DiNapoli Expands Scope of Policy

In announcing his office's victory in a lawsuit challenging the state public employee pension system's recognition of Canadian same-sex marriages, Democratic Comptroller Thomas P. DiNapoli stated that the New York State and Local Retirement System would now recognize legal gay or lesbian marriages from any out-of-state jurisdiction.

The Empire State Pride Agenda (ESPA), the state LGBT lobby group, in a statement lauding DiNapoli's move, noted that gay and lesbian public employees married in Massachusetts, Spain, South Africa, the Netherlands, and Belgium can now also have their spouses protected by the pension system.

Though Massachusetts does not currently allow same-sex marriage by New York couples, several hundred such unions performed before last year's high court ruling here denying a constitutional right to marry have been recognized. Deval Patrick, Massachusetts' new Democratic governor, has pledged to overturn the 1913 law used to bar out-of-state gay marriages, which was initially adopted to honor the interracial marriage bans in place in other states.

The primary benefits of being recognized as a spouse as opposed to a non-spousal partner, according to the comptroller's office, include an accidental death benefit awarded in certain situations and a cost-of-living adjustment to monthly pension payments.

Just as the 2004 decision by then Comptroller Alan Hevesi, a Democrat, to recognize Canadian gay marriages resulted from an inquiry from a gay state employee planning to marry his partner, DiNapoli's amendment to the policy was also a response to a pension fund member's request.

“The law is clear, and it's not just Canada,” DiNapoli said in a written statement, responding to Acting Albany County Supreme Court Justice Thomas J. McNamara's September 5 ruling. “New York State recognizes any marriage that has been conducted in accordance with the laws of other states and countries – and that includes same-sex marriages.”

In hailing McNamara's decision, Alan Van Capelle, ESPA's executive director said, “We want to thank former Comptroller Alan Hevesi for his initial leadership with this issue and also current Comptroller Tom DiNapoli for fighting to uphold the policy. We also thank Lambda Legal, who worked tirelessly on behalf of New York's LGBT families to defend the comptroller's decision.”

“This is one more court saying that respect for out-of-state marriages of same-sex couples is the law in New York,” said Susan Sommer, senior counsel at Lambda.

In November 2004, shortly after Hevesi took action on the state pension fund, Republican Mayor Michael Bloomberg announced that the city pension system, the third largest in the nation after those of California and New York State, would accord spousal status to the partners of same-sex marriages and civil unions legally performed in any jurisdiction.

– Paul Schindler