If New York’s Legislators Won’t OK Gay Marriage, How About New York’s Courts?

Two cases might do what New York State’s lawmakers won’t: give courts the chance to provide a thumbs up to gay marriage. Unfortunately, there’s a big asterisk.

While New York’s Court of Appeals ruled three years ago (in Hernandez v. Robles) that gays don’t have a constitutional right to marriage, the Court’s new session, beginning today, will give it a chance to say OK to same-sex unions that were performed elsewhere where they’re legal. Yes, this is the same thing Gov. David Paterson last year tried to do via executive order. NYT:

In one case [Lewis v. New York State Department of Civil Service], the opponents are challenging a 2007 policy, adopted by the State Department of Civil Service, that extended health insurance benefits to the same-sex partners of state and local government employees who married out of state.

In the other case [Godfrey v. Spano], the opponents are seeking to overturn a similar administrative order, issued in 2006 by Andrew J. Spano, the Westchester County executive, directing county officials to recognize same-sex unions performed elsewhere.

And no surprise here:

The opponents are represented by the Alliance Defense Fund [Ed: yes, these guys], based in Scottsdale, Ariz., which argues that both orders were “illegal, unconstitutional, and resulted in the unlawful disbursement of public funds,” according to a summary of the cases provided by the Court of Appeals.

For the plaintiffs?

Susan L. Sommer, an attorney for Lambda Legal, said Thursday she would argue along the lines of what the majority in the Third Department in Lewis had determined.

“I expect to talk about the fact that there is a two-centuries-old, well-settled rule in New York, the marriage recognition rule, that provides that marriages entered out-of-state, unless narrow exceptions are applied that the state Legislature has expressly imposed, are to be recognized,” said Sommer, who will represent intervenor couples in both Godfrey and Lewis. “We see there is absolutely no ban on recognition of out-of-state marriages to same-sex couples.”

Sommer said she had no estimate of how many same-sex couples who were married in other jurisdictions live in New York, but said the number is now in the “thousands.”

Sommer’s co-counsel, Jeffrey Trachtman of Kramer Levin Naftalis & Frankel, said he believes another affirmance of the validity of a same-sex marriage, even if it was solemnized in a jurisdiction outside of New York, will increase the pressure on the Legislature to approve a bill legalizing gay marriage.

And isn’t this interesting:

Two of the judges who ruled in Hernandez are no longer on the Court of Appeals.

Former Chief Judge Judith S. Kaye, who dissented, stepped down from the Court at the end of 2008 due to mandatory retirement rules. She has been replaced by Chief Judge Jonathan Lippman.

Former Judge George Bundy Smith, who was in the majority in the ruling, was replaced in 2006 by Judge Eugene F. Pigott Jr.

Another ex-judge, Albert Rosenblatt, recused himself from the 2006 ruling.

So who’s side is the state on?

Assistant Solicitor General Sasha Samberg-Champion will argue in favor of recognizing the same-sex marriages on behalf of Attorney General Andrew M. Cuomo and Comptroller Thomas DiNapoli.

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