New York must recognize out-of-state same-sex marriages

In 2006, the New York Court of Appeals held that the Equal Protection Clause of the State Constitution does not require the State to sanction same-sex marriages. But that case, Hernandez v. Robles, 7 N.Y.3d 338 (2006), is not the end of the story. On February 1, 2008, the Appellate Division in Rochester, N.Y., ruled that, notwithstanding Hernandez, the State must recognize same-sex marriages that are valid elsewhere.

The case is Martinez v. County of Monroe. The plaintiff works for a county in upstate New York, which would not grant her the benefits normally afforded to people in traditional opposite sex marriages. The plaintiff was married in Ontario, Canada, which officiates same-sex marriages. Martinez claimed that the New York Human Rights Law, which makes it illegal to discriminate against employees on the basis of sexual orientation. The question is, if New York does not allow for these unions, must her employer recognize her same-sex marriage?

The answer is yes. The Appellate Division, Fourth Department, noted that New York must recognize out-of-state marriages unless (1) State law prohibits that marriage or (2) the marriage involves incest or polygamy. Of course, Martinez's marriage was not incest or polygamy, so the question is whether the first exception applies. It does not. The State Legislature has not enacted any laws prohibiting recognition of same-sex marriages. While the County in this case argued that Hernandez v. Robles (rejecting same-sex marriage in New York) sets forth public policy against recognizing a Canadian same-sex marriage, the Appellate Division thinks otherwise:

Hernandez does not articulate the public policy for which it is cited by defendants, but instead holds merely that the New York State Constitution does not compel recognition of same-sex marriages solemnized in New York. The Court of Appeals noted that the Legislature may enact legislation recognizing same-sex marriages and, in our view, the Court of Appeals thereby indicated that the recognition of plaintiff’s marriage is not against the public policy of New York. It is also worth noting that, unlike the overwhelming majority of states, New York has not chosen, pursuant to the federal Defense of Marriage Act (28 USC § 1738C), to enact legislation denying full faith and credit to same-sex marriages validly solemnized in another state. Thus, we conclude that plaintiff’s marriage to Golden, valid in the Province of Ontario, Canada, is entitled to recognition in New York in the absence of express legislation to the contrary.