Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, February 5, 2008

New York Recognizes Same-Sex Marriages From Other Jurisdictions

New_yorkOn February 1, 2008, a New York appeals court held in Martinez v. County of Monroe that same-sex marriages that are valid in the jursidiction where performed are entitled to recognition in New York.

Here are some excerpts from this important case:

For well over a century, New York has recognized marriages solemnized outside of New York unless they fall into two categories of exception: (1) marriage, the recognition of which is prohibited by the “positive law” of New York and (2) marriages involving incest orpolygamy, both of which fall within the prohibitions of “natural law.” * * * Thus, if a marriage is valid in the place where it was entered, “it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute.” * * * Under that “marriage-recognition” rule, New York has recognized a marriage between an uncle and his niece “by the half blood,” * * * common-law marriages valid under the laws of other states, * * * a marriage valid under the law of the Province of Ontario, Canada of a man and a woman both under the age of 18, * * * and a “proxy marriage” valid in the District of Columbia, * * * all of which would have been invalid if solemnized in New York. We conclude that plaintiff’s marriage does not fall within either of the two exceptions to the marriage-recognition rule. “[A]bsent any New York statute expressing clearly the Legislature’s intent to regulate within this State marriages of its domiciliaries solemnized abroad, there is no positive law in this jurisdiction” to prohibit recognition of a marriage that would have been invalid if solemnized in New York * * *. The Legislature has not enacted legislation to prohibit the recognition of same-sex marriages validly entered into outside of New York, and we thus conclude that the positive law exception to the general rule of foreign marriage recognition is not applicable in this case.  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.

See also Robert D. McFadden, State Court Recognizes Gay Marriages From Elsewhere, NY Times, Feb. 2, 2008.


Estate Planning - Generally, New Cases | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference New York Recognizes Same-Sex Marriages From Other Jurisdictions:


Post a comment