The New York same-sex “marriage” controversy explained

(Note: A very informative editorial in the New York Daily News has been added to this entry.)

An editorial in the May 30 New York Post provides the first understandable picture I’ve seen of the legal issues surrounding New York Gov. David Paterson’s directive on homosexual “marriage.”

… AND GOV. MEDDLE

May 30, 2008—Meanwhile, when the governor does feel the need to act decisively, he can.

Even when it means unilaterally ordering a seismic shift in New York state’s recognition of same-sex marriage—and then keeping it quiet for fully two weeks.

Go figure.

Back on May 14, it turns out, Paterson’s counsel ordered all state agencies to recognize as valid all same-sex marriages performed in jurisdictions where it is legal to do so.

That makes New York the only state that recognizes same-sex marriages legally entered into elsewhere—even though such unions may not be performed here.

The order could affect thousands of people and will require rewriting some 1,300 different state laws and statutes.

Paterson insisted he wasn’t making “an end run around the Legislature”—which has refused to legalize gay marriage. Of course, he was doing exactly that.

The directive is based on a Rochester appellate-court ruling last February that ordered the state to recognize a same-sex couple’s 2004 marriage, which was performed in Canada.

Under New York’s “marriage recognition rule,” that court said, out-of-state marriages must be recognized unless they involve incest or polygamy or are specifically banned by law. And New York (unlike 41 other states) hasn’t explicitly outlawed same-sex marriage.

The Court of Appeals, the state’s highest tribunal, has not yet evaluated the Rochester court’s ruling. But the high court’s own 2006 decision on same-sex marriage was crystal clear: The emotionally charged issue is a matter for the Legislature to decide.

Which is precisely how any such ground-breaking change to centuries of accepted social policy should be made.

Not by an activist governor and his counsel. And not by a single, or even a panel, of activist judges.

We remain convinced that marriage should be limited to opposite-sex couples. But that’s a decision for the people of New York to make.

And since the Constitution doesn’t allow for statewide popular referenda, the only way for that to happen with the consent of the governed is through their elected representatives in Albany.

Paterson has erred, and badly.

* * *

June 3, 2008

Here is another good editorial, from the June 2 New York Daily News, explaining the supposed legal basis for Governor Paterson’s action in ordering state agencies to recognize out-of-state same-sex “marriages,” and how weak that basis is.

By the way, Paterson’s precipitous move on this front shows once again how non-discrimination is the true beating heart of a liberal. Paterson’s modus operandi as governor has been that of a moderate, a man of consensus, an executive who works with the legislature—the opposite of his high-handed, arrogant predecessor, Eliot Spitzer. But here Paterson acted completely unilaterally and even secretly to impose this radical change on New York State. Why the shockingly uncharacteristic behavior? Because homosexual marriage is not like the state budget. Homosexual marriage is the next great step forward in the march of non-discrimination, and thus almost a sacred cause. So all the usual cautions and considerations be damned.

Here’s the editorial:

Dave’s shotgun weddings
New York Daily News, June 2, 2008

Gov. Paterson moved too far, too fast in ordering state agencies to recognize gay marriages performed in other jurisdictions as legally valid in New York.

Paterson’s directive, if carried out, would all but legalize gay marriage in the state. Built on a badly reasoned midlevel court decision, it’s an end-run around the Legislature, the proper forum for deciding a legal and cultural change of this magnitude.

Not that there’s anything wrong with gay unions. Same-sex couples—many thousands of whom are, in fact, living as families and raising children—should be allowed to enter civil unions with rights and privileges equivalent to marriage.

But that’s not Paterson’s call to make unilaterally. Nor should it be left up to activist judges. For better or worse, this is a job for the Assembly and Senate.

A supporter of gay marriage, Paterson seized on a decision rendered in February by an upstate Appellate Division panel. The judges found that Monroe County must provide health benefits to the spouse of a lesbian employee who was married in Canada.

The rationale was that, under long-standing practice, New York recognizes marriages from other states and countries unless the Legislature has banned specific types of unions. For example, weddings between minors.

But to apply that principle to gay marriage flies in the face of common sense. First, the Legislature had no reason to ban out-of-state same-sex marriages because they didn’t exist anywhere until a few years ago. Second, the Court of Appeals, the state’s highest, ruled in 2006 that the Legislature had, in fact, limited marriage to a bond between a man and a woman.

Even worse, the Appellate Division declared that Monroe County, which is providing benefits now, could be sued for damages for the years in which those benefits were denied. This potentially exposes taxpayers to huge liability for the good-faith decisions of government officials.

Taken as a whole, the decision was a brazen repudiation of the wisdom shown by the Court of Appeals in the 2006 ruling that placed responsibility with the Legislature for saying yes or no to gay marriage.

And Paterson was wrong in saying the Court of Appeals had dismissed the Monroe case. In fact, the high court turned it away only because the matter wasn’t ripe yet for a hearing. But it soon will be.

It is a shaky legal foundation on which Paterson has directed officials to reinterpret an estimated 1,300 laws and regulations involving marriage rights—ranging from who is allowed to adopt children to who is allowed to share a fishing license.

He is jumping the gun. Our bet is that the high court will overturn the Appellate Division by applying the same reasoning it did before: The job belongs not to the courts and not to Paterson, but to the Legislature.

The right thing to do is to pass a civil-unions law. And only lawmakers can make that happen.

Posted by Lawrence Auster at June 02, 2008 12:25 AM | Send