Thursday, November 19, 2009

Same-sex marriage updates: New York and Texas

New York's highest court today (download here) affirmed the rejection of a taxpayer challenger to directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. 
Map new york

The case may be most interesting to constitutional law professors for what it does not hold; the challengers abandoned almost all of their state constitutional law claims before the Court of Appeals.

In considering the one possible extant constitutional law claim, the Court of Appeals construed it as a statutory claim:

Plaintiffs' remaining cause of action, which alludes to the separation of powers doctrine, boils down to the claim that defendants acted "inconsistently with the Legislature's pronouncements on spousal benefits." Specifically, plaintiffs allege that defendants acted in violation of Civil Service Law §164.

The Court's opinion concludes,

We end, by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it "will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made."

UPDATE: NYLJ article here.

The issue of same-sex marriage is presently before the New York Legislature.

Meanwhile, in Texas,

{Texas update from Texas Lawyer here}

Texas map

Barbara Ann Radnofsky, a candidate for state Attorney General is reportedly arguing that a DOMA-like amendment to the Texas constitution actually bans all marriages.  The amendment, now in Article 1 §32, provides:

This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.


Radnofsky seems to be arguing that a plain meaning interpretation of the constitutional provision prohibits all marriages.

RR

http://lawprofessors.typepad.com/conlaw/2009/11/samesex-marriage-updates-new-york-and-texas.html

Current Affairs, Interpretation, Recent Cases, Separation of Powers, Sexual Orientation, Sexuality, State Constitutional Law | Permalink

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