Tuesday, November 24, 2009

News: Same-Sex Marriage in the Court of Appeals

The Court of Appeals, in Godfrey v Spano 2009 NY Slip Op 08474 (November 19, 2009) had the issue of same-sex marriage before it some three years after it considered the landmark case Hernandez v Robles, 7 N.Y.3d 338 (2006). While affirming the right of a municipality to recognize extra-jurisdictional same-sex marriages for purposes of public employee health insurance and other benefits, the Court's majority declined to address the larger issue before it-- recognition of all such marriages for all purposes.

In Hernandez, a divided Court of Appeals affirmed the holding that the Domestic Relations Law limits marriage to opposite-sex couples and stated that it was up to the legislature and not the court to make the change. In subsequent appellate and trial court decisions [particularly including Martinez v County of Monroe, 50 AD3d 189 (4th Dept 2008) lv dismissed 10 NY3d 856 (2008)], the separate issue of full faith and credit and/or comity were deemed to be distinguishable from the Hernandez decision so that even if New York did not sanction same-sex marriage, it would be required under long standing constitutional principles, to recognize same-sex marriages which were performed in jurisdictions which did sanction those marriages. Such principles are such as those applied in the domestic relations sense to "common law" marriages.

Upon appeal to the Court of Appeals, the Court, with a concurring opinion by Judge Ciparick and joined by Chief Judge Lippman and Judge Jones, declined to extend their holding, stating,

"Because we can decide the cases before us on narrower grounds, we find it unnecessary to reach defendants' argument that New York's common law marriage recognition rule is a proper basis for the challenged recognition of out-of-state same-sex marriages. We end, by repeating what we said in Hernandez v Robles, expressing our hope that the Legislature will address this controversy; that it ‘will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made’"

The concurring opinion, however, went further and averred,

"Although I agree with the result reached by the majority, I write separately to set forth my view that the orders under review should be affirmed on the ground that same-sex marriages, valid where performed, are entitled to full legal recognition in New York under our State's longstanding marriage recognition rule. The issue is squarely presented in these appeals and plaintiffs' standing allegations are sufficient to allow us to reach it. The effect of the majority's rationale in affirming these orders will be to permit an unworkable pattern of conflicting executive and administrative directives promulgated pursuant to the individual discretion of each agency head. We ought to avoid the confusion that would arise from a same-sex couple being considered legally married by one agency for one purpose but not married by another agency for a different purpose."

While the High Court is certainly within its right to address the narrower issue, given the declination of leave to appeal in Martinez and the Legislature’s inability to even act upon a no fault divorce law, the same-sex marriage issue will most likely linger in a way that does ongoing disservice to time honored precepts of full faith and credit as well as comity. The Court’s inaction on this "elephant in the room" issue will only create more confusion and moreover give those opposed to same-sex marriage more room to hack away at constitutional bedrock. Even if one opposes same-sex marriage on "principle", we still must preserve the recognition of laws which are properly valid in other states and jurisdictions and it does not require legislative action to do so.
The decision in Godfrey mat be found at:

Friday, November 20, 2009


The Appellate Division Second Department issued a decision on November 17, 2009 in Davis v Davis, 2009 NY Slip Op 2009, which found that New York law does not recognize a cause of action for "social abandonment" as an extension of the abandonment ground for divorce. The decision which twice cites one of my New York Law Journal articles, "No Fault Divorce: New Twist on Constructive Abandonment" from March 2005 indicates that the "social abandonment" claim is too amorphous and falls into the "irreconcilable differences/no fault" type category which is not accepted in New York. The decision does, however, recognize the frustration with the lack of no fault grounds in New York and indicates that this case cannot provide the vehicle to accomplish that goal. The case may be found at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08579.htm

Saturday, November 14, 2009

More Than a Few Good Men (and Women)

I know it’s been awhile since the last post– over a month in fact. Mea culpa. Things have been busy. Since the post of October 6, in addition to the usual slate of matrimonial cases, I organized the lecture for the Nassau County Matrimonial Committee’s October meeting, moderated the Matrimonial and Family Law Judicial Forum (in which I also wrote the seminar materials) and attended the annual meeting of the American Academy of Matrimonial Lawyers in Chicago– and boy are my arms tired. These last three experiences have given me great pause and are the fodder for an article which is in germination as we speak, but I will lay out a small jot (I know it’s redundant, thank you) of my thoughts here.

Believe it or not, I like what I do. I really do get to help people, at least I always try. That is not to say that things do not get ugly as I have mentioned in earlier posts. Most of my nights are restless, if not sleep deprived. A thought here, a worry there, a revelation or hopeful stroke of self-perceived (deluded?) genius sometimes within thought’s reach or not, keeps me tossing and turning. I know that I represent people who are often at their most fragile and that while their turmoil should not become my own, it is many times unavoidable. This does not mean that I cannot separate myself from becoming one with my client’s emotional plight– doing that is the worst thing a lawyer can do not only to his or herself, but also to the client. I tell clients from my initial consultation, that we cannot ride the emotional roller-coaster together; at least one of us needs to think with a clear head and it better be me. What it does mean, is that I am invested in trying to help put the pieces back together and that includes making a commitment to them, their case and their issues-- all coupled with honest assessment. All of these self-directed platitudes are not ego-strokes (really, they’re not– I swear), but to make the point that I am not the only one who feels this way about the practice of family law. In fact, not only do I like what I do, I also like (most) matrimonial attorneys.

Gathering together in a group or speaking individually, there is almost always a sense of caring and/or frustration. Caring about their client and their client’s situation; frustrated about the law and the system’s inability to cope and address their needs and predicaments in a timely and fair manner. There are great aspirations in what we do as men and women in the matrimonial bar. We try our hardest to fulfill them. It pains us when we cannot bring these cases to amicable resolution or if the litigation engenders a decision which we feel is unjust. I think of Gregory Peck in To Kill a Mockingbird or Spencer Tracy in Inherit the Wind. While we may not be able to articulate the kind of words or sentiments brought forth from the written page by these great performances, (and I can tell you that I give it my best shot every time) it is the ideal that most strive for on behalf of those who come to us for representation.

My trip to Chicago for the AAAL meeting served to reinforce what was already clear to me, but sharpened the focus even more so. If you are reading this as a person going through the turmoil of a divorce/family law situation, you should be heartened to know that there are many honest, caring and empathetic professionals out there who specialize in this area and who want to help– seek them out. If you are a matrimonial/family law attorney who fits the description in the last sentence, you know what I am talking about. The others should find something else to do; we all know who you are and you can’t handle the truth.