By Lisa Keen
Keen News Service
It was published on the front page of the New York Times and seen on television news broadcasts everywhere. So New York Gov. David Paterson's directive that state agencies prepare to recognize same-sex marriages from other states must have been something big and new, right?
No. And yes.
What Paterson did, say gay legal experts, is declare that his administration would follow and enforce a law that already exists in the state and has for a long time. That law says that the state will recognize marriages licensed in other states, even if those marriages wouldn't be licensed in New York.
Legally, Paterson changed nothing.
But politically the governor has made it easier for gay couples in New York who travel to Canada and (soon) California to obtain marriage licenses, to have those licenses recognized by state agencies once they return home.
Prior to the governor's directive, some gay couples faced resistance by some state agencies, according to gay legal experts. Most notorious of these was a state community college in Rochester that tried to deny benefits to a lesbian employee and her spouse who had married in Canada. But the lesbian, Patricia Martinez, challenged the Monroe Community College's denial of benefits and won before a state appeals court last February. When the state supreme court refused to review the state's appeal, the victory was secured.
"The governor could have done nothing and it would have been more of a battle," said David Buckel, an attorney with Lambda Legal Defense and Education Fund based in New York City. "But he said, 'This is the law, make sure you're following it.'" By doing so Buckel said the governor is educating the state agencies and the public about the law. The result should be fewer lawsuits by couples seeking to secure their rights.
"Thousands of same-sex couples in New York have traveled to Canada and come home…and when they say 'I'm married,' it means something real."
According to the Times, Paterson started moving in this direction shortly after taking office in March, following Governor Eliot Spitzer's sudden resignation due to a prostitution scandal. The governor's legal counsel, David Nocenti, advised him that the administration should send out a memo to state agencies on how to comply with the ruling in the Martinez case. At Paterson's direction, Nocenti sent that memo out May 14 – one day before the California Supreme Court issued its ruling in support of same-sex marriage.
The memo advised agencies that in light of the Martinez case and others, state agencies "that do not afford comity or full faith and credit to same-sex marriages that are legally performed in other jurisdictions could be subject to liability. "
"In addition, extension of such recognition is consistent with State policy," said the memo.
Nocenti then instructed agencies that "it is now timely to conduct a review of your agency's policy statements and regulations, and those statutes whose construction is vested in your agency, to ensure that terms such as 'spouse,' 'husband' and 'wife' are construed in a manner that encompasses legal same-sex marriages, unless some other provision of law would bar your ability to do so. " He asked them to alert the state by June 30 of any issues that needed to be addressed to ensure compliance.
"This is not an end run around the legislature," said Paterson, in response to a question at a press conference about the directive. "If the legislature wanted to take an action it could. But the legislature has not provided for marriage equality here in New York. I'm an advocate for it, but that's not the reason I came to this conclusion. I am taking the same approach that this state always has with respect to out of state – I'm following the law as it always has existed."
Paterson spent some of the press conference explaining, in great detail and considerable eloquence, why domestic partnerships don't measure up to marriage.
Evan Wolfson, head of the national Freedom to Marry organization, agrees. He says the governor's directive means less "case by case wrangling" over how the existing law is to be enforced when it comes to same-sex couples.
"The governor is saying, 'We're not going to have a gay exception to that law,'" said Wolfson. "He's not making new law, but he's squarely putting the moral authority of the New York State government on the side the state assembly's already taken – on the side of gay couples. And as you can see from all the coverage around the country, it's a big deal politically and culturally."
