2007: Maryland’s court disappoints in Deane & Polyak

Good news: New York State

New York couples get some good news with September’s Godfrey v. Hevesi.

In 2004, the state's Comptroller Alan Hevesi issued a decision in response to an inquiry by a gay state employee. The employee wanted to know if his retirement benefits would cover his family if he and his partner were legally married in Canada. Hevesi wrote,

Based on current law, the retirement system will recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage under the principle of comity. That principle has been legal practice pursuant to New York Court of Appeals rulings for many years.

Similar to March’s Godfrey v. Spano, anti-gay taxpayer Margaret Godfrey (with the help of anti-gay Alliance Defense Fund) sued, saying the Comptroller didn’t have the right to squander her tax money like that. The New York lower court dismisses her suit, confirming that the Comptroller is correct in his interpretation of the law.

Following the ruling, Hevesi’s successor announces that, under the principle of comity, the retirement system will start recognizing the marriages of same-sex couples regardless of where they were performed. This benefits New York couples married in Massachusetts, Spain, the Netherlands, South Africa and Belgium.

Good news: Seattle

In Seattle, Washington State, the City and the Mayor have their recognition of same-sex couples affirmed in Leskovar v. City.

In 2004, when San Francisco and nearby Portland, Oregon began marrying same-sex couples, the Mayor of Seattle, Greg Nickels, issued an Executive Order titled “City Recognition of Valid Marriage Licenses” supporting City employees (such as your author) who married their same-sex partners. The Whereas clauses included:

WHEREAS, hundreds of protections, privileges, benefits and responsibilities are denied to same sex couples because of their inability to marry; and

WHEREAS, marriage equality should be afforded to all consenting, adult couples regardless of their sexual orientation; and

WHEREAS, the City of Seattle has recognized domestic partnerships since 1989 and has subsequently granted equal employee benefits to city employees with a domestic partner

The substance of the order was that “all City Departments recognize the same sex marriages of City employees in the same manner as they currently recognize opposite sex marriages of City employees for purposes of granting employee benefits and other benefits ordinarily received in the course of employment.”

Fundamentalist minister Randy Leskovar and a group of other anti-gay Seattleites sue the City, claiming it doesn’t have the right to recognize marriages of same-sex couples.

The intermediate level state court disagrees, however, ruling in September that the Whereas’s are merely “aspirational views” that, while the Mayor might wish it, have no legal effect. And as far as the substance of the order, it is well established that the City has the “authority to provide benefits to employees and their dependents. Thus, the mayor was fully within his right to issue an executive order directing the provision of employee benefits to employees of the City of Seattle.”

Good news: California (again)

Repeating its action from 2005, the California legislature in September again passes a law permitting same-sex couples to marry. (But it won’t last long…)

Bad news: Maryland, California, and Rhode Island

September’s Deane & Polyak v. Conaway deals a blow to same-sex couples. Maryland’s high court overturns a lower court ruling in favor of same-sex couples, ruling 4-to-3 that barring same-sex couples from marriage is not sex discrimination. Furthermore,

The Deane & Polyak plaintiffs

[w]hile the court agreed that marriage is a fundamental right, it said there is no fundamental right to marry someone of the same sex. The court also says that laws discriminating against gay people are not subject to stringent judicial review. Although the court acknowledges that there has been a history of unfair discrimination against gay people, as a group gay people are not politically powerless. The court then used the least demanding form of constitutional analysis [rational basis review] to determine if the ban violated the state’s equal protection guarantees and said that excluding same-sex couples from marriage might rationally be related to fostering procreation, so the state can continue to deny same-sex couples the ability to marry and its family protections. [from ACLU]

In California, Governor Arnold Schwarzenegger repeats his 2005 veto. In October he vetoes the legislation passed by the state legislature the previous month that would have permitted same-sex couples to marry.

And in December, the Rhode Island Supreme Court rules that same-sex couples married outside the state can’t get divorced in Rhode Island. In May 2004, Rhode Island residents Margaret Chambers and Cassandra Ormiston went to Massachusetts and got married. A few months later they decided to divorce. In Chambers v. Ormiston, the court bends over backward to violate several of its own precedents to reach the conclusion that Rhode Island courts cannot divorce same-sex couples. (For its definition of marriage, it uses as its legal authority the 1961 edition of Webster’s Third New International Dictionary of the English Language.) A strange upshot, therefore, is that, while Rhode Island will not marry same-sex couples and will not recognize their marriages, once they’re married elsewhere, it forces them to stay married.

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)