NASSAU COUNTY CIVIC ASSOCIATION, INC. "The government is us, we are the government, you and I." Teddy Roosevelt

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July 6, 2006

Re-defining Marriage One Step at a Time

Defending marriage in word while destroying it in deed

Marriage is defined by Webster’s Dictionary as “the state of being married; [a] relation between husband and wife….. any close or intimate union”. [1] The definition is simple and is nothing more than common sense. The concept of marriage is rationally based on the definition of family. It is not a game of word play or parallel legal definitions. It is what it is. When a simple issue becomes so complex for politicians, it can only be defined as equivocation. While the legislature defends marriage in word, they allow the adversaries of marriage to change the definition one step at a time.[2] It’s not what they say but how they act.

While both Governor George Pataki and the legislature claim to support marriage as a union between one man and one woman, both branches have acted to re-define marriage through executive order and legislation. Many of the legal definitions treat domestic partners as spouses. Webster’s Dictionary defines spouse as, “a partner in marriage; (one’s) husband or wife…”[3]

By 2001, all branches of state government including the legislature recognized domestic partners as spouses for medical benefits. Shortly after September 11^th, the Governor issued several executive orders recognizing domestic partners for spousal benefits pertaining to compensation from the Crime Victims Fund and the state 911 fund. In 2002, four pieces of legislation were signed into law that allowed domestic partners to receive compensation from the federal 911 fund, workers compensation (including death benefits), 911 scholarship funds and life insurance. In 2003, domestic partners were recognized as spouses related to banking such as credit unions.

In 2004, three major changes were enacted providing additional marriage like rights to domestic partners. The first was by directive of Governor Pataki which required the NYS Department of Labor to provide unemployment benefits to domestic partners. Two pieces of legislation authorized racing track access passes to domestic partners and visitation rights at hospitals, nursing homes and medical facilities. The latter codified the definition of domestic partner under state law.

Setting a legal precedent, Governor Pataki signed the “Control of Remains” bill into law this past February. The law becomes the first to recognize a domestic partner as a spouse ahead of a surviving parent or child. It would allow a domestic partner to control the decision over the other domestic partner’s remains.

The failure of the executive and legislative branches to defend marriage was epitomized when no action was taken against New Paltz Mayor Jason West who illegally solemnized 25 homosexual marriages in 2004. While Senate Majority leader Joe Bruno publicly criticized the mayor, he took no further action. Even Attorney General Spitzer (who publicly supports homosexual marriage) refused to obtain an injunction. The Governor declined to appoint a special prosecutor to enforce state law. Ultimately, the District Attorney of Ulster County along with Liberty Counsel, a public interest law firm obtained injunctive relief against the Mayor and two officials the mayor appointed to continue solemnizing homosexual marriages.

Shortly after the Mayor of New Paltz illegally solemnized homosexual marriages, Attorney General Spitizer issued his “Advisory opinion” on whether New York statute/case law allows homosexual marriage. His opinion failed to address the legal ramifications of the1996 Defense of Marriage Act relative to the recognition of homosexual marriages performed outside New York State. He advised that New York is obligated to recognize these marriages. As a result, several jurisdictions now recognize homosexual marriages performed outside of New York State; NYC, Nyack, Ithaca, Buffalo, Brighton, Rochester and recently Westchester County. CUNY, two Teamsters locals, and some corporations have followed suit.  

In late June 2004, the Attorney General filed an amicus curie brief in support of a man in a Vermont civil union who sought to be considered a “spouse” for purposes of New York’s wrongful death statute. Based on his role of advocacy in a private action inconsistent with state law and his role as attorney general, the Nassau County Civic Association, Inc sent a letter in July 2004 to the Chief Counsel of the NYS Senate, Marcus Ferguson requesting a review of the Attorney General’s actions by the legislature.[4] No action was ever taken.   

In October 2004, Comptroller Alan Hevesi announced that after an administrative review, he would be required to recognize all out of state homosexual marriages relating to pension benefits including an accidental death benefit and cost of living increases. He was publicly criticized by the Governor who vowed to review his administrative determination. No action was ever taken.

While New York State does not have an official domestic registry (it has a limited mechanism for recognizing domestic partners by executive order), several other jurisdictions do such as NYC, Westchester and Albany County. As noted in the article, “Defending Marriage in Nassau”, the concept of a Domestic Registry is nothing more than a parallel legal scheme to provide all the benefits of marriage while playing semantics.

Earlier this year, Rockland and Suffolk Counties passed laws establishing domestic registries. Based on the successful passage of these bills, a bill was introduced into the Nassau County legislature. The two agenda groups supporting the bill, Empire State Pride Agenda and the Nassau County Lesbian & Gay Democrats made it clear that they wanted to send a political message to Albany in support of Homosexual marriage. The public was formally given notice of the proposed bill only four days prior to the vote scheduled for April 24^th. Once the Nassau County Civic Association, Inc was able to alert the public as to the bill’s provisions and the intent of the proponents, the bill was defeated. It is important to note that the bill had similar provisions of both the state visitation and burial remains laws.

The message of this defeat is simple; once the people have all the facts, they do not support homosexual marriage or any other legal scheme that provides the same outcome. Even so, Senate Majority Leader Joe Bruno addressed the agenda group, Empire Pride Agenda for the first time this past May. He promised to consider expanding rights for homosexual couples. 

Two recent legal decisions by the New York’s Court of Appeals have stalled efforts to re-define marriage. In February, the court voted 4-3 to uphold the decision of an appeals court which struck down New York City’s “Equal Benefits Law”. The law which required companies with city contracts worth a least $100,000 to provide spousal benefits to homosexual couples was found to be in conflict with state law. The court ruled that the law “expressly excludes a class of potential bidders for a reason unrelated to the quality or price of the goods that they offer".

The second and most important decision was issued today. In a 4-2 decision, the court ruled that New York’s Domestic Relations Law did not authorize homosexual marriage. The court agreed with several lower courts that the state has a rational basis for limiting marriage to opposite sex couples and held that the New York State Constitution does not provide a right to homosexual marriage. The court determined that any change to New York’s marriage laws should be addressed by the legislature.

With the recent history of activist judges, the latter decision is truly a victory. While the legislature claims to defend marriage, their actions tell a different story.