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  WINDY CITY TIMES

Pro-Gay Rulings in N.Y. and Ore.
by Lisa Keen, Keen News Service
2008-02-06

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In a decision that could have significant political implications beyond its state border, a five-member, mostly Republican, state appeals court in New York State ruled Feb. 1 that a same-sex marriage established in Canada 'is entitled to recognition in New York State.' The American Civil Liberties Union of New York called the decision 'the first known decision in the country to hold that a valid same-sex marriage must be recognized here.'

On that same day, in Oregon, a federal court in Portland lifted an injunction which had prevented the state's newly passed domestic partnership law from going into effect Jan. 2. U.S. District Court Judge Michael Mosman, an appointee of President Bush, ruled that opponents of the domestic partnership law had not gathered sufficient valid signatures to put a referendum on the law on the ballot.

The New York ruling came in Martinez v. Monroe, a case brought by Patricia Martinez seeking equal health care benefits from her employer, Monroe Community College, for her same-sex spouse, Lisa Golden.

Monroe Community College is located in Rochester, N.Y.; and the unanimous decision came from one of the state's four appellate divisions, comprised of four appointees of Republican Governor George Pataki and one of former Democratic Gov. Mario Cuomo.

After securing a marriage license in Ontario in July 2004, Martinez, an employee of the college, applied to have Golden covered under the college's health coverage for employees and their spouses. The college denied coverage and Martinez filed a lawsuit in state court, saying the denial violated the state constitution's guarantee of equal protection. The appeals court did not consider the equal protection argument but nonetheless reversed a lower court ruling against Martinez.

Judge Erin Peradotto, the appeals court's lone female judge, wrote the decision, saying the state had, 'for well over a century,' recognized marriages solemnized outside the state, with two exceptions. Those exceptions, she said, were marriages that involved incest or polygamy, and marriages explicitly prohibited by state law.

The state had argued that a ruling against same-sex marriage in 2006 by the state's highest court effectively expressed a state policy prohibiting same-sex marriages. But the appeals court said that decision, in Hernandez v. Robles, did not 'articulate the public policy' but 'merely' recognized that the state constitution 'does not compel recognition of same-sex marriages solemnized in New York.' And because the state's highest court indicated that the legislature 'may enact legislation recognizing same-sex marriages,' it 'thereby indicated that the recognition of plaintiff's marriage is not against the public policy of New York.'

'The Legislature may decide to prohibit the recognition of same-sex marriages solemnized abroad,' wrote Peradotto. 'Until it does so, however, such marriages are entitled to recognition in New York.'

James Esseks, litigation director for the LGBT Project of the ACLU, hailed the decision as a 'great step forward for same-sex couples in New York.' But he said it also put the ball in the state legislature's court to set a policy of non-discrimination against gay couples. Presumably, the legislature could also pass a policy that opposes recognition of same-sex marriages.

Martinez had been employed as a word-processing supervisor by the college since 1994 and had been in a relationships with Golden since 2000.

Attorneys for the college have not yet made a determination on whether to appeal the decision.

Several thousand same-sex couples from the United States have obtained marriage licenses in Canada, but there are no official estimates on the number of those from New York State. The national Freedom to Marry organization based in New York estimates that about 51,000 same-sex relationships in the state.

© Lisa Keen. All rights reserved.


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