Gay Marriage Recognition Appears Close
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An appeals court in Brooklyn appears poised to allow state officials to recognize same-sex marriages performed outside of New York State.
The issue is gaining significance now that California has become the second state to legalize gay marriage. Governor Paterson is in favor of recognizing such marriages, but the New York court system has not conclusively decided whether elected executives have the authority to set policy on the matter.
In oral arguments yesterday, a panel of four judges sharply questioned a lawyer from a Christian legal group that is seeking to forbid New York State from honoring same-sex marriages from elsewhere.
Noting that neither New York law nor the state constitution has any direct prohibitions against gay marriage, one judge questioned why New York’s general principle of recognizing out-of-state gay marriages wouldn’t apply.
“We have no positive declaration here in the state of New York — and we haven’t had for a hundred years — against same-sex marriage,” Judge Thomas Dickerson pointed out to the lawyer for the Christian legal group, Brian Raum.
In 2006, the state’s highest court, the Court of Appeals, ruled that there was no right under the state Constitution for same-sex couples to marry in the state, but left the issue of marriage recognition up to the Legislature. The Court of Appeals opinion in that case, Hernandez v. Robles, didn’t touch on the issue of marriage recognition.
Yesterday, the judges questioned whether that decision did limit the marriages that New York might recognize to unions between a man and a woman.
“Your analysis is impeccable, and your arguments are great,” Judge Robert Lifson told the lawyer representing a gay couple married in Canada, Susan Sommer. “But Hernandez seemed to state that marriage was confined to a man and a woman.”