A sampling of changes adopted by state agencies to comply with Governor David A. Paterson’s directive to extend to same-sex couples married in other jurisdictions the rights and obligations afforded heterosexual married couples:
• The Department of Civil Service will construe laws relating to the payment of survivor’s benefits under collective bargaining agreements with state employees to include surviving same-sex spouses.
• The Commission on Public Integrity will require same-sex spouses to be included on employee ethics filings.
• The Department of State will construe laws on public cemeteries to give same-sex spouses the right to care, succession of ownership and right of interment in a plot.
• The Department of Taxation and Finance will construe sales tax exemptions, such as for the transfer of cars between spouses, to include same-sex spouses, and will include same-sex spousal income for purposes of determining eligibility for benefits such as the STAR property tax reduction program.
• The Department of Health will count same-sex spousal assets jointly for purposes of Medicaid eligibility.
• The Office of Mental Health will allow a same-sex spouse to challenge the involuntary commitment of a spouse in a state psychiatric hospital as well as to inspect the mental health records of a same-sex spouse to the extent permitted by law.
• The Crime Victims Board will make available spousal benefits to the same-sex spouse of a crime victim when all other eligibility requirements are met.
Source: Governor’s Office
Mr. Paterson’s aides said yesterday the review by counsels in state agencies of the more than 1,300 statutes and regulations referring to marriage is continuing. A Paterson spokeswoman, Erin Duggan, said many of the interpretations were “cut-and-dried,” such as references to “spouse” with no further distinction between husbands and wives.
But she said “potential obstacles” have been flagged by some agencies, such as the Department of Taxation and Finance. In such areas as joint filing for income and estate taxes, laws reference federal laws, and state government attorneys have raised questions about whether same-sex filing procedures would violate the 1996 federal Defense of Marriage Act, according to Ms. Duggan.
“The answer right now isn’t clear, so the state will continue to look into these to find solutions for implementation,” Ms. Duggan said.
Mr. Paterson said he made his decision because New York risked legal action if it did not give equal recognition under the law to married gay couples as it affords to married heterosexual couples (NYLJ, May 30). He also argued that his directive was in keeping with the state’s long tradition of recognizing marriages that are valid in other states, such as common law marriages, which are not valid in New York.
Opposition Brewing
On June 3, the Arizona-based Alliance Defense Fund sued Mr. Paterson in Supreme Court in the Bronx over his directive on same-sex couples. The suit, filed on behalf of five Republican state senators, contends that the governor usurped the authority of the Legislature by extending the rights to same-sex couples.
Advocates for gays in New York questioned how many same-sex couples in New York would seek to be married in Massachusetts, even though it is a far more convenient option than California or, for most New Yorkers, Canada.
Sentiment is high among some gay New Yorkers for holding out until the day they can be legally wed in New York, according to Jeffrey S. Trachtman, who has represented gay couples in marriage equality cases.
“It is still not a substitute for people to get married in their own backyards,” said Mr. Trachtman, pro bono chairman at Kramer Levin Naftalis & Frankel. “That is what we are working toward. I have a lot of friends who are going to wait. They say, ‘I have a right to get married in my own state.’ They are New Yorkers who want their rights vindicated at home. I don’t blame them.”
Some gay marriage proponents said state Senate elections this November could result in a change in the balance of power between Republicans and Democrats and the elimination of the GOP majority’s ability to block a gay marriage bill. Republicans have a 31-30 advantage over Democrats in the Senate, with one traditionally Republican seat vacant.
The state Assembly approved a bill legalizing same-sex marriages in 2007 by an 85-61 margin, but the measure failed to get out of committee in either 2007 or 2008 in the Senate. Opposition is chiefly from religious groups, especially the state’s Catholic Conference, which represents New York’s Roman Catholic bishops.
Senate Democratic Minority Leader Malcolm Smith of Queens has said that if he becomes majority leader in 2009, when the new Senate will convene, a gay marriage bill will be put before the chamber.
High Court Rulings
The Court of Appeals last considered the gay marriage question in 2006, when it ruled in Hernandez v. Robles, 7 NY3d 338, that there were valid public policy purposes in limiting marriage in New York to a man and a woman. The Court also decided if same-sex marriage is to be legalized, it must be done by the Legislature, not the courts.
Most legal observers on the same-sex marriage front are watching Martinez v. County of Monroe as the case in which the Court of Appeals could take up the same-sex marriage question again. In Martinez, the Appellate Division, Fourth Department, recognized that a gay couple’s marriage in Ontario entitled a spouse to health coverage through her partner’s employer, Monroe Community College.
Without ruling on the merits, the Court of Appeals declined in May to hear an appeal of the Fourth Department’s ruling because the question of damages had yet to be decided at the trial court level. The case can still return to the Court of Appeals for consideration on the merits.
Citing Martinez, the New York Civil Liberties Union brought a suit in a similar case in July on behalf of a lesbian couple in Erie County who were denied spousal coverage by BlueCross BlueShield of Western New York. On July 28, the insurer announced it has adopted a new policy to provide coverage to validly married same-sex spouses.
The Erie County couple also had been married in Canada.
“Every step that is taken toward marriage equality helps create momentum,” Mr. Trachtman said. “It helps convince people that it’s no big deal. It becomes a non-issue.”
Less-Risky Choice
Besides the difference in distance between California and Massachusetts, an impending statewide referendum in California that could invalidate that state’s Supreme Court ruling legalizing gay marriage might make a California license a less-attractive option for some New Yorkers, said Roberta A. Kaplan, a partner at Paul, Weiss, Rifkind, Wharton & Garrison.
“In Massachusetts, unlike in California, there is no risk whatsoever that the law is going to be rescinded,” she said in an interview. “There is no ballot issue that has any realistic, or even remote, chance of success.”
Both Mr. Trachtman and Ms. Kaplan helped represent plaintiffs in the 2006 cases decided by the Court of Appeals.
One openly gay New Yorker who said he will delay his wedding until the Empire State legalizes gay marriage is Daniel J. O’Donnell, the Democratic assemblyman from Manhattan who is chief sponsor of the same-sex marriage legislation in the Assembly.
“I intend to wait for the day I can do it here,” he said in an interview yesterday. “I was born here, I was raised here, I pay taxes here. I should be given the same opportunity that all members of the state Legislature have, which is to marry the person they love, presuming that they aren’t married to someone else.”
Mr. O’Donnell said he has been with his partner, John Banta, for nearly 28 years.
Mr. O’Donnell said he expected “people who don’t have the patience that I do” to take advantage of the easier access of Massachusetts compared to other jurisdictions where gay marriage is legal.
“Flying to Canada or Palm Springs is one thing,” he said. “But driving to the Berkshires, that’s a lot different.”
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