Same-Sex Marriage Round-Up

Both of the below articles come from my good friend Professor Beyer over at the Wills, Trusts & Estates Prof Blog.

  • New York Recognizes Same-Sex Marriages From Other Jurisdictions

    On February 1, 2008, a New York appeals court that same-sex marriages that are valid in the jurisdiction where performed are entitled to recognition in New York. The case is Martinez v. County of Monroe (PDF).

    What is especially interesting in reviewing the case are the two grounds that New York law has to prevent marriages entered into in other stated from being valid in New York – both of which failed here. (1) is the “positive law” exception: This is where the marriage in question is specifically prohibited by a New York Statute. (2) is the “natural law exception”: This exception has “generally been limited to marriages involving polygamy or incest or marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” * * *, and that cannot be said here.” Natural Law (more routinely referred to as “God’s law” in the generic sense) is typically the justification given by proponents of a less secular view of these unions and, by this court’s ruling it appears that reliance on said justification just got taken out at the knees.

    The natural law exception also is not applicable. That exception has generally been limited to marriages involving polygamy or incest or marriages “offensive to the public sense of morality to a degree regarded generally with abhorrence” * * *, and that cannot be said here.

    Defendants nevertheless contend that recognition of plaintiff’s same-sex marriage is contrary to the public policy of New York, as articulated by the Court of Appeals in Hernandez v Robles * * *, and thus falls within an exception to the rule requiring recognition of valid foreign marriages. We reject that contention. 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 * * *, 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. As the Court of Appeals indicated in Hernandez, the place for the expression of the public policy of New York is in the Legislature, not the courts * * *. The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad. Until it does so, however, such marriages are entitled to recognition in New York.

  • Thus the court’s ruling makes a tacit plea to the legislature to resolve any lingering uncertainty in the hearts/minds of New Yorkers.

  • Oregon Same-Sex Partnership Law Takes Effect

    Oregon citizens may now register as domestic partners because an attack on the law failed.

    Its a little convoluted but, it appears that a group that wanted to a state law allowing same-sex couples to register as domestic partners put to a vote by referendum, fell 96 signatures short of the “55,179 needed to refer the law to the November 2008 ballot.”

    Same-sex couples will be able to file joint state tax returns, inherit property and make medical choices on each other’s behalf, along with a other benefits given to married Oregonians.

    Oregon becomes the ninth state to approve spousal rights in some form for same-sex couples, joining California, Connecticut, Hawaii, Maine, New Hampshire, New Jersey, Vermont and Washington. Massachusetts is the only state that allows same-sex couples to marry.

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