While gay marriage still isn’t legal in New York, the Empire State will now give legal protection to homosexuals legally married under the laws of other states:
ALBANY — Gov. David A. Paterson has directed all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions, like Massachusetts, California and Canada.
In a directive issued on May 14, the governor’s legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere “should be afforded the same recognition as any other legally performed union.”
The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.
In a videotaped message given to gay community leaders at a dinner on May 17, Mr. Paterson described the move as “a strong step toward marriage equality.” And people on both sides of the issue said it moved the state closer to fully legalizing same-sex unions in this state.
“Very shortly, there will be hundreds and hundreds and hundreds, and probably thousands and thousands and thousands of gay people who have their marriages recognized by the state,” said Assemblyman Daniel O’Donnell, a Democrat who represents the Upper West Side and has pushed for legalization of gay unions.
Massachusetts and California are the only states that have legalized gay marriage, while others, including New Jersey and Vermont, allow civil unions. Forty-one states have laws limiting marriage as a union between a man and a woman.
Legal experts said Mr. Paterson’s decision would make New York the only state that did not itself allow gay marriage but fully recognized same-sex unions entered into elsewhere.
Of course, there are those who aren’t happy about it:
Groups that oppose gay marriage said the governor was essentially trying to circumvent the Legislature.
“It’s a perfect example of a governor overstepping his authority and sidestepping the democratic process,” said Brian Raum, senior legal counsel for the Alliance Defense Fund, a national organization opposed to same-sex marriage. “It’s an issue of public policy that should be decided by the voters.”
No, it’s a matter of complying with Article IV, Section 1 of the United States Constitution:
Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.
And it seems like a sensible enough move to me. Moreover, as James Joyner points out, it’s an indication that, slowly but surely, public attitudes are shifting on this issue:
The most populous state in the country will soon perform gay marriages and the polling evidence indicates that a majority of Californians are fine with that, meaning it’s unlikely to change through plebiscite or constitutional amendment. Now, the fourth most populous state and the home of the largest city in America will legitimate the act on the opposite coast. Objectively, this means gay marriage will be legal across the country sooner rather than later.
(…)
Further, the federal courts will use these precedents as a basis for finding a right to same-sex marriage in the Equal Protection clause, arguing that the cultural norms claim that had previously justified denying gays the right to marriage is no longer valid.
It took twenty years for the California Supreme Court’s decision striking down miscegenation laws in that state for the Supreme Court of the United States to follow that example in Loving v. Virginia. Something tells me this will happen a whole lot faster.
May 29th, 2008 at 1:52 pm
Doug, what is it with you and queer “marriage”? You cite the full faith and credit clause, knowing full well that Congress passed more than a decade ago the Defense of Marriage Act (DOMA), under the authority of the second sentence that you quote, which permits states to exempt same-sex marriage from such requirements. The ADF lawyer is precisely correct, and the NY Governor is trying to avoid the legislature.
And please spare us these pretensions to “shifting public attitudes.” The only “shift” evident is in judicial opinion, and you certainly know it. I find it difficult to believe that you can spout this stuff with a straight face. Support queer “marriage” if you want. But don’t pretend as though it’s “democracy” in action. You know damn well that it’s not.
May 29th, 2008 at 2:28 pm
James,
I just happen to believe individual liberty, that’s all. I don’t think it’s the business of the state if two people want to live together in a committed relationship, regardless of their gender. However, if the state provides benefits (i.e., tax breaks, preferred inheritances rules, laws mandating equal health coverage, etc.) to one set of people in such a relationship, then it is a violation of the Equal Protection Clause for them to deny those benefits to another class.
As I’ve said repeatedly over the past several weeks, there is only one solution to this debate. The state needs to get out of the marriage business entirely — which also means removing all the preferential benefits that married couples receive — and let people decide for themselves how to live their lives.
May 29th, 2008 at 3:14 pm
James,
One other point, I think that a fairly credible case can be made that the DOMA itself is unconstitutional.
What authority does Congress have to say which laws are subject to Article IV, Section 1 and which aren’t ?
May 29th, 2008 at 3:43 pm
Doug, my criticism wasn’t about what you believe, it’s about how you’re attempting to support it with these wild assertions which are demonstrably false.
As for your suggestion that it is somehow improper for the state to provide benefits: (a) we’re talking about an institution which predates human civilization and civil society; and (b) the government is certainly entitled to promote certain behaviors, and discourage others. Your argument on the Equal Protection Clause is notable mainly for its phoniness: unlike you, and the justices of the SJC, I don’t presume that its Framers (or John Adams, in the case of the SJC) sought to provide “equal protection” for perversion. In any case, they (perverts) do have “equal protection”: they are equally entitled to marry a member of the opposite sex.
To answer your question “Congress may by general Laws prescribe … the Effect thereof.” In short, unlike most of what it does these days, DOMA is clearly within Congress’ enumerated powers.
May 29th, 2008 at 3:48 pm
James,
First of all, as I am sure you know, the Framer didn’t write the 14th Amendment. But that’s a technicality.
What wild assertions do you refer to ? The wild assertion that people deserve to live their lives without the state telling them what to do and without someone motivated primarily by their religious beliefs telling them they are “sinners” ?
I call it freedom, I don’t know what you call it.
May 29th, 2008 at 4:21 pm
Hi guys..
I think I am one of the only two people in Georgia that voted against the ban on same sex marriage for just the reasons Doug states about government intrusion.
Originally, our government had no hand at all in marriage. It was a religious ceremony entered into by people who chose to do so. Only after our hairbrained elected officials began giving tax benefits to married couples did atheists stand up and demand to be allowed the same rights. Hence, the government began performing marriage ceremonies by Justices of the Peace.
I agree all benefits, penalties, all involvment of the government in personal relationships and committments is out of line in the first place. Who on earth died and made them God? Oh wait. They did.
More laughing hysterically……
May 29th, 2008 at 4:26 pm
Sally,
From what may well be one of the only two people in Virginia to vote against our own ban on same-sex marriage, I guess I say welcome to the club !
The funny thing about all of this is that there used to be a time, oh about 25 years ago, when conservatives actually talked about government intrusion into private relationships as if it was a bad thing.
May 30th, 2008 at 12:53 am
Well, of course, Doug, I’m referring to the framers of the 14th Amendment.
I won’t dispute your assertion that perverts are entitled to their own relationships. What they are NOT entitled to is their own language, or to hijack the language.
To what “wild assertions” am I referring? The “wild assertion” that “public attitudes are shifting on the issue.” Of course, the “evidence” cited is contrary to the expressed will of the public at the ballot box. I think that qualifies as a “wild assertion.” Similarly, your assertion about the constitutionality of DOMA is a “wild asertion” without any support in law. I can certainly understand the temptation to make the argument, given the courts’ penchant for reading into the Constitution “rights” that are nowhere to be found in the document, but reading out an enactment made pursuant to a specifically enumerated authority, but it’s got no rational basis.