An intermediate appellate court in New York has ruled that a same-sex Canadian marriage involving New Yorkers is entitled to recognition as a marriage under New York law. Although the court’s opinion represents progress in understanding the legal issues involved, it still falls short of a thorough analysis.

The Decision

The case, Martinez v. Monroe Community College, involved a public employee’s challenge to the refusal of her employer to provide spousal health care benefits for the woman with whom she had formalized a same-sex marriage in Canada. The employer provided such benefits to opposite-sex spouses.

Overturning a 2006 trial court ruling that rejected the employee’s claim, the state appellate court first determined that the Canadian same-sex marriage was entitled to recognition under New York law. The court then held that the employer’s denial of spousal benefits constituted impermissible sexual orientation discrimination under the state employment discrimination law. (The latter theory will not be available to private-sector employees whose benefit plans are covered by the federal Employee Retirement Income Security Act (ERISA), which preempts state antidiscrimination laws.)

The determination that the marriage was entitled to recognition rested on In re May’s Estate, 114 N.E.2d 4, a notable 1953 decision in which the state’s highest court recognized as valid the out-of-state marriage of an uncle and niece, both of whom were residents of New York. There, the court reasoned that an out-of-state marriage was entitled to recognition if it was valid according to the law under which it was formalized, unless recognition violated an express statutory prohibition of New York law or involved polygamy, incest, or some other union that was “contrary to the prohibitions of natural law.” Id. at 6.

In Martinez, the appellate court applied this rule straightforwardly. The court correctly observed that the marriage was valid under Canadian law and then concluded that neither exception to the May’s Estate rule of recognition was applicable. The court correctly noted that, unlike many states, New York has not enacted any statute expressly denying recognition to out-of-state same-sex marriages, so the statutory exception did not apply. The court also concluded, though without analysis, that recognition would not come within the second exception, relating to polygamy, incest, and other unions that contravened natural law.

As for the employment discrimination holding, it was probably compelled by the highest state court’s previous decision in Levin v. Yeshiva University, 754 N.E.2d 1099 (N.Y. 2001), in which the court held that denying registered domestic partners access to married-student housing constituted impermissible sexual orientation discrimination under a New York City civil rights ordinance. The Martinez court did not cite Levin or provide much analysis in support of its employment discrimination holding.

Conflicts Critique

The reasoning in support of the recognition decision in Martinez was an advance over the reasoning in some previous New York opinions on this issue. But the analysis was not as thorough as it should have been. It failed to address several relevant issues.

What the Court Got Right

The Martinez court got several things right that other New York courts have gotten wrong.

First, the court correctly recognized that the issue of recognition sounded in ordinary conflict of laws, not so-called international comity. The trial court, relying on the poorly reasoned decision in In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004), had mistakenly sought an analytical framework in an archaic Supreme Court decision dealing with international recognition of judgments. The question of recognizing a Canadian same-sex marriage, however, calls for nothing more than application of ordinary principles of the conflict of laws, the source of which is New York common law.

Second, the court also correctly recognized that In re May’s Estate was the New York precedent most directly on point, and the court correctly stated the governing rule from that precedent.

Third, the court correctly approached the question without any predisposition against recognition, something that has obviously not been true in some other judicial decisions, both in New York and elsewhere. The Martinez court seems genuinely to have attempted to apply general conflict-of-laws principles that transcend the specific issue of same-sex marriages. There was no “gay exceptionalism” in its reasoning. To that extent, the court was correct in pointing out that any idiosyncratic exception to New York’s conflicts law for same-sex marriages should be crafted by the legislature, not the courts.

Fourth, the court correctly limited Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006), to its context. Although some New York courts have insisted that Hernandez somehow resolves the question of interjurisdictional recognition, it does not, at least not without a great deal of supplemental reasoning. Hernandez was simply not a conflict-of-laws decision. It was a purely internal-law decision. There, the court held that New York does not itself provide for same-sex marriages and then affirmed the constitutionality of that limitation. A basic principle of the conflict-of-laws is that purely internal-law decisions cannot simply be transposed onto a multistate problem. The multistate context makes the issues significantly different.

What the Court Got Wrong (or At Least Overlooked)

Although the Martinez court deserves credit for getting some things right, some features of its reasoning are either faulty or at least inadequate.

First and most problematic, the court utterly failed to consider the fact that Canada’s definition of marriage - a union of two persons - may be different from New York’s definition of marriage. Although the Hernandez decision is ambiguous on the point, it may stand for the proposition that New York defines marriage itself as a union of one man and one woman. That definition would be consistent with the definitions of marriage maintained by most other states, with the prominent exception of Massachusetts. The failure of the Martinez court to grapple with that probable definitional divergence between New York and Canada led the court to make some unsupported, though not necessarily incorrect, leaps in its logic. In short, the court failed to recognize that the case may present not only a conflict of laws as to the availability of same-sex marriages but also a conflict of laws as to the essential definition of marriage itself.

Second, the failure to consider the potential divergence in the definitions of marriage caused the court to hastily apply May’s Estate. If the legal relation that the plaintiff and her partner formalized in Canada is not within the cognizance of New York’s concept of marriage, the court should have addressed a serious characterization difficulty. In other words, May’s Estate provides the New York conflicts rule for resolving multistate disputes concerning the recognition of “marriages.” But for that rule to apply, New York conflicts law must comprehend the Martinez case as presenting a dispute about a “marriage.” The court gave no consideration to this threshhold and exceedingly difficulty conflicts issue.

Third, the failure to grapple with the potential definitional divergence also led the court to rely on other cases that might also not be on point. In addition to the consanguineous marriage at issue in May’s Estate, the court cited New York decisions recognizing out-of-state common-law marriages, underage marriages, and proxy marriages. But in none of those cases was there any interjurisdictional divergence as to the essential definition of marriage itself as the union of one man and one woman. That divergence potentially did exist in Martinez.

Fourth, although the Martinez court correctly analyzed the statutory exception to the recognition rule of May’s Estate, it may not have correctly analyzed the “natural law” exception. The court did articulate the correct standard - that the exception applied to out-of-state marriages that New York law would regard with “abhorrence.” But the court offered nothing but terse, conclusory statements that out-of-state same-sex marriages did not meet that standard. The court’s conclusion may well be correct, but it offered no support. The court might have cited, for example, all sorts of public policy developments in New York law that tend to suggest a significant degree of comfort with same-sex relationships. Of course, to the extent May’s Estate was serious about conducting an orthodox “natural law” inquiry - a highly doubtful proposition - there are numerous sources, particularly in the Catholic tradition, contending that same-sex unions violate “natural law.” The court did not address that issue at all. Nor, significantly, did the court consider the rationales sustaining New York’s limitation of marriage, rationales embraced in Hernandez, as potentially shedding some light on this public policy question.

Conclusion

The court’s result may or may not have been correct as a matter of conflicts law, and its analysis could have been more thorough in a number of ways. The opinion does, however, represent some progress in the New York judiciary’s understanding of this issue.

The opinion is available here, and I am tracking the Martinez case here. See also Art Leonard’s summary of the decision, referenced below.