Breaking News on Gay Marriage

Volume 5, Number 28 | July 13 – 19, 2006


Marriage Setbacks In Nassau County, New York and Connecticut

Breaking decisions in Nebraska and Tennessee also add to pressure on gay marriage movement

Editor’s Note: Supporters of banning gay marriage won two major court rulings Friday, with a federal appeals court reinstating Nebraska’s voter-approved ban on same-sex marriage and the Tennessee Supreme Court ruling that voters should have a say on the issue.

Associated Press report on Nebraska at:

On July 12, trial judges in two cases with significant implications on the push for same-sex marriage rights issued rulings that added to the steady stream of decisions out in the past week.

In New York, a Nassau County trial judge said that the state will not recognize same-sex marriages of New Yorkers that were contracted in Canada, contradicting the previously expressed views of several state officials.

In Connecticut, a New Haven trial judge said that the state civil union law, which went into effect last year, gives same-sex couples all the same legal rights that Connecticut gives to opposite-sex married couples, and this is enough to satisfy constitutional requirements.

Both rulings represent significant adverse developments on important questions that have not yet been definitely resolved in the gay marriage debate.

The New York case addressed a critical question-what degree of recognition, if any, will the state accord same-sex marriages entered into in other states and foreign countries. So far, couples who have been civilly united or married have had difficulty getting other jurisdictions anywhere in the U.S. to grant any legal significance to that fact. A federal court in Florida refused to order that state to recognize a same-sex marriage contracted in Massachusetts, and a federal bankruptcy court in Washington State refused to recognize a Canadian same-sex marriage. A Georgia court said that a Vermont civil union would not create a legal relationship between the parties in Georgia, for purposes of a restriction on child custody in a Georgia divorce decree. The impact of a Vermont civil union on parenting rights is under attack in an appeal pending in the Virginia courts.

Now a New York court has given the same negative answer to Duke Funderburke, a retired Uniondale public school teacher. Supreme Court Justice Edward W. McCarty III in Nassau County on Long Island heard oral arguments from Lambda Legal in May, then waited for the state Court of Appeals to rule on the pending marriage case, and now has relied on that ruling to grant summary judgment in favor of the state, which refuses to enroll Funderburke’s husband as a spouse under the benefit plan covering retired school teachers.

According to McCarty, now that the Court of Appeals has made clear that the marriage law does not authorize same-sex marriages and that the state Constitution does not require that same-sex couples be allowed to marry, the state’s public policy against same-sex marriage justifies refusing to order New York to treat Funderburke the same as any other married retired teacher regarding health benefits for his spouse.

This was not a necessary result, of course. New York is one of a handful of states that has not passed a Defense of Marriage Act declaring explicitly that same-sex marriage is contrary to the state’s public policy, or that same-sex marriages performed elsewhere will not be recognized in New York.

The lack of such a statute was important to the opinion issued by Attorney General Eliot Spitzer’s office in 2004 that New York would likely recognize same-sex marriages performed out-of-state. At the time, Spitzer, who successfully argued the state’s case against gay marriage in late May, stated that principles of comity well established in New York case law required the state to recognize any marriage legally entered into in another jurisdiction so long as it was not “abhorrent” to the public policy here.

State Comptroller Alan Hevesi, guided by the Spitzer opinion, announced that state benefit plans for which he is the trustee would recognize out-of-state marriages, and Mayor Michael R. Bloomberg made a similar decision concerning pension benefits for city workers.

The basis for Spitzer’s opinion was severely weakened, however, when the intermediate appellate division court in Brooklyn reversed a Nassau County ruling by Justice John Dunne holding that New York State would recognize a Vermont civil union in order to allow a surviving civil union partner to sue for wrongful death against the hospital where his partner died. The appellate division’s ruling, which the Court of Appeals refused to review, is binding on Justice McCarty, although it can be distinguished as involving a civil union rather than a marriage.

The Connecticut ruling was not the first in the U.S. to confront the question whether conferring civil union rights would provide enough equality for same-sex couples to satisfy a state constitution’s equality requirements.

After the Massachusetts Supreme Judicial Court issued its marriage ruling in November 2003, the state Senate there asked the court for an advisory opinion on whether enactment of a civil union law like that enacted in Vermont in 2000 after a ruling from that state’s Supreme Court would satisfy the constitutional equality obligation and make the marriage case moot. The SJC’s answer was a resounding “No,” pointing out that creating a separate status for same-sex couples was inherently unequal, even if the same state law rights were conferred.

Similarly, the state of California has argued that its Domestic Partnership Law, as amended in January 2005, affords rights to partners equivalent to those provided married couples and that the state Constitution should not be interpreted to require the next step of marriage, but San Francisco Superior Court Judge Richard Kramer rejected that argument in his March 2005 marriage decision. The appeal in that case was argued to an intermediate appeals court in San Francisco on July 10, and the presiding judge of that court asked why, if the state was willing to give same-sex couples the same rights as opposite-sex married couples, it was not willing to go the next step and let same-sex couples marry? What reasoned policy judgment required the distinction? The state’s response was basically respect for tradition, which has not usually been considered an adequate reason for a continuing denial of equal protection of the laws.

For Connecticut Superior Court Judge Patty Jenkins Pittman, however, the question was whether, in light of the civil union law, same-sex couples are now suffering unequal treatment of constitutional dimensions. Pittman acknowledges in her opinion that civil unions are a new and unfamiliar concept for many people, that registered civil union partners may have the irritating task of explaining their status to people who don’t fully understand, and may harbor some feelings of separateness or inferiority because they believe that civil unions are a status below marriage. But she rejects these as grounds for a constitutional claim.

“It would be the elevation of form over substance to hold unconstitutional Connecticut’s current statutory scheme based on the challenge of these plaintiffs,” she wrote, “who are entitled to the identical rights and identical treatment as opposite sex married persons in Connecticut.”

Although it is commonly understood among linguists, social scientists, and philosophers that the power to name something is quite significant, and attaching different names to things has important consequences for meaning and understanding, Pittman said that for purposes of a constitutional analysis, one must focus on legal rights, and if the state is providing the same legal rights, there is no basis for asserting an injury. In effect, the intangibles don’t count for purposes of a constitutional analysis, in her view.

The coincidence of the two rulings on the same day pointed up the one way in which Connecticut civil union partners are definitely, and tangibly, unequal to married couples in that state-their unions would not be recognized in New York, if Justice McCarty’s ruling is correct. Judge Pittman acknowledges that difference.

“This, alas, is a real injury,” she wrote. “The lack of legal recognition of same-sex civil unions in most other states, and the looming inequity embodied in the federal Defense of Marriage Act, create a host of ills and uncertainty for the plaintiffs in their attempt to avail themselves of federal and interstate rights and benefits.”

“But this is not caused by the nomenclature used in the Connecticut legislation,” she insisted. “Rather this is caused by the continuing refusal of most other jurisdictions to enact legislation that recognizes the basic civil rights so recently and comprehensively recognized by the Connecticut General Assembly… Called marriages or called civil unions, the plaintiffs are threatened by the same harm in jurisdictions outside Connecticut, a situation over which neither the Connecticut Legislature nor this court has any power.”

Technically, Pittman is correct on this. Civil unions are not portable-except perhaps to other states that have provided a similar legal status for same-sex couples-but neither would be same-sex marriages at this point, since 45 states have passed laws that directly or by implication would deny such recognition to marriages, just as McCarty’s ruling denies recognition to Funderburke’s Canadian marriage. But by denying same-sex couples in Connecticut the right to marry, Pittman is also most likely depriving them of a stronger basis to try to win such recognition through a challenge to state or federal Defense of Marriage Acts in particular cases.

The two July 12 rulings, taken together, are discouraging but not necessarily final. Trial court rulings have no precedential effect and are subject to appeal. Gay & Lesbian Advocates & Defenders, the public interest law firm representing the Connecticut plaintiffs, immediately announced that it would appeal the ruling. Lambda Legal announced that it would consult with Funderburke before proceeding, but an appeal seems likely there as well.

Stay tuned for further developments.