that Ms. Martinez’s health benefits from her job as an
administrator at a community college should be extended to her spouse.
Monroe County argued that the marriage violated public policy as reflected in
the 2006 Court of Appeals decision, and said it would appeal.
Justice Drager cited the Rochester case as a precedent, and Ms. Sommer said that
the Monroe County appellate decision is binding on lower courts throughout New
York until there is a contrary ruling from another appellate court.
Attorney General Andrew M. Cuomo filed a supporting brief in the Rochester case,
saying that reciprocity for same-sex marriage “is the declared policy of the
The trend in court, Ms. Sommer contended, “just helps give an air of
inevitability” to same-sex marriage.
For her part, Ms. Martinez said that since the court decision, she and Ms.
Golden had gone from feeling like they had checked their marriage at the border
to feeling like newlyweds. “Now we feel that we are very married in New
York,” she said.