A Hopeful Precedent

BY PAUL SCHINDLER | With an appellate court ruling in hand, gay and lesbian couples statewide legally married in other jurisdictions can have their unions recognized by New York State – that is so long as another appellate court or the state's highest, the Court of Appeals, does not come to a different conclusion.

“This is a victory for families, it's a victory for fairness, and it's a victory for human rights,” said Donna Lieberman, executive director of the New York Civil Liberties Union, in a written statement. Jeffrey Wicks, the attorney who prevailed on behalf of a married lesbian couple against Monroe Community College in Rochester, was an NYCLU cooperating attorney.

According to Susan Sommer, a staff attorney at Lambda Legal, four other similar cases are making their way through New York courts, with the potential to confirm or challenge the Rochester result.

Rochester recognition ruling is binding, at least for now.

Duke Funderburke's 2006 challenge to the Long Island school system that denied spousal health coverage to his husband, whom he married in Canada in 2004 after more than 40 years together, was recently heard by the 2nd Appellate Department in Brooklyn. The retiree lost at trial, and since then the state Department of Civil Service, which provides a health plan for 800 local government bodies, ordered them all to recognize same-sex spouses, and Funderburke received a settlement as well. But Lambda is seeking to have the original bad ruling vacated or reversed.

The Alliance Defense Fund, a right-wing, anti-gay litigation group, has filed three lawsuits against same-sex marriage recognition-against the Westchester County executive, the state comptroller's office, and the state Civil Service Department. Both Westchester County and the comptroller's office won at the trial level. Briefs have been filed in the 2nd Department on Alliance's appeal of the Westchester ruling, but arguments have not yet been heard, and the group has also served notice that it will appeal the comptroller's victory in the 3rd Department in Albany.

Alliance has also filed suit upstate against the Civil Service change announced in the midst of the Funderburke case.

The state attorney general's office has filed amicus briefs or briefs on behalf of the affected state agencies in each case, arguing that same-sex marriages legally entered into elsewhere should be recognized by New York.

The principle affording recognition to out-of-state marriage, however, has not been held by New York appellate courts to offer spousal rights to civil union partners from other states.