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Marriage Equality: A Historic Victory for LGBT Families in New York

August 18, 2011

Author:   Carrie Gallagher 1

On June 24, 2011, New York became the sixth state to legalize same-sex marriage. Governor Cuomo immediately signed this historic legislation into law just shy of midnight making the new law effective on Sunday July 24. 2  As stated by the New York Civil Liberties Union’s Executive Director, Donna Lieberman, “this historic, bipartisan vote is a victory for families and a victory for human rights. Now, all loving couples in [New York] can enjoy the dignity, respect and legal rights that marriage provides.” 3  Excitement after the vote was palpable throughout the country as advocates and allies joyously celebrated its passage. 

The 2010 U.S. Census recently reported 65,303 same-sex households in New York.  This number represents an increase from 1.3% of the population in 2008 to 1.8% of the population in 2010.4  Because of New York’s large general population, approximately 10% of the American people will now live in a state where same-sex marriage is legal.

As the effective date quickly approached, communities around the state prepared for an upsurge in applications for marriage licenses. The New York State Department of Health issued an FAQ on July 13, 2011 detailing how it would implement the new law.5  Some clerk’s offices extended their weekly hours to address the expected increase.  To both celebrate the momentous day the law went into effect, as well as providing gay, lesbian, and transgender citizens with the most rapid access to long-denied marriage rights, several city and town clerk offices took the unusual step of opening their doors on Sunday the 24th. 6 

Despite this assistance, New York law currently imposes an antiquated requirement 7 that those holding marriage licenses are subject to a 24-hour waiting period before they can marry their intended partner.  To address this concern, volunteer judges throughout the state were mobilizing to hear and determine petitions on Sunday the 24th waiving the waiting period. 8  Where the waiting period is waived for cause, those same judges also have the authority to officiate over the wedding. 

Equal Marriage and Equal Treatment

The Marriage Equality Act represents a legal milestone for New York families.  While it allows same-sex couples to marry regardless of their genders, significantly, it also directs that, without distinction, they shall be treated equally to opposite-sex married couples in all respects under the law. 9  For the past few years under comity principles, New York has recognized valid same-sex marriages celebrated in other US or foreign jurisdictions for various, limited purposes.10  However, recognition of these legal relationships has been piecemeal.  As a result, it is likely that those already married in other jurisdictions should no longer face significant legal obstacles having their existing legal status comprehensively recognized in this state. Furthermore, couples made up of one or two transgender partners may also marry without concern that their marital status will be considered void or invalid in New York.11

Because marital status is intertwined with so many areas of law, this law represents a definite sea change.  Prior to the Marriage Equality Act, most unmarried same-sex couples in New York were deprived of the many rights and protections that accompany the legal status.12  In one fell swoop upon its effective date, the new law will allow same-sex married couples to enjoy over 1,300 New York-based rights and obligations attendant to marriage including:

  • parentage of children born during the marriage
  • spousal support
  • inheritance and other estate law-based rights and protections
  • emergency medical decision-making for their partner
  • spousal privilege
  • access to certain employee benefits
  • receipt of workers’ compensation survivors benefits, and much more.13


Religious Entities

Along with the many new protections and obligations that flow from marriage, the law also contains exemptions for religious entities and other religiously affiliated organizations.  Specifically, the law states, “no religious entity, benevolent organization or not-for-profit corporation that is operated, supervised or controlled by a religious entity, or its employees, can be required to perform marriage ceremonies or provide its facilities for marriage ceremonies, consistent with its religious principles.” 14  Accordingly, religious and benevolent organizations may decline to both solemnize marriage ceremonies for couples and provide facilities for their celebration without liability. 15  These specific religious exemptions do not extend to either governmental agencies or actors or to other public accommodations.  While theses exemptions do limit solemnization and celebration choices for marrying couples, they are not novel.  For example, New Hampshire 16 included similar exceptions in passing their same-sex marriage law, as did Vermont. 17  In addition to the protections for religious organizations, a severability clause was added, which says that if any of the religious exemptions are invalidated by a court, the entire marriage law would fall. 18

At this point, the full legal and social implications of the Marriage Equality Act are just beginning to be understood.  For example, some companies are beginning to phase out or deny employee benefits to same-sex couples in domestic partnerships who choose not to get married. 19  While such a response by employers is appropriate, there are legitimate legal reasons why same-sex couples do not marry, even in states where they have such an option.  Certainly, the discriminatory spectre of the Defense of Marriage Act (DOMA) continues to complicate and bifurcate recognition of these marriages under state and federal law. A 2004 federal GAO report determined that, as of December 31, 2003, there were 1,138 federal statutory provisions classified to the United States Code in which marital status was a factor in determining or receiving benefits, rights, and privileges. 20  Even though subject to fierce legal attacks throughout the country, DOMA is still on the books and being enforced in the variety of contexts where marital status is an issue including, but not limited to, access to federal public benefits, consumer law, and adjustment of one’s immigration status.

Empire Justice Center will continue to monitor, analyze, and report on the implementation of marriage equality and relationship recognition in the variety of substantive poverty law areas in which we work.  Stay tuned. 




Endnotes

 1   Carrie Gallagher, a law student at Syracuse Law School, is an intern with Empire Justice Center Rochester office.
 2   L.2011, ch. 95
 3   New York Civil Liberties Union, NYCLU Applauds Senate’s Historic Vote on Marriage,  June 24, 2011(available at: http://www.nyclu.org/news/nyclu-applauds-senate’s-historic-vote-marriage)
 4   Available at:  http://www3.law.ucla.edu/williamsinstitute/pdf/Census2010Snapshot_NewYork.pdf
 5   Available at: http://www.health.state.ny.us/vital_records/marriage_equality_frequently_asked_questions.htm
 6   Brian Sharp, City-Brighton Clerks Open Sunday For Same-Sex Marriage Licenses, Democrat & Chronicle, July 18, 2011(Available at: http://www.democratandchronicle.com/article/20110718/NEWS01/107180320/-1/7daysarchives/City-Brighton-clerks-open-Sunday-same-sex-marriage-licenses)
 7   N.Y. Dom. Rel. Law §13-b
 8   William Glaberson, Judges Signing Up for Sunday Duty at Gay Weddings, New York Times, July 14, 2011 (available at: http://www.nytimes.com/2011/07/15/nyregion/judges-signing-up-for-sunday-duty-at-gay-weddings.html?ref=judges).  Notably, judges have the authority to circumvent the waiting period for cause at any time, not simply on July 24.  Pursuant to DOH policy, already married couples seeking only to renew their vows are not subject to the waiting period.  See: http://www.health.ny.gov/vital_records/marriage_equality_frequently_asked_questions.htm.
 9   N.Y. Dom. Rel. Law §10-a
 10  See, for example, Martinez v. Monroe Community College, 50 A.D.3d 189 (4th Dept. 2008), lv. to appeal denied 10 N.Y.3d 856 (2008)]; Estate of H. Kenneth Ranftle, 81 A.D.3d 566 (1st Dept. 2011).
 11   See, for example, NY cases in which marriages involving a transgender partner were found to be void.  Anonymous v. Anonymous, 67 Misc. 2d 982 (N.Y. Misc. 1971); B. v. B., 78 Misc. 2d 112 (1974); K.B. v. J.R., 26 Misc.3d 465 (2009).
 12  New York Civil Liberties Union, Why Marriage Fairness Matters (2011) (available at: http://www.nyclu.org/publications/why-marriage-fairness-matters-2011)
 13   For a complete iteration of the NY laws intersecting with marriage, see 1324 Reasons for Marriage Equality in New York State, Empire State Pride Agenda Foundation and New York City Bar Association (available at: http://www.prideagenda.org/Portals/0/1324%20Rights%20and%20Responsibilities_FINAL.pdf)
 14   NY Dom. Rel. Law § 10-b
 15   The Act did not amend (and, in fact, specifically provided for) the existing exemptions under New York law which allow religious and religiously-operated charitable or educational organizations to limit employment or admission to, or give preference to, persons of the same religion or to promote the religious principles for which such entity  is established or maintained.”
 16   N.H. Rev. Stat. Ann. § 457:37
 17   9 Vt. Stat. Ann  §4502(l)
 18   L.2011, ch. 96
 19   Tara Seigel Bernard, As Same-Sex Marriage Becomes Legal, Some Choices May Be Lost, New York Times, July 8, 2011(available at:  http://www.nytimes.com/2011/07/09/business/some-companies-want-gays-to-wed-to-get-health-benefits.html?scp=3&sq=same%20sex%20marriage&st=cse
 20   Government Accounting Office, Defense of Marriage Act: Update to Prior Report, January 24, 2011 (GAO04-353R)(available at: http://www.gao.gov/new.items/d04353r.pdf)

 





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