Though New York Governor Paterson’s order requiring state agencies to recognize out-of-state same-sex marriages has overshadowed this earlier action, Westchester County executive Andrew Spano did issue an order in June 2006 requiring all county agencies under his control to recognize out-of-state same-sex marriages. This order was challenged in the courts on the ground that it was inconsistent with the New York Court of Appeals’ decision in Hernandez v. Robles, which, in July 2006, held that the New York Domestic Relations Law limits marriage to different-sex couples and upheld the constitutionality of the domestic relations law.
At the very end of December, the Appellate Division of the New York Supreme Court upheld the validity of Spano’s order (the short decision can be found at 2008 N.Y. App. Div. Lexis 10226). The Appellate Division did not, however, add to the positive decision in Martinez v. County of Monroe, 850 N.Y.S.2d 740 (N.Y. App. Div. 2008), upon which Governor Paterson’s order was premised and which was the first appellate decision to hold that out-of-state same-sex marriages are entitled to recognition under New York law. Given earlier contrary decisions from lower courts refusing recognition to a Canadian same-sex marriage, see Funderburke v. N.Y. State Dep’t of Civil Serv., 13 Misc. 3d 284 (N.Y. Sup. Ct. 2006), vacated by 854 N.Y.S.2d 466 (N.Y. App. Div. 2008), and Gonzalez v. Green, 831 N.Y.S.2d 856 (N.Y. Sup. Ct. 2006), and earlier appellate decisions similarly refusing recognition to a Vermont civil union (which is supposed to be the equivalent of a marriage), see Matter of Langan v. State Farm Fire & Cas., 849 N.Y.S.2d 105 (N.Y. App. Div. 2007), and Langan v. St. Vincent’s Hosp., 802 N.Y.S.2d 476 (N.Y. App. Div. 2005), a decision from another department of the appellate division in line with Martinez would have been quite welcome.
Instead, the Appellate Division in Godfrey v. Spano upheld the validity of Spano’s order on the narrow ground that he had ordered only “that same-sex marriages be recognized to ‘the maximum extent allowed by law.’ By its terms, therefore, the Executive Order can never require recognition of such a marriage where it would be outside the law to do so. Since it is within the authority of the County Executive ‘[t]o see that the laws of the state, pertaining to the affairs and government of the county . . . are executed and enforced within the county’, the Executive Order is not illegal.” (Citation omitted.)
Thus, while a good result, the decision in Godfrey v. Spano does nothing to clear up the continuing uncertainty surrounding the recognition of out-of-state same-sex marriages in New York, especially given that Governor Paterson’s executive order continues to be the subject of a court challenge.