The (halfhearted) New York Legal Blog Round Up
The New York Legal News Round Up

It all depends on how you define ‘marriage’

Drlogo11_2 This week's Legal Currents column, which is published in The Daily Record, is entitled "It all depends on how you define ‘marriage’ "  The article is set forth in full below and a pdf of the article can be found here.

My past Legal Currents articles can be accessed here.


It all depends on how you define ‘marriage’

Last week, in Martinez v. County of Monroe, 2008 NY Slip Op. 00909, the Appellate Division, Fourth Department held that valid marriages of same-sex couples performed in other jurisdictions must be recognized in New York.

In Martinez, the plaintiff sued her employer, Monroe Community College (MCC), seeking, in part, a declaration that MCC was required to recognize her valid Canadian marriage to her same-sex partner and provide her partner with spousal health care benefits.

The court noted that New York recognizes all marriages occurring outside of the state unless the marriage is prohibited by the “positive” law of New York, or the marriage is contrary to the prohibitions of natural law, such as those involving incest or polygamy. The court concluded same-sex marriages did not fall within either of the exclusions to the rule.

The Fourth Department reached this conclusion in spite of the recent New York State Court of Appeal’s decision in Hernandez v. Robles, 7 N.Y.3d 338 (2007), in which the court held the New York Constitution did not compel the recognition of same-sex marriages occurring in New York. Rather, because the court in Hernandez indicated the Legislature was free to enact legislation recognizing same-sex marriages, same-sex marriages were not necessarily against public policy in our state, despite MCC’s assertions to the contrary.

From a philosophical standpoint, I agree wholeheartedly with the Fourth Department, just as I found the dissent’s argument in Hernandez to be far more palatable than the majority’s.

In my opinion, marriage, at its most fundamental level, is about the connection and commitment between two people, founded on mutual respect and love, a joining of two souls, entered into by individuals willing to weather the course together, for better or for worse, for richer or for poorer, in sickness and in health.

The Hernandez majority, however, reduces this fine institution to its most base level, and focuses an inordinate amount of attention on heterosexual sex and one potential outcome of that act — a pregnancy.

Although the Fourth Department distinguished the Hernandez decision, I predict it will be pivotal, should this case reach the Court of Appeals, although for an entirely different reason than that discussed in Martinez.

Determination of the issues raised in Hernandez necessarily revolve around the definition of the term “marriage.” The concept is not defined in the Domestic Relations Law and, instead, has been refined through case law.

As explained in Hernandez, “implicitly or explicitly, the Domestic Relations Law limits marriage to opposite-sex couples.” In New York, in other words, the term “marriage” is limited to a marriage contract entered into between a man and a woman. That another jurisdiction chooses to define marriage more broadly than New York may not require our state to expand its concept of marriage.

By way of example, suppose New York enacted a law requiring all dogs transported into the state to be quarantined for one month. Cats, however, are not to be subjected to the requirement.

One day, a woman attempts to enter the state with a dog and asserts it is not subject to the quarantine requirement since her state recently passed legislation deeming all four-legged domesticated animals as “cats”; therefore, what appears to be a “dog” actually is a “cat”.

Under this scenario, New York reasonably could assert that “a dog is a dog,” despite another jurisdiction’s legislation to the contrary, and the animal entering would be quar- antined.

Likewise, because New York defines marriage as between a man and a woman, it is not required to recognize a same- sex commitment made in another jurisdiction since it does not fall within New York’s definition of “marriage.” The issue of whether the out-of-state commitment should be recognized is moot, since the commitment is not a “marriage” under New York law.

In my opinion, the strongest defense to this argument would be that, because the Legislature chose not to specifically define “marriage” in the Domestic Relations Law or elsewhere, its intent was to allow the concept of marriage to change with the times, rather than limiting it to a single, rigid definition.

Is a “Canadian marriage” the same as a “New York marriage” in this context? For now, the answer is “yes.”

It will be interesting to see what tomorrow brings.


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Jim Rose

It all depends on how you define "marriage" in this case, and before the Senate it all depends on how you define "torture." We could save time if we defined them both the same way.

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