Although a same-sex couple cannot get married in New York, they can go to another state that authorizes same-sex marriages and enter into a marriage that will be recognized in New York, and the New York courts will be available to them in case the marriage fails and they seek a divorce. That is the upshot of a May 18 ruling by New York State Acting Supreme Court Justice John Kelly, of Suffolk County Supreme Court, whose opinion was published on May 23 in the New York Law Journal. S.M. v. C.R., Index Number Redacted, NYLJ 12202494607706, at *1 (Sup. SU, decided May 18, 2011).
According to Justice Kelly's opinion, the lesbian couple was legally married in Bridgeport, Connecticut, on July 7, 2009, the year after Connecticut's Supreme Court ruled in favor of the right of same-sex couples to marry in that state. S.M. recently filed a petition in Suffolk County (where the couple resides) under New York's no-fault divorce law seeking to terminate the marriage.
Although divorces have been granted to same-sex couples by trial judges elsewhere in the state, this may be the first such petition granted within the bounds of the 2nd Appellate Department, which includes Brooklyn (Kings County), Queens, Staten Island (Richmond County), Nassau and Suffolk counties on Long Island, and some counties just north of the NY City line. Thus far, the Appellate Divisions in the 1st (Manhattan and Bronx), 3rd and 4th Departments have issued decisions that can be construed as recognizing same-sex marriages contracted either in Canada or in one of the U.S. jurisdictions that authorize same-sex marriages. The 2nd Department Appellate Division has yet to speak directly to the issue, so trial judges in these counties still need to go through the legal analysis of determining whether the same-sex marriage contracted outside the state should be recognized in the context of a divorce proceeding.
The question also remains alive because the state's highest court, the Court of Appeals, has ducked it, a majority having voted in Godfrey v. Spano, 113 N.Y.3d 358 (2009), to decide the validity of challenged governmental actions concerning same-sex couples on other grounds, with a minority of the court arguing that the disposition could have been made on the ground that New York's common law marriage recognition rules would require recognition of same-sex marriages validly contracted out-of-state. The majority urged that the question of marriage recognition be taken up by the legislature. The legislature has done so only indirectly, by including in the legislative history of the recently enacted no-fault divorce provisions (a footnote in a committee report on the bill) a comment that the divorce statute should be available to same-sex couples in New York who married out-of-state.
Justice Kelly looked to the history of marriage recognition in New York, noting the seminal case of VanVoorhis v. Brintnall, 86 N.Y. 18 (1881), where the court embraced the analogy of a marriage to a contract and observed that just as New York recognizes and enforces contracts lawfully made in other jurisdictions, so it should enforce marriage contracts lawfully made in other jurisdictions. The VanVoorhis court also referred to the "universal practice of civilized nations" regarding marriage recognition, a concept generally referred to as "comity," which Justice Kelly says is "codified in the United State Constitution and referred to as the Full Faith and Credit Clause."
"The Full Faith and Credit Clause," he continues, "requires states to give effect to the legislative acts, public records and judicial decisions of other states. As with comity, the Full Faith and Credit Clause is an integral part of a court's decision to recognize an out-of-state marriage." This assertion by Justice Kelly could be considered controversial, as the voluminous law journal commentaries on marriage recognition that have been spawned over the past two decades as a result of the campaign for same-sex marriage are not unanimous about whether the Full Faith and Credit Clause should be construed to cover the issue of marriage recognition. In any event, Congress apparently thought that it was ruling out such an interpretation when it passed the Defense of Marriage Act in 1996, providing that the FFCC may not be construed to require any state to recognize a same-sex marriage performed in any other state.
Justice Kelly continues: "From the seminal decision in VanVoorhis and its progeny, the distilled rule that emerged is that the validity of a marriage contract is to be determined by the courts of the state where it was entered into, and if valid there, is to be recognized as such in the courts of this state unless contrary to the prohibitions of natural law or the express prohibitions of statute." From there, the analysis flows along familiar lines from the decisions in the 1st, 3rd and 4th Department Appellate Division courts, and the divorce rulings by several judges in Manhattan (New York County). The only natural law exceptions recognized in New York concern incestuous or polygamous marriages, and there is no express statutory prohibition in New York on recognizing same-sex marriages.
"In the case before the bar, the parties were validly married in Connecticut and have satisfied the residency requirements necessary in order to obtain a divorce in New York," wrote Justice Kelly. "At this point, the New York Legislature has not expressly prohibited the recognition of valid out-of-state same-sex marriages in New York. The absence of express legislation prohibiting out-of-state same-sex marriages, case law and the prevailing public policy towards same-sex partners in the State of New York compels this court to recognize the parties' marriage. Therefore, it is ineluctable that this court recognizes the parties' marriage duly solemnized in the State of Connecticut based upon the Full Faith and Credit Clause of the United States Constitution, the legal doctrine of comity and this State's long standing common law marriage recognition rule. As a consequence of this recognition, this court grants the plaintiff the Judgment of Divorce submitted to the court for signature."
S.M. is represented by attorney Richard Borda of Bay Shore, New York, who praised Justice Kelly's decision to the Law Journal as "one of great concern and understanding." C.R. represents herself in the proceeding, which was not contested between the parties.