2007: Comity

March: Foreign marriages are recognized in New York

A New York lower court rules that same-sex couples married in Canada and elsewhere have the right to have their marriages recognized in New York.

In 2006, Westchester County Executive Andrew Spano issued an executive order “requiring county agencies to recognize same-sex marriages where validly contracted out-of-state”. Margaret Godfrey and other taxpayers didn’t like that so they sued Spano. Gay couple Robert Voorheis and Michael Sabatino were allowed to join the suit, saying, hey, we’re county residents, validly married in Canada – why shouldn’t we be treated equally?

In Godfrey v. Spano, the judge points out to Godfrey that New York law has a history of recognizing foreign marriages under the principal of comity, even though those marriages couldn’t otherwise be conducted in New York. And therefore the County Executive had every right to have his agencies recognize marriages like that of Voorheis and Sabatino.

So that helps couples like the Voorheis-Sabatinos who were married in Canada. But it still doesn’t help those New York couples married in Massachusetts. Why? Because Massachusett’s Cote-Whitacre v. DPH decision from 2006 said that, because New York law prevented same-sex couples from marrying, Massachusetts wouldn’t validate the marriages of New York same-sex couples who married in Massachusetts.

But wait, said some couples – New York law didn’t always say we couldn’t marry. Which leads us to…

May: Some Massachusetts marriages can also be recognized in New York

So now we get an interesting display of the legal workings of comity – the “I will if you will but I won’t if you won’t” principle in which state judges get to interpret and apply the laws of other states.

In a ripple from Massachusett’s Cote-Whitacre v. DPH (see Fall 2006: Is this progress?), the Massachusetts Cote-Whitacre judge agrees that his previous ruling was too broad. He now rules that some Massachusetts-married New York couples should be considered legally married.

The ruling applies to those New York couples married from May 2004, when Massachusetts began marrying same-sex couples, to July 2006, when the New York high court issued its Hernandez v. Robles decision (see Summer 2006: Disappointment). Recall that, up until Hernandez, New York law said nothing one way or the other about the right of same-sex couples to marry – so, the judge reasoned, why shouldn’t they be allowed to marry?

June: The proposed amendment fails in Massachusetts

June sees the exciting end to a divisive process, started in December 2005, to amend the Massachusetts state constitution to permanently keep same-sex couples from marrying. The amendment attempt fails, allowing same-sex couples to continue marrying.

In December of ’05, an organization gathered enough signatures to pass a referendum to the state legislature to amend the constitution. The state constitution is written such that voter-generated amendments are assumed worthy of adoption, and they can be defeated only if a large majority of legislators thinks it’s a bad idea in two consecutive legislative sessions. But if only one-quarter of the legislators votes for the amendment in the two sessions, it passes.

The first legislative test of the contentious amendment came on the last day of the 2006 session, held in January 2007. 132 legislators voted against the amendment – but 61 voted for it, exceeding the threshold of 50 votes needed. The amendment therefore survived to the next round.

Now in June the rancorous vote is held again. If the amendment receives 50 “yes” votes, it will be adopted and same-sex couples will lose the only state where they could marry. This time, in a nail-biter, 151 legislators oppose it – and only 45 vote for it. Same-sex couples and advocates of equality rejoice as the amendment is defeated.

July: As far as Massachusetts is concerned, New Mexico couples can marry in Massachusetts

In the continuing dance to the tune of comity, the Massachusetts Department Of Public Health says that, because there’s no New Mexico law to the contrary, same-sex couples from the Land Of Enchantment can get a Massachusetts marriage. (Now whether New Mexico will recognize those marriages, well that’s a different question that New Mexico will have to answer.)

The Registrar Of Vital Records And Statistics for Massachusetts, Stanley Nyberg, issues a notice to city and town clerks: “Effective immediately, Intentions to Marry completed by same-sex couples from New Mexico who seek licenses to marry in Massachusetts may be accepted. … Under applicable Massachusetts law… New Mexico’s laws do not prohibit marriage between parties of the same gender.”

Timeline key: progress (green), no progress (red), pending court cases (purple),
events that are neutral, not directly related, or with both positive and negative effects (black)