A Service of Rainbow Law

NY Court of Appeals May Duck Same-Sex Marriage Recognition Issue

Written by Arthur S. Leonard Friday, 16 October 2009 06:13

The New York Court of Appeals heard oral arguments in two cases that might provide a vehicle for the court to weigh in on the question whether same-sex couples who marry elsewhere are entitled to have their marriages recognized in New York. But judging by the questioning from the bench, it appeared that many members of the court were looking for a way to give a narrow ruling that would not necessarily settle that question...

pressingly aware that the State Senate might obviate their need to make a controversial ruling by voting for the marriage equality bill before the end of the year.

 

The two cases before the court were Godfrey v. Spano, in which the Appellate Division for the 2^nd Department rejected a constitutional challenge to an executive order by the Westchester County Executive, commanding agencies under his direction to afford same-sex marriages the maximum recognition available under the law, and Lewis v. Department of Civil Service, in which the Appellate Division for the 3^rd Department rejected a constitutional challenge to a decision by the Department to recognize same-sex marriages for purposes of public employee benefits programs in the state.

 

The 2^nd Department ruling was unanimous in finding that because the Spano EO had merely instructed county officials to follow the law, it was not subject to challenge. The 3^rd Department ruling was expressed in divergent opinions, three judges holding that same-sex marriages are entitled to recognition as a matter of the state’s well-established marriage recognition principles, while two judges held that it was within the discretion of the Department to decide that same-sex couples who had married outside the state met the qualifications to be treated like dependents for purposes of interpreting the employee benefits rules. The minority opinion said it was not necessary or desirable for the court to take on the broader question of marriage recognition in this case. The 3^rd Department majority adopted the reasoning of the Appellate Divison for the 4^th Department in a 2008 case requiring Monroe Community College to recognize the Canadian same-sex marriage of one of its employees.

 

Both cases had been brought by the Alliance Defense Fund, an Arizona-based Christian advocacy outfit that specializes in attacking any laws or government actions that actualize the human rights of gay people. ADF found New York tax-payers willing to be named plaintiffs in the lawsuit, claiming that Spano and the Civil Service Department had exceeded their constitutional powers by taking these actions that could result in the expenditure of tax-payer funds. A New York statute authorizes tax-payers to file legal challenges to unconstitutional expenditures by the government.

 

ADF attorney Brian Raum argued to overturn both Appellate Division rulings. His main line of argument was to contend that same-sex marriages should be treated the same as polygamous and incestuous marriages, the two categories of foreign marriages that are treated by New York courts as exceptions to the general rule that marriages lawful where celebrated will be recognized in New York. He conceded that if the Civil Service Department had extended benefits without formally recognizing the same-sex marriages as "marriages" for purposes of New York law, his clients would have no objection, which led Chief Justice Jonathan Lippman to suggest that the challenge in that case was just about semantics. As to the Spano order, Raum worked hard to try to convince the court that it was not just a symbolic statement of support for same-sex couples by the county executive, but he could not come up with any example of where it had actually resulted in any taxpayer funds being expended.

 

Three attorneys argued to uphold the Appellate Division rulings. Assistant Solicitor General Sasha Samberg-Champion from the Attorney General’s Office appeared to defend the Civil Service Department, Westchester County Attorney Mary Lynn Nicolas- Brewster argued in support of Spano’s EO, and Lambda Legal’s Susan Sommer appeared on behalf of some same-sex married couples who had intervened in the case to protect their employee benefits entitlements.

 

Samberg-Champion led off and quickly conceded that his client could "live with" the result if the court decided the case based on the concurring opinion, thus avoiding having to decide the marriage recognition issue. He was pushed on this by more than one of the judges, as they probed to determine whether there was a way they could resolve this case without having to decide that ultimate, politically-charged question. (The easiest way, of course, would have been to deny leave to appeal, given the lack of dissonance between the Appellate Divisions on marriage recognition up to this point, and the possibility that pending legislation would render the controversy moot.) Judge Victoria Graffeo expressed concern that a broad marriage recognition ruling would go beyond public employees and also affect private businesses throughout the state.

 

The most active questioners, Chief Judge Lippman, Judge Robert Smith (who wrote the court’s plurality opinion in the Hernandez case in 2006, rejecting the constitutional claim for same-sex marriage), and Judge Eugene Pigott, Governor George Pataki’s last appointee to the court, all pushed on the question of whether affirming the 3^rd Department based on its majority opinion on marriage recognition would mean that the court was deciding that question in all its applications, and not just for purposes of public employee benefits. Judge Pigott harped on the odd contention that recognizing out-of-state same-sex marriages at a time when same-sex couples can’t marry within the state would be like placing a higher value on the residents of other states than on New Yorkers, characterizing it as "discriminatory."

 

Samberg-Champion tried to keep coming back to the argument that the court would only be deciding the issue with respect to the situation before it of public employee benefits, and that the lower courts would be left to decide recognition issues on a case by case basis depending on the circumstances. Lippman was persistent in raising the question through the various arguments of whether it was more appropriate to settle the recognition issue broadly or let it play out agency by agency, county by county, decision by decision.

 

Nicolas-Brewster was in the position of trying to defend an executive order that, upon close scrutiny, appears circular and more symbolic than meaningful. Judge Smith in particular pushed hard on whether the order had any substantive effect, and whether affirming the 2^nd Department required the court to decide the broader marriage recognition issue, again signaling the court’s eagerness to avoid a broad ruling.

 

Finally, Sommer was peppered with questions about the scope of the ruling, and whether the court might refrain from taking a position on the marriage recognition issue in general. By the time the argument came around to her, it was increasingly clear that many members of the court were loath to take on the broader issue, knowing that the legislature could quickly render any decision by the court irrelevant.

 

Raum had saved some time for rebuttal, and argued that Spano’s order was not merely symbolic, contending that it could have an impact on Medicaid eligibility in the county, but he could not come up with a concrete example where somebody had received medicaid benefits as a result of the order rather than as a result of Governor Paterson’s directive from spring 2008 to executive branch agencies to comply with the Martinez decision by recognizing same-sex marriages contracted out of state. (ADF also filed a lawsuit challenging Paterson’s directive, but suffered a defeat in the trial court. That case has not yet been heard at an appellate level and was not before the Court of Appeals, although a broad ruling on the marriage question might render that lawsuit moot as well.)

 

Predicting an outcome after viewing an appellate argument is always dangerous. For one thing, Judge Theodore Jones sat absolutely mute during the entire argument, and Judge Carmen Ciparick said very little. Jones, the lone Spitzer appointee, was not on the court yet for Hernandez, and Ciparick, a Cuomo appointee, joined former Chief Judge Judith Kay’s dissent in that case. Judges Victoria Graffeo and Susan Phillips Read, both Pataki appointees, asked plenty of questions without necessarily signaling their view on the merits. Graffeo authored a concurring opinion in Hernandez, rejecting the constitutional marriage claim, but her questioning did not seem to signal overt hostility toward marriage recognition. She and Read seemed most concerned with the potential scope of a marriage recognition ruling.

 

The most active questioners, Lippman, Smith and Pigott, all seemed very concerned about limiting the scope of the ruling. Lippman, a protégé of Chief Judge Kay, might well share the strong views in favor of same-sex marriage that she articulated in her Hernandez dissent, but the question before the court in this case is different, and there’s no telling how he might vote. Pigott was not on the court for Hernandez, and his questioning seemed to signal a very practical approach to the problem facing the court, which would argue for a narrow ruling. Smith was very open about this, suggesting more than once the court’s general preference for finding a narrow basis to rule rather than to issue a broad ruling that might have unforeseen ramifications.

 

The New York Court of Appeals is a "hot bench" that prides itself on issuing decisions quickly after oral argument, which means the judges take time to study the briefs and have already begun formulating their views before the argument takes place. Smith, in particular, seemed to be intimately conversant with the details of old marriage recognition cases during his questioning of the attorneys. There could be a ruling in this case well before the end of the year, although if the State Senate takes up the marriage equality bill and passes it before the court can rule, it might decide to hold up and ask the parties for briefing on whether that would moot the case and obviate the need for a ruling.

 

The oral argument is available for viewing on the court’s website. Go to http://www.nycourts.gov/ctapps/, then click on the box where it says "Click here for Webcasts of Selected Oral Arguments."

Read the original article at Leonard Link