A New York judge cracks the door open for same sex marriage

By Nancy Jane Moore

Justice Joan Lefkowitz (pictured at right), who is an elected trial court judge in New York, ruled March 12 that a Westchester County executive order recognizing same sex marriages performed in other jurisdictions is perfectly legal. It doesn't violate state law or the state constitution.

Over on Balkinization, where the law professor bloggers add depth to the legal news of the day, Andrew Koppelman speculates that the anti-gay group that sued to prevent the county from recognizing same sex marriage may have made a strategic error. Lefkowitz's opinion "applies well-settled choice of law principles," Koppelman says, making it possible that her opinion will appeal to the swing votes on the New York Court of Appeals, which rejected same sex marriage by a close vote last year, mostly on the grounds that the decision should be made by the legislature.

What Westchester County Executive Andrew Spano did was to issue an executive order last June instructing county agencies to grant the same rights to those in same sex marriages (done legally in other jurisdictions like Canada or Massachusetts) that it does to those in heterosexual marriages. This was mostly a symbolic gesture, since most of the significant rights granted to married couples are from the state, not a local government.

But even though the order didn't really do much, the Alliance Defense Fund sued on behalf of taxpayers, saying the county was acting illegally. Justice Lefkowitz responded with a reasonable rationale upholding the county rule. She noted that even though New York does not allow same sex marriages, it also doesn't have a so-called "defense of marriage" act that would prohibit it from recognizing same sex marriages from other jurisdictions. An informal opinion from the state attorney general in 2004 said that the question of recognizing same sex marriages from other jurisdictions was separate from whether New York allowed people of the same sex to marry, the justice said in her ruling.

And, at the same time, the New York courts have a long history of recognizing the legality of marriages performed in other jurisdictions that could not be performed in New York. Justice Lefkowitz writes:

It is well settled in New York that the courts as a matter of comity will recognize out-of-state marriages, including common law marriages, unless barred by positive law (statute) or natural law (incest, polygamy) or otherwise offensive to public policy.

Although she notes that the cases upholding this principle all involve heterosexual marriages, she points out:

New York has recognized out-of-state marriages, valid where contracted, though the purpose was to evade New York laws proscribing such marriage.

Lefkowitz clearly doesn't think same sex marriages are barred by "natural law" nor that they are "offensive to public policy." She points out that the legal rights of homosexuals have expanded in recent years and that there have been changes in New York evidenced by domestic partner benefits and rights to state retirement funds. Therefore, she found that the executive order wasn't illegal and concluded that the county executive order was not a law, but:

a policy implementation device in accordance with the current and evolving state of law on recognition of same-sex marriages out-of-state.

You can read her opinion in a pdf file.

The anti-gay group is appealing the decision, of course. I hope Koppelman is right that Lefkowitz's opinion is so well constructed that the Court of Appeals will uphold it. If they do, he thinks it will become possible for gay New York couples to slip across the border at Niagara Falls and get married in Canada, then come back to New York and have their marriages recognized, giving New York de facto same sex marriage.

It would certainly be sweet if that happened because an anti-gay group wanted to prevent same sex couples from getting discounts to county parks.