Last month, the Appellate Division of the State Supreme Court unanimously found Patricia Martinez’s 2004 Canadian marriage to her lesbian partner to be valid in New York.
For some gay rights advocates, that decision, which forces New York State to acknowledge same sex marriages performed elsewhere, felt something like entering a mansion through an open window: while the decision offered access to privileges and responsibilities many gay couples had fought hard for, it still denied them a New York wedding.
“It was a step in the right direction,” said Alan Van Capelle, executive director of Empire State Pride Agenda, which lobbies for gay rights. “But it wasn’t the holy grail of decisions in this movement.”
Gay marriage advocates like Van Capelle hope the court’s Feb. 1 decision might nudge the state towards acceptance, and even possibly provide impetus for a floor vote in the Republican-dominated State Senate. Though the Assembly voted to legalize gay marriages by a vote of 85-to-61 last spring, two Senate legalization bills remained tied up in committees.
If the court decision prompts movement on the bills, this would hardly be the first time the judicial branch paved the way for legislative action on a controversial and divisive issue.
“Many people in the gay and lesbian community view the courts as the best vehicle for moving their rights forward,” said Jonathan Turley, a professor of public interest law at George Washington Law School. “They took this from the civil rights movement, in which the courts desegregated the south and the legislature followed.”
In Massachusetts—the only U.S. state that has legalized gay marriage—the Massachusetts Supreme Judicial Court found in 2003 that same-sex couples had the right to marry. The Bay State legislature, however, voted several times on bans of same-sex marriages before passing a 2007 law preventing a proposed ban.
A Quinnipiac University poll of 1,083 New York State voters last December found 40 percent in favor of gay marriage, versus 29 percent who favored civil unions and only 23 percent who opposed both. Nonetheless, New York lags behind 10 other states in legalizing civil unions or domestic partnerships. Hernandez v. Robles, the 2006 Court of Appeals decision, overturned a New York City court’s ruling, and found same-sex marriages in violation of state law.



The recent decision could offer legal benefits to thousands of New York state couples while not reversing the findings in Hernandez.
“It decided on a completely different issue,” said Jeffrey Wicks, the Rochester lawyer who represented Martinez in the recent court case. “It’s almost as if this case has nothing to do with gay marriage. It has to do with recognizing marriage in other states.”
Rather than argue the virtues of same sex marriage, Wicks used a back-door method, relying on the long-standing tradition of recognizing out-of-state nuptials, including common law marriages, marriages of couples under 18, and marriages between relatives.
Legal reverberations came quickly. On Feb. 22, Maggie Brooks (R), the Monroe County Executive, announced that she would be making a motion to appeal the court’s decision.
“This is a clear case of misinterpretation of the law,” said Brooks in a released statement. “We cannot simply extend benefits to unmarried couples, and we certainly cannot ignore the definition of marriage that currently exists under state law.”
A rally in the streets of Rochester opposing Brooks’ appeal followed on Feb. 25 featuring several gay rights groups and representatives from the New York Civil Liberties Union’s Genesee Valley Chapter.
Meanwhile, the Martinez case was cited in a New York State Supreme Court decision to allow a lesbian to sue her partner for divorce four years after their Canadian wedding.
The Martinez decision still leaves room for legislators to ban gay marriage, which would invalidate these out-of-state marriages in New York.
But such a ban seems unlikely. A 2004 ban languished in the Senate without a vote, and while Senate Majority Leader Joseph Bruno (R-Rensselaer) has spoken out against legalizing gay marriage, he made no mentions of supporting a new ban.
“Senator Bruno is opposed to gay marriage, but he is focused on other legislation right now,” said Bruno spokesperson Mark Hansen.
Some in the Senate felt that the court decision could move Senators to vote on the two current same-sex marriage bills.
Sen. Tom Duane (D-Manhattan), whose 2007 gay marriage bill remains stuck in the Judiciary Committee, suggested that the February decision could sway Republican senators.
“I am going to keep the heat on,” said Duane. “If the Republicans thought that they would keep their majority by passing my bill, they might be moved to vote on it.”
Duane will not be the only one putting pressure on other senators.
“We now have a small army of religious, labor and corporate allies who are lobbying the Legislature,” said Van Capelle. “The next step is when the Senate follows what the governor, Assembly and the courts have decided is right.”    
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