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New York Recognizes Gay Marriage

Gay Wedding Cake A wedding cake with statuettes of two men is seen in West Hollywood, California, May 15. California will hold its first gay marriages starting on June 17, state authorities told its public officials Wednesday, two weeks after the state Supreme Court quashed a ban on gay marriage in a historic ruling. (AFP/Gabriel Bouys) While gays still can’t marry in New York, marriages performed out-of-state will now be recognized when they come home.

Same-sex marriages legally performed elsewhere will be recognized in New York in response to a state court ruling this year, Gov. David Paterson’s spokeswoman said Wednesday. State agencies, including those governing insurance and health care, must immediately change policies and regulations to make sure “spouse,” “husband” and “wife” are clearly understood to include gay couples, according to a memo sent earlier this month from the governor’s counsel.

Gay marriage is not legal in New York, and the state’s highest court, the Court of Appeals, has said it can only be legalized by the Legislature. But the memo, based on a Feb. 1 New York Appellate Division court ruling, would recognize the marriages of New Yorkers who are legally wed elsewhere. The appellate judges determined that there is no legal impediment in New York to the recognition of a same-sex marriage. The state Legislature “may decide to prohibit the recognition of same-sex marriages solemnized abroad,” the ruling said. “Until it does so, however, such marriages are entitled to recognition in New York.”

Massachusetts is currently the only U.S. state that recognizes same-sex marriage, but its residency requirements would bar New Yorkers from marrying there. New York residents could instead flock to California, where gay couples will be able to wed beginning June 17 — unless that state’s Supreme Court decides to stay its own ruling. Upon their return home, in the eyes of the state, their unions would be no different from those of their heterosexual neighbors.

The most populous state in the country will soon perform gay marriages and the polling evidence indicates that a majority of Californians are fine with that, meaning it’s unlikely to change through plebiscite or constitutional amendment. Now, the third most populous state and the home of the largest city in America will legitimate the act on the opposite coast. Objectively, this means gay marriage will be legal across the country sooner rather than later.

New York gays will soon demand the right to marry without flying across the country. It’s hard to make an argument against them if the state is recognizing other marriages between same-sex couples.

Further, the federal courts will use these precedents as a basis for finding a right to same-sex marriage in the Equal Protection clause, arguing that the cultural norms claim that had previously justified denying gays the right to marriage is no longer valid.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. SoloD says:

    And yet somehow the country will survive.

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  2. G.A.Phillips says:

    Further, the federal courts will use these precedents as a basis for finding a right to same-sex marriage in the Equal Protection clause, arguing that the cultural norms claim that had previously justified denying gays the right to marriage is no longer valid.

    You sure it won’t be with the with the Bill of Rights code?

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  3. James Joyner says:

    You sure it won’t be with the with the Bill of Rights code?

    Not following…

    The Equal Protection Clause of the 14th Amendment is almost invariably the way the federal courts contravene state law.

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  4. DL says:

    Wasn’t this what McCain said wouldn’t happen when he stood against a constitutional amendment on the issue, or am I wrong?

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  5. James Joyner says:

    Wasn’t this what McCain said wouldn’t happen when he stood against a constitutional amendment on the issue, or am I wrong?

    For now, at least, you’re wrong. NY is recognizing gay marriages by the order of its elected governor, not judicial fiat. California is being forced into it by the state courts but doesn’t seem to mind.

    The problem will be if and when Alabama and Utah get forced into it by the federal courts.

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  6. Barry says:

    “The problem will be if and when Alabama and Utah get forced into it by the federal courts.”

    Well, Virginia got forced into it by the Supreme Court (Loving vs. Virginia), and the country did quite well.

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  7. joe says:

    There are a couple of interesting legal points. First off, to an earlier comment, the current governor of New York is not elected, remember he was appointed when Spitzer was caught in a sex sting. However, the legal interplay between the legislatures, governors and courts of both New York and California will be, and has been, fascinating. Criminal law and civil law will be turned upside down as gay marriage will change laws dealing with domestic disputes, property ownership, rape and other matters.

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  8. James Joyner says:

    Well, Virginia got forced into it by the Supreme Court (Loving vs. Virginia), and the country did quite well.

    The Constitution was crystal clear that blacks and whites should be treated without regard to color by the state. That was, after all, the raison detre of the 14th Amendment, even if it was very belatedly enforced. I’d say the right of people of the same sex to marry is in a different category altogether.

    That said, I think the culture may get out ahead of the courts on this one.

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  9. […] move to me. Moreover, as James Joyner points out, it’s an indication that, slowly but surely, public attitudes are shifting on this issue: The most populous state in the country will soon perform gay marriages and the polling evidence […]

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  10. G.A.Phillips says:

    bill of rites code,constitution code,bible code…picked the wrong one, sorry bro.

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  11. Our Paul says:

    Here in Monroe County, of New York State, a same sex couple married in Canada sued the county for denying certain employment benefits. Based on the Feb 1 ruling by the Appellate Court, the court granted them the benefits.

    The Elected County Manager (Maggie Brooks) has taken this ruling to the final level, the Court of Appeals, in an attempt to overturn this judgment. Gov. David Paterson’s directives are actually under legal challenge.

    Sigh, is there any need for me to point out what political party controls Monroe County?

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  12. RW Rogers says:

    James, what poll of Californians re: gay marriage are you citing? The most recent poll I’ve seen on this issue, by the Los Angeles Times, showed Californians rejecting gay marriage by a 19-point margin, 54-35%.

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  13. James Joyner says:

    James, what poll of Californians re: gay marriage are you citing? The most recent poll I’ve seen on this issue, by the Los Angeles Times, showed Californians rejecting gay marriage by a 19-point margin, 54-35%.

    Yesterday’s Field Poll:

    More California voters now support allowing same-sex marriage than oppose it, according to a new poll released Wednesday.

    The results mark the first time in over three decades of polling by the Field Poll that more California voters have approved of extending marriage to gay couples than have disapproved, said Field Poll director Mark DiCamillo. The survey of 1,052 registered voters was conducted over the phone.

    “I would say this is a historic turning point or milestone,” DiCamillo said. “We have speculated in the past there would be some time in the future when a majority would support same-sex marriage. Well, the lines have crossed.”

    The poll found that 51 percent of respondents backed legalizing same-sex marriage and 42 percent opposed it, DiCamillo said.

    In 2006, when participants were asked, “Do you approve or disapprove of California allowing homosexuals to marry members of their own sex?” 44 percent said they approved and 50 percent objected. In 1977, the first year Field posted the question to voters, 28 percent approved and 59 percent were opposed.

    The poll was conducted from May 17 to May 26 in the days after the California Supreme Court handed down its historic ruling legalizing same-sex marriage in the nation’s most populous state. A smaller percentage of respondants_ 48 percent — said they agreed with the court’s decision and 46 percent disagreed.

    One poll, to be sure. But I’m rather confident that there’s no enough opposition to amend the California constitution at the ballot box.

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  14. Our Paul says:

    I think you guys are mixing apple and oranges. The NY state constitution has a clause recognizing valid marriages of other states and foreign countries. The highest court has rendered the opinion that marriage between same sex couples, if legally performed in another state or nation have to be recognized as binding, with all its privileges and responsibilities, etc…

    The state legislature cannot “pass a law” invalidating the states constitution. There are only two possible solutions: (1) A constitutional Amendment, or (2) change the composition of the court.

    Simplify: We, the great unwashed of the Empire State, could ban same sex marriage, and thereby prevent the granting of privileges and responsibilities that are granted to heterosexual couples. That has been done, it is on the books. We cannot take away those privileges if the marriage was validly performed in another country or state.

    I love it, strict constructionism at its best!!!

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