Lewis v. New York State DepartmentLewis v. New York State Department
Brian W. Raum, Scottsdale, Arizona, and Cutler, Trainor & Cutler, L.L.P., Malta (James P. Trainor of counsel), for appellants.
Andrew M. Cuomo, Attorney General, Albany (Sasha Samberg-Champion of counsel), for New York State Department of Civil Service and another, respondents.
Susan L. Sommer, Lambda Legal Defense and Education Fund, Inc., New York City, and Kramer, Levin, Naftalis & Frankel, L.L.P., New York City (Jeffrey S. Trachtman of counsel), for Peri Rainbow and another, respondents.
Frederick C. Veit, National Legal Foundation, Briarcliff Manor, for National Legal Foundation, amicus curiae.
Vincent P. McCarthy, American Center for Law and Justice, N.E., Litchfield, Connecticut, and Kriss, Kriss & Brignola, L.L.P., Albany (Charles Kriss of counsel), American Center for Law and Justice, N.E., and Benjamin P. Sisney, American Center for Law and Justice, Virginia Beach, Virginia, for American Center for Law and Justice, N.E., amicus curiae.
Michael A. Cardozo, Corporation Counsel, New York City (Susan Paulson of counsel), for City of New York, amicus curiae.
Matthew Faiella, New York Civil Liberties Union Foundation, New York City, for New York Civil Liberties Union Foundation, amicus curiae.
OPINION OF THE COURT
Rose, J.
When defendant Department of Civil Service announced that it would recognize the parties to a same-sex marriage as spouses if their marriage were valid in the jurisdiction where it was solemnized, thereby allowing such spouses of state employees access to the benefits provided under the New York State Health Insurance Program (see
While the type of marriage involved here is relatively novel, there are longstanding rules of law that have guided our courts in determining whether persons validly married elsewhere will be considered married in New York. Rooted ultimately in principles of comity and choice of law that give controlling effect to the laws of other jurisdictions unless they “would do violence to some strong public policy of this [s]tate” (Byblos Bank Europe, S.A. v Sekerbank Turk Anonym Syrketi, 10 NY3d 243, 247 [2008] [internal quotation marks and citation omitted]; see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 319 [1994]; Restatement [Second] of Conflict of Laws § 6), the well-settled marriage recognition rule “recognizes as valid a marriage considered valid in the place where celebrated” (Van Voorhis v Brintnall, 86 NY 18, 25 [1881]), and the courts of New York must follow that rule unless the out-of-state marriage falls within one of its two exceptions (see Matter of May, 305 NY 486, 490 [1953]; Moore v Hegeman, 92 NY 521, 524 [1883]; Thorp v Thorp, 90 NY 602, 605 [1882]; Van Voorhis v Brintnall, 86 NY at 26). The first exception occurs where there is a “New York statute expressing clearly the Legislature‘s intent to regulate within this [s]tate marriages of its domiciliaries solemnized abroad” (Matter of May, 305 NY at 493). Such a statute must convey, in express terms, a legislative intent to void a marriage legally entered into in another jurisdiction (see Van Voorhis v Brintnall, 86 NY at 34-35; Matter of Peart, 277 App Div 61, 70 [1950]). The second exception to the marriage recognition rule occurs in cases where an aspect of the out-of-state marriage is abhorrent to New York public policy, such as incest or polygamy (see Matter of May, 305 NY at 491; Van Voorhis v Brintnall, 86 NY at 26). This exception has been invoked
Our courts have narrowly construed these two exceptions, applying the marriage recognition rule to recognize a wide variety of out-of-state marriages that would not qualify as marriages if they had been solemnized in New York. These include the second marriage of a divorced spouse even though such remarriage was expressly precluded at the time in New York by the former
Given our longstanding application of the marriage recognition rule to determine whether out-of-state marriages not meeting our own definition of a marriage will, nevertheless, be recognized in New York, we must reject plaintiffs’ initial contention that the rule can have no application here. Specifically, plaintiffs argue that the rule does not apply because same-sex marriages valid in the jurisdiction where solemnized are not “marriages,” as that term is defined in New York. In every case in which the rule has been applied, however, the out-of-state marriage failed to meet New York‘s definition of a marriage in some respect. Also, while the Court of Appeals has held that the
Plaintiffs argue in the alternative that such marriages fall within one of the rule‘s two exceptions. Clearly, however, the rule‘s first exception is inapplicable because no New York statute expressly precludes recognition of a same-sex marriage solemnized elsewhere. While the Court of Appeals has held that the provisions of the
As for the second exception precluding recognition of an incestuous or polygamous marriage, we note that an out-of-state same-sex marriage would not fall within that preclusion unless the same-sex spouses were closely related or were more than two in number, situations not under consideration here. Nonetheless, since this exception is rooted in the idea that some marriages are abhorrent to New York public policy (see Villafana v Villafana, 275 App Div 810, 811 [1949, Callahan, J., dissenting]; Godfrey v Spano, 15 Misc 3d 809, 812-813 [2007], affd 57 AD3d 941 [2008]; Matter of Incuria v Incuria, 155 Misc at 759; People v Kay, 141 Misc 574, 578 [1931]; see also Cunningham v Cunningham, 206 NY at 349; Langan v St. Vincent‘s Hosp. of N.Y., 25 AD3d 90, 101 [2005, Fisher, J., dissenting], appeal dismissed 6 NY3d 890 [2006]; Matter of Bronislawa K. v Tadeusz K., 90 Misc 2d 183, 185 [1977]), we must consider
The Court of Appeals has defined New York‘s “public policy” as “‘the law of the [s]tate, whether found in the Constitution, the statutes or judicial records‘” (Mertz v Mertz, 271 NY 466, 472 [1936], quoting People v Hawkins, 157 NY 1, 12 [1898]; see Matter of Rhinelander, 290 NY 31, 36 [1943]). Unlike a majority of the states, and despite having had the opportunity to do so (see e.g. 2007 NY Assembly Bill A4978), New York has not taken the controversial step of enacting legislation to deny full faith and credit to out-of-state same-sex marriages as permitted under the federal Defense of Marriage Act (see
Plaintiffs also claim that health insurance benefits cannot be extended to the parties to a same-sex marriage because they are not “spouses” as normally defined under
To the extent that plaintiffs claim that the Department violated the separation of powers doctrine by usurping the Legislature‘s authority, we are satisfied that the Department did not “‘go beyond stated legislative policy and prescribe a remedial device not embraced by the policy‘” (Matter of Citizens For An Orderly Energy Policy v Cuomo, 78 NY2d 398, 410 [1991], quoting Matter of Broidrick v Lindsay, 39 NY2d 641, 645-646 [1976]). Rather, the Department‘s recognition of same-sex spouses falls squarely within the scope of the policy expressed in
Finally, the determination to recognize same-sex marriages is not invalid for the Department‘s failure to comply with the formal rule-making procedures of the
Lahtinen, J. (concurring). We respectfully concur in the result, but upon a much narrower ground.
Action taken by the state pertaining to its own employees is different from changing longstanding law that affects all of the state‘s citizens. The Legislature has vested the President of the Civil Service Commission with broad discretion in defining, for purposes of health insurance coverage for state employees, the terms spouse and dependent children (see
The Legislature is the governmental body best able to comprehensively and cogently address the issues in this emerging field (see generally Hernandez v Robles, 7 NY3d 338, 361, 366 [2006]).1 In deference to such body and in light of the potentially expansive implications of the majority‘s approach,2 we would decide this case narrowly, as this record permits (cf. Godfrey v Spano, 57 AD3d 941 [2008]).
Peters, J.P, and Kane, J., concur with Rose, J.; Lahtinen, J., concurs in a separate opinion in which Malone Jr., J., concurs.
Ordered that the order is affirmed, without costs.