As I have stated elsewhere, the issues regarding homosexual marriages changes faster than I can post. This post is obsolete, but I am keeping up because as a tribute the courage and fine work of Tom DiNapoli. Since homosexual marriages are valid and recognized in New York, all the laws regarding marriage and equitable distribution apply, to include pension rights.
A man I personally admire, New York State Comptroller, Thomas DiNapoli,recently recognized, for pension purposes, a Canadian same-sex marriage. He decided that the marriage was valid even though New York State’s highest court, the Court of Appeals, recently held that same-sex marriages are not permissible under the New York state constitution. Mr. DiNapoli recognized the same-sex union between two state workers who got married in Canada.
Mr.DiNapoli’s decision was taken to court, and Justice Thomas J. McNamara in the case of Godrey v. Hevesi, 5896-06, agreed with him. Judge McNamara noted that New York has long recognized the legality of marriages performed in other states and countries, even if such marriages could not be performed in New York.
While proponents of same-sex marriages may view this decision as a victory, it raises as many questions as it settles. Since the Court of Appeals decided Hernandez v. Robles 7 NY3d 338 (2006), the rule in New York has been that same-sex marriages are not permissible.
Judge McNamara’s decision does not necessarily provide a loophole. The problem lay in difference between laws passed by a sister state and laws passed by a foreign county.
The starting point is the United States Constitution’s Full Faith and Credit Clause. This constitutional provision states that one state must give full faith and credit to a judicial ruling of another state. (There are some exceptions, but it is beyond this scope of this posting to get into them.) Similarly, there is a rule known as “comity”. Under comity, a state judge can enforce a foreign county decision if the requirements of due process are met. Unlike the Full Faith and Credit Clause, a court is not required to recognize a foreign nation’s actions.
Now, that brings us back to Judge McNamara’s decision. Two other judges have refused to recognize same-sex unions performed in Canada. In the cases of Funderburk v. New York State and Martinez v. Monroe Community College,two other trial judges decided contrary to Judge McNamara. The Appellate Divisions have not spoken on this issue. But, ultimately, this issue will have to be decided by the New York Court of Appeals. Frankly, I don’t think anyone knows which way the court will decide on this issue.