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May 30, 2008

NY Gay Marriage: An End Run Around the Legislature?

More fallout from Spitzer: N.Y. Governor Patterson has directed state agencies to recognize gay marriages from other jurisdictions. New York won't be solemnizing any gay marriages, but Patterson's memo requires all state agencies to recognize marriages which are legal in other jurisdictions. As a result, state agency regulations will be scrubbed of the gendered terms "husband and wife" (to be replaced by "spouse") and adjustments will be made to allow married gays the usual state benefits of marriage, like joint tax filing.

Opposition is stirring. I was struck by the no-way, no-how tenor of this complaint:

"The definition of marriage predates recorded history," said New York State Catholic Conference Executive Director Richard E. Barnes. "No single politician or court or legislature should attempt to redefine the very building block of our society in a way that alters its entire meaning and purpose."

In this case, the legislature has passed a law requiring that legal out-of-state marriages, for example from Massachusetts or Canada, must be recognized in New York. But state agencies have been slow to follow that law. Following a series of lower court cases which ruled that they must be recognized, Patterson circulated a memo instructing agencies to make the necessary adjustments to comply with his (and those lower courts') interpretation the law. The highest state court has not ruled on the question.

So what happens now? Opponents have few options. The legislature is not likely to pass a DOMA law and Patterson is unlikely to change his mind. There's no reason to believe that the courts will overturn it. So, to undo this, New York gay marriage opponents have little recourse except the ballot box. I think that's appropriate. It was the legislature, after all, who started this and has so far refused to consider DOMA legislation.


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posted by Gabriel Malor at 12:01 PM

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