NY Court Recognizes Lesbian "Marriage"

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NY Court Recognizes Lesbian "Marriage"

Special Report - March 10, 2008
A New York court has officially recognized a lesbian “marriage” as valid in the state, according to court documents. The same-sex couple obtained a marriage certificate in Canada four years ago. In April 2007, one of the women filed for divorce in the state of New York, prompting the state court system to make an official ruling on the status of the “marriage.” The lesbian couple, known to the public as Beth R. and Donna M., wanted to end their relationship, which includes two children from artificial insemination.

Justice Laura E. Drager wrote in the opinion for The Supreme Court, New York County, that “New York courts have long held that out-of-state marriages, if valid where entered will be respected in New York even if under New York law the marriage would be void.” The opinion lists as exceptions to this rule, marriages “prohibited by positive law of the state or a marriage that is abhorrent to New York public policy,” such as polygamy or incest.

The recognition of the same-sex marriage came as a ruling in a divorce case. In order to file for divorce, Donna M., the defendant, moved to dismiss the action for divorce, claiming the marriage was never valid under New York law, meaning there could be no action for divorce. The Drager opinion states that, “the law does not share [the Defendant’s] view.” The opinion defines marriage as “a status founded on contract and established by law,” and that “[i]t is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State,” citing Fearon v. Treanor, 292 NY 268, 272 (1936).

According to the New York Times, “New York has become a testing ground for gay marriage reciprocity because most other states have pre-empted it by passing Defense of Marriage Acts, which explicitly prohibit gay marriage.”

In response to the New York decision, Bill Brooks, president of the North Carolina Family Policy Council, commented, “By not passing a Defense of Marriage Act or a constitutional amendment defining marriage, New York left itself open to having the court redefine marriage. Although North Carolina has a Defense of Marriage Act, a single judge could rule our statute unconstitutional and redefine marriage to include homosexual unions. North Carolina needs a constitutional amendment to finalize the definition of marriage as the union of one man and one woman and to remove, from the legislature and the courts, the ability to redefine marriage.”

The New York decision is being appealed. In addition to their involvement in this case, the Alliance Defense Fund has also challenged the actions of several state officials granting state benefits to same-sex couples married out of New York.