Given my opposition to courts mandating gay marriage (as recently happened in my adopted home state), it would seem I would oppose the imposing this alteration of the institution by executive fiat, something which seems to have taken place in the Empire State. New York Governor David Paterson recently signed a directive making the Empire State “the only state that did not itself allow gay marriage but fully recognized same-sex unions entered into elsewhere.”
Opponents of gay marriage have faulted the Governor for unilaterally enacting gay marriage, with Bill Duncan of the Marriage Law Foundation, calling the move “outrageous:”
The legislature has had the opportunity to act and has not; the state’s highest court rejected any claim that the state constitution requires it and now the governor has made an end run around these decisions by broadcasting that New York couples can go to California and get married, then return home and have those marriages recognized.
While the Governor’s action does appear to be an end-run around his state Court of Appeals (its highest court) 2006 decision refusal to mandate gay marriage in the Empire State, the New York Governor is on firmer legal ground than the California Supreme Court.
As Dale Carpenter points out:
The executive memo [providing the legal rationale for the decision] implements on a state-wide basis the legal principles in longstanding state law about recognizing foreign marriages and in reported judicial decisions on this very matter. In theory, the state’s high court could hold that same-sex marriages are repugnant to public policy in the state, and thus refuse recognition to such marriages from out of state. But that would be a very unusual decision. As in other states, the presumption in New York is to recognize marriages validly performed out of state even if not otherwise recognized in the state itself. Gay marriages should be no exception since New York is one of five states that does not have a statute or constitutional amendment banning recognition of such marriages.
(H/t; Instapundit.) I added emphasis to the last sentence because the failure of the Empire State to enact such a statute or amendment distinguishes this case.
In the wake of the Hawaii Supreme Court 1993 ruling opening the door to state recognition of same-sex unions (overturned by a 1998 popular initiative), most states enacted laws stipulating that their jurisdictions did not have to recognize same-sex marriages performed out-of-state. Indeed in 1996, Congress passed and President Clinton signed “the federal Defense of Marriage Act (DOMA), which upholds states’ rights to ban same-sex marriages and to refuse to recognize such marriages performed elsewhere.”
Legislators and lawyers believed that in the absence of such legislation, states would have to recognize same-sex marriages performed in other states. Neither New York’s legislature nor its citizens succeeded in enacting such statutes.
In the absence of a statute, it seems then that as a matter of law, the Empire State must recognize same-sex marriages as it would recognize any marriage peformed in a “foreign” jurisdiction (in accordance with its laws even if dubiously mandated).
The Governor appears to be right on this one.
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