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May Poll Question

Frank Gulino believes that the Court of Appeals is on the brink of recognizing out of state same-sex marriage. What impact will that have on New York’s marriage laws?

Comments (7)

David Hyland:

It's an excellent question.

I doubt that the current legislature will do much, if anything, to make changes to existing law. Most practioners in matrimonial and family law (I am not one of them) will likely seek guidance on a range of issues, including issues about marital dissolution. The Attorney General could issue interpretive guidance but it is not a substitute for real statutory clarity. New Yorkers who wish to enter into a same-sex marriage (or who already have)in a state that outright permits it should not remain in the dark. The state ought to consider overhauling current law, including antiquated divorce requirements. No fault divorce is common in other jurisdictions. Current New York law relating to divorce does little to benefit anyone except lawyers. Not to sound overly cynical or clinical, but matrimonial law is mostly about property rights. As a practical matter, medical care decisions and the unfettered ability of a same-sex legal spouse to visit his or her husband/wife without producing paperwork should lead the agenda. It should also be made clear (I'm arguing against my interest but the U.S. Constitution is clear) that religious institutions that have the power to join a couple in a religiously-based and statute-based marriage will not be compelled to perform a statute-based marriage that conflicts with its religion-based rules about marriage. The flip side is that it must be made clear that individuals with the power to perform civil marriages outside of a religious ceremony are prohibited from refusing to marry a same-sex couple based upon their own personal religious beliefs.

I am overlooking myriad other issues but, again, I do not have much confidence that the legislature will do very much to clarify or change existing statutory law.

Nicholas Russo:

If the Court of Appeals recognizes out of state same sex marriages, it will make passage of a similar law by New York's legislature followed by a governor's signature a virtual certainty.

Clement J. Colucci:

I think it will have next to no influence. As the Spano concurrence made clear, recognizing such marriages is a relatively uncontroversial application of New York's long-standing common-law rule recognizing most marriages lawfully entered into in another state that could not lawfully be entered into here. A swing of a few Senate votes is all it will take to create same-sex marriage in New York, and I doubt that case-law developments will influence that.

Yenrab of Syracuse:

The upshot will be that even more moderates and social conservatives will decide it is time for them to leave this state and to move somewhere that seems more normal to them, like Ohio. Many or most of these are hard-working productive citizens, with engineering or professional degrees, so the resulting economic impact can hardly be positive. But, this will leave fewer voters in New York opposed to SSM legislation, more "in line" with Massachusetts and Vermont.

Richard Tesler:

It will have no impact on our marriage laws at all; but our estate tax collectons will be affected.

Charles Fewell:

This is not my field of expertise, but doesn't the "full faith and credit" clause require recognition of valid out of state marriages,regardless of whether they are same sex couples or couples of different races?

Sherry Narodick:

This article was very insightful and thought provoking. An extremely important and timely topic, sure to be the focus of discussions and seminars.

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