Gay Rites Ruling In Jersey Could Impact New York

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The ruling yesterday by the top court in New Jersey that same-sex couples are entitled to the same benefits as married couples will bring to the forefront the question of how courts in New York will treat marriages and civil unions performed in neighboring states and Canada.

The New Jersey decision follows a ruling in July by New York’s highest court that found that New York’s Constitution does not give same-sex couples the right to marry. The New York court did not indicate if its decision would affect whether New York recognizes the marriages or civil unions performed elsewhere. With the New Jersey ruling, many legal observers say the Legislature or the courts must settle recent discrepancies in how the state honors same-sex marriages and unions performed elsewhere.

“The next question is what will happen when couples from states like New York visit New Jersey and enter into same-sex marriage or civil unions and then return to their home state,” said Kenneth Caruso, a lawyer who represented this year the New York State Department of Civil Service when it opposed recognition of a gay marriage performed in Canada. “Whether that status will accompany them when they return home is one of the most significant questions in this kind of litigation.”

The decision yesterday by the New Jersey Supreme Court ordered the state Legislature to amend the marriage statute to allow same-sex couples to marry or to write a new law allowing civil unions of some sort. The Legislature was given 180 days to comply.

The seven judges on the court unanimously ruled that denying gay couples the same rights heterosexual couples received through marriage violated the guarantee of equal protection found in New Jersey’s Constitution. But a majority — four judges — found same-sex couples did not have a fundamental due process right to get married. Redefining marriage, the majority found, was a decision for the Legislature to make.

“The issue is not about the transformation of the traditional definition of marriage, but about the unequal dispensation of benefits and privileges to one of two similarly situated classes of people,” Justice Barry Albin wrote in a the majority opinion, which was signed by three other judges.

The remaining three judges on the court went further, ruling that same-sex couples had a fundamental due process right to marry. The minority issued a dissent saying the seven same-sex couples who brought the suit were entitled to the word “marriage” itself.

“We must not underestimate the power of language,” Chief Justice Deborah Poritz, who retired from the court yesterday, wrote in the dissent. Without an affirmative finding that same-sex couples could marry, Chief Justice Portiz wrote: “Ultimately, the message is that what same-sex couples have is not as important or as significant as ‘real’ marriage, that such lesser relationships cannot have the name of marriage.”

Whether gay couples in New York, only recently rebuffed by New York’s highest court, planned to take advantage of New Jersey’s ruling in the coming months was not immediately clear. Nor was the question of how New York courts would honor such unions.

It is not the first time New York has faced the issue. Connecticut and Vermont already perform civil unions for gay couples. Massachusetts is currently the only state to allows gay couples to marry, although Massachusetts state law prevents same-sex couples from New York from marrying. New Jersey does not have such a law, called a “reverse evasion law,” which would prevent it from marrying out-of-state couples whose home state does not permit them to marry, three legal observers said.

New York has long had a policy of recognizing marriages lawfully performed in other states even if the type of marriage was not permitted under New York marriage law. In 2004, Attorney General Eliot Spitzer issued an opinion finding just that.

It is the stance Mayor Bloomberg backed yesterday when asked about the New Jersey case.

“New York has a policy of accepting bona fide marriages from other jurisdictions, I believe,” Mr. Bloomberg told reporters in Chicago, where he was meeting with several other mayors.

Some lawyers involved in gay marriage litigation say two recent New York court decisions signal that judges have been hostile to such comity when it comes to recognizing the marriage or civil unions other states allow same-sex couples to enter into.

Less than a week after New York’s highest court handed down its decision in July, a state Supreme Court judge in Mineola, Edward McCarthy, cited that decision and ruled that the Canadian marriage of two men was not recognized by the state.

Last year, a mid-level appellate court in Brooklyn did not recognize the civil union that two men had entered into in Vermont in 2000.

Neither decision has yet come before the New York’s highest court, the Court of Appeals. So, with two recent court decisions contradicting Mr. Spitzer’s 2004 opinion, some legal observers do not know what to expect.

“We’re still not sure of the final answer,” Jon Davison, the national legal director of Lambda Legal, which brought both the New York and New Jersey cases, said yesterday. People who live in New York and are married or have civil unions elsewhere “are still going to face a time period of uncertainty,” Mr. Davidson said.

A former attorney general of New Jersey, Peter Harvey, told The New York Sun to expect the question to be at the center of litigation across the country.

“I think the highest courts of the various states will have to resolve the issue one way or another,” Mr. Harvey said.

A 1996 federal law, the Defense of Marriage Act, allows states to decide not to recognize gay marriages performed in other states. The law creates an unusual exception to the clause in the Constitution that says states must give “full faith and credit” to the “public acts, records, and judicial proceedings” of other states.

Legal observers say that how New York’s courts will decide to honor gay couples whose unions occur in New Jersey could depend on several issues.

One is whether New Jersey’s Legislature grants gay couples marriage or civil unions.

A New York lawyer who was on the legal team representing gay plaintiffs in New York’s gay marriage case, Jeffrey Trachtman, said New York courts might be more likely to honor marriages than civil unions performed in other states.

“Because it’s not expressly defined by marriage, how civil unions are treated state by state is a more novel question,” Mr. Trachtman said.

The question of New York’s recognition of same-sex unions becomes moot should Albany lawmakers legalize gay marriage. Mr. Harvey, the former attorney general, also said that the New Jersey Legislature could also decide to restrict gay marriage or civil union to residents of New Jersey.


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