New York to back same-sex unions from elsewhere

Posted by Kendall Harmon

Governor David Paterson has directed all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions, like Massachusetts, California and Canada.

In a directive issued on May 14, the governor's legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere "should be afforded the same recognition as any other legally performed union."

The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.

In a videotaped message given to gay community leaders at a dinner on May 17, Paterson described the move as "a strong step toward marriage equality." And people on both sides of the issue said it moved the state closer to fully legalizing same-sex unions in this state.

Read it all.

Filed under: * Culture-WatchLaw & Legal IssuesMarriage & FamilySexuality--Civil Unions & Partnerships

23 Comments
Posted May 29, 2008 at 9:03 am [Printer Friendly] [Print w/ comments]



1. Br_er Rabbit wrote:

Uh-oh.
Is the slippery slope becoming an avalanche?
The Rabbit.

May 29, 9:19 am | [comment link]
2. Grandmother wrote:

# 1. not exactly, more like a rollar coaster.
Gloria in SC

May 29, 9:32 am | [comment link]
3. A Floridian wrote:

But, is it legal to subjugate the law of the state to another state’s law without changing it through proper channels?  This is like TEC churches bowing to the possibly temporary change of law re SSM in California without regard to the higher, more binding and longstanding laws in the Scripture, Canons, Articles, Tradition, etc.

May 29, 10:11 am | [comment link]
4. Cennydd wrote:

The states may recognize these so-called “marriages,” but it doesn’t mean that churches can be forced to permit or bless them.

May 29, 10:14 am | [comment link]
5. austin wrote:

It seems to me that the Anglosphere countries’ churches are going to be forced to follow European precendents and separate civil and religiousm marriages entirely.  There is no compelling reason for clergy to be marriage officers for an aggressively secular state, or for churches to recognize civil unions as sacramental.  Of course, undermining marriage will also undermine the state.  Perhaps the church’s witness will be clearer if they get out of the business before they are compelled to act against conscience.

May 29, 10:46 am | [comment link]
6. drummie wrote:

This is just another example of a gutless politician pandering to a small but noisy group.  The politicians seem to think it will make them look more “with it” when in fact they are signing many peoples death warrants.  However, we are the ones that vote these gutless idiots into office, so what can we do? THROW THE BUMS OUT OF OFFICE.

May 29, 12:07 pm | [comment link]
7. wamark wrote:

Wait til we get Snobama in the Oval Office…then you will see the avalanche on this issue and so many others.  Truthfully, our nation is unraveling and I don’t see it lasting another 100 years.  From our unprotected borders to our joyfully jumping into the sewer of total immorality and our casting aside of history and the wisdom of our traditions…it is rapidly becoming a lost cause.  Gratefully, God is planting the flag of the Christian future elsewhere in the world and in that there is great hope!  “He has lifted up the poor and the rich he has sent empty away.”

May 29, 12:20 pm | [comment link]
8. Jim the Puritan wrote:

#4:  Yes, in my state they could force clergy to perform gay marriages, if they want to do marriages at all.  (In my state a gay marriage push in the courts was stopped by a constitutional amendment, so that is not a live issue right now.)

The power to “marry” in our state is derived entirely from the civil government, not the church.  Our laws say that in order for a clergyperson to be granted a license to marry people, the officiant must agree to obey the state’s marriage laws.  If you don’t, you face civil and criminal prosecution.  So, yes, our state government can say, either you marry gays or you can’t marry anyone.  (This is already being debated in California as to whether state employees who have the power to perform marriages will be terminated if they refuse to perform gay marriages.)

A few years ago when there was a gay marriage challenge here (as I mentioned, eventually nullified by an amendment to the state constitution) and we as a law firm represented one of the major denominations opposing that, there was discussion about whether the denomination would have to stop performing marriages entirely if there was not some sort of religious exemption granted by the state, or would face prosecution for refusing to obey the law.

It is a myth that the churches could not be forced to perform gay marriages, at least if they want to perform marriages that are recognized by the State.  In the scenario I’ve described above, basically you would be in the position where the homosexual activists are now, where churches opposed to same-sex marriage could do “marriages” or “blessings” that would be recognized only by the church, but they would be considered invalid by the State.

May 29, 2:12 pm | [comment link]
9. Cennydd wrote:

Jim the Puritan, I believe that the concept of “separation of Church and State” still applies here, and since the U.S. Constitution broadly prohibits any American government body…..Federal or State…..from making any kind of provision for inserting state influence over any church’s practice of its clergy performing marriage ceremonies, (other than requiring Marriage Certificates for public record), no state can compel any minister, priest, or rabbi to perform a marriage ceremony.

If gays and lesbians want to get “married,” fine…...but let ‘em go to a judge or other public office-holder.  Civil marriages are legally sufficient, the last I heard.

May 29, 2:24 pm | [comment link]
10. Words Matter wrote:

it doesn’t mean that churches can be forced to permit or bless them

yet…

May 29, 2:27 pm | [comment link]
11. Jim the Puritan wrote:

#9, yes, that’s technically correct, but they can be told they cannot conduct any marriages recognized by the State if that is the position they take.

This is similar to the Boy Scouts being told that they have a constitutional right not to admit gays, but then have state and county governments say, ok, that is fine, but you can’t use any public property for your activities because of your position.  As far as I know, those bans are being upheld by the courts.  (E.g., the Berkeley Marina / Sea Scouts case).

It’s also similar to the pharmacists now being told that if they want to be pharmacists, they must prescribe abortifacent drugs.  Since being a pharmacist is a privilege granted by the state (like having the right to marry people is a privilege granted by the state), you can quit being a pharmacist if you don’t want to follow the requirements.  Some states have had religious conscience language put in their statutes, but increasingly states are saying that if you want to be a pharmacist, you have to play by our rules.

My point is that yes, the real target of same sex marriage litigation is ultimately the churches.  I know the California S.Ct. opinion has some language in it about clergy not being forced to conduct same-sex marriages against their will, but I admit I haven’t had time yet to read the opinion so I don’t know how they describe the justification for it.

May 29, 2:46 pm | [comment link]
12. Br. Michael wrote:

But I think that Jim’s point is well taken.  Christianity is under persecution through the language of non-discrimination.  Christians will be forced to choose between their Christianity and their profession.  We are going to suffer white martyerdom.  And we are going to have to separate, form our own schools and provide medical and other services for ourselves.

May 29, 3:07 pm | [comment link]
13. Br_er Rabbit wrote:

Actually, the power of the state over marriages begins and ends with its authorization of who may and may not sign the state-issued marriage license/certificate. The conduct and composition of the sacrament and rite of marriage is none of the state’s concern. We may well be coming upon the time where our ministers may have to disengage from the state’s increasingly ersatz “marriage” procedures.
The Rabbit.

May 29, 3:46 pm | [comment link]
14. clayton wrote:

I think it would only be good for the church to separate the legal aspect of marriage from the sacramental one.  If nothing else, it might chase the Pretty Pretty Princess weddings out of the church, if the process made it less convenient to throw on the veneer of Christianity for one’s Big Day. 

#7, Mr. Obama is a U.S. Senator and worthy of respect.  There is nothing clever in word-play with names, and it lowers the tone of discourse.

May 29, 3:58 pm | [comment link]
15. drummie wrote:

It is very easy to see the day coming when for different reasons, weddings are done as Charles and Camilla.  You go to the justice/judge for a civil marriage with legal ties, and then go to the church for its blessing and sacrmental marriage.  This way priests would not be compelled to “marry” anyone they were uncomfortable with, they just wouldn’t sign the state marriage certificate.  I am not advocating this, because the whole idea is repugnent to a Christian society, but we are quickly becoming Christians in a secular society.  It wouldn’t take much if any modificataion to the wedding ceremony in the Book of Common Prayer (1928) to accomodate this.

May 29, 4:40 pm | [comment link]
16. azusa wrote:

“#7, Mr. Obama is a U.S. Senator and worthy of respect.  There is nothing clever in word-play with names, and it lowers the tone of discourse. “
Sheesh! & they said the Obamessiah was thin-skinned!

May 29, 5:03 pm | [comment link]
17. Jim the Puritan wrote:

Applicable provisions from my state’s laws demonstrating that marriage is a privilege controlled by the state, not a religious right:

“§572-11 Marriage ceremony; license to solemnize.  It shall not be lawful for any person to perform the marriage ceremony within the State without first obtaining from the department of health a license to solemnize marriages.”

“§572-12 By whom solemnized.  A license to solemnize marriages may be issued to, and the marriage rite may be performed and solemnized by any minister, priest, or officer of any religious denomination or society who has been ordained or is authorized to solemnize marriages according to the usages of such denomination or society, or any religious society not having clergy but providing solemnization in accordance with the rules and customs of that society. . . upon presentation to such person or society of a license to marry, as prescribed by this chapter.”

“[§572-13.5]  Revocation or suspension of licenses to solemnize.  Any license to solemnize marriages issued pursuant to section 572-12 may be revoked or suspended by the department of health, if the holder of the license has failed to comply with the applicable provisions of this chapter or of the rules of the department of health.”

The power of the state over which persons churches can legally marry is demonstrated by this law, already on the books, which exempts churches from punishment by the state for conducting same-sex blessings:

“[§572-1.6]  Private solemnization not unlawful.  Nothing in this chapter shall be construed to render unlawful, or otherwise affirmatively punishable at law, the solemnization of same-sex relationships by religious organizations; provided that nothing in this section shall be construed to confer any of the benefits, burdens, or obligations of marriage under the laws of Hawaii.”

One would hope if same-sex marriage became the law here, the Legislature would similarly grant an exemption to religious institutions that declined to conduct same-sex marriages, but it is not certain.  The DOH could simply revoke the licenses of those institutions that refused to marry same-sex couples.

May 29, 5:04 pm | [comment link]
18. jamesw wrote:

Never make the mistake of thinking that the state won’t eventually compel ministers to perform same-sex marriages if they want to perform marriages, once same-sex marriage becomes legal and established.  It is like “at will” employement.  Under employment-at-will, an employer can fire any employee at any time.  But they CAN’T discriminate against certain types of protected classes.  For example, they couldn’t just fire all African-American employees.

So it will be with marriages.  Clergy will be free to choose not to marry couples PROVIDED that there is no pattern involved.  If you have a minister who never agrees to “marry” a same-sex couple, then you can bet your bottom dollar that that minister will be accused of unlawful discrimination eventually.

Do not think for a minute that freedom of religion or freedom of conscience will count for anything.  Just look up north to Canada and be disabused of the idea that our Worthy Opponents give a rodent’s behind for freedom of religion or conscience if it doesn’t further their agenda.

May 29, 5:49 pm | [comment link]
19. Larry Morse wrote:

How can the state enforce the power to marry if marriage is a spiritual matter? The state can enforce and regulate all civil unions precisely because they are civil. But marriage is not a civil union. They must, for 1st Amendments reasons, be separated. Larry

May 29, 7:52 pm | [comment link]
20. Bill Matz wrote:

There are actually two separate legal issues that are being conflated into one. First is the status of legal residents of MA, CA, and Ca who later move to NY. Second is the status of non-residents of those three locales who go to one of the three for a “quickie”, return home and later move to NY. The latter category, gay or straight, are invalid, as that locale never acquired jurisdiction (“presence + intent to remain indefinitely”); 48-hour residency statutes are legal nonsense, but, as a practical matter they are rarely challenged.

The first category is the one likely to force this matter to the US Supreme Court.

May 29, 8:23 pm | [comment link]
21. Larry Morse wrote:

Question: Given the significance of this question, why has it never gone to the Federal Supremes? Larry

May 30, 6:55 am | [comment link]
22. Faithful and Committed wrote:

#17 writes: One would hope if same-sex marriage became the law here, the Legislature would similarly grant an exemption to religious institutions that declined to conduct same-sex marriages, but it is not certain.  The DOH could simply revoke the licenses of those institutions that refused to marry same-sex couples.<>

Jim, I think you have made an excellent point, and I would suggest that you examine legislation proposed in the Maryland General Assembly this last term, The Religious Freedom and Civil Marriage Protection Act.  It specifically spelled out the exception you note. This proposed law (which did not get a vote in either the House or Senate committes that heard testimony upon it) draws a clear distinction between civil marriage and religious rites of marriage such as the sacrament of matrimony or other types of religious blessings enacted under the province of a religous organization.

This distinction does seem to be implicit in [§572-1.6], which you cite: <i> Private solemnization not unlawful.  Nothing in this chapter shall be construed to render unlawful, or otherwise affirmatively punishable at law, the solemnization of same-sex relationships by religious organizations; provided that nothing in this section shall be construed to confer any of the benefits, burdens, or obligations of marriage under the laws of Hawaii.

May 30, 8:07 am | [comment link]
23. Jim the Puritan wrote:

^#22—I too would like to think the Legislature would create an exemption, but I worry that government in general is taking an increasingly anti-Christian tone in its legislation.  One issue that we have been following is the requirement to force pharmacies and hospitals to prescribe “morning after” pills, which as you probably know, is considered a form of abortion by the Catholic Church.  This bill comes up every year in our Legislature (but hasn’t yet passed).  Several years ago, they were willing to put in a religious conscience clause that would excuse Catholic hospitals and clinics from prescribing such medicines, so long as they had a procedure for directing the patient to another institution that did (which I understand the local Diocese was willing to accept).  Recently, the Legislature has been refusing to put the religious conscience language in.  Fortunately, the bill died again in this year’s session, but it seems to me that government is increasingly saying, we don’t care about your religious beliefs, if you want the privilege of doing this or that in our state, you have to ignore your religious beliefs.

I understand that is already the situation in certain other states that have passed this kind of legislation, although I don’t know whether pharmacists have been prosecuted or stripped of their licenses if they refuse to comply.

May 30, 2:31 pm | [comment link]
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