New York Passes Marriage Equality Bill

Recently, New York became one of a growing number of states to recognize same-sex marriages through legislation.

The New York statute refers to "marriage" rather than "civil unions."  This terminology is important for more than just symbolic reasons.  A married couple automatically gets the rights (and responsibilities) of marriage, while the legislature has to pick and choose what goes into a civil union.  Despite New York's move, however, uncertainties and difficulties remain for some same-sex couples.

The New York statute contains an exception for religious institutions.  Certainly, the exception means that religious officiants will not be required to perform same-sex marriages if their religious tenets prohibit it.  Such an exception seems reasonable, if not possibly required by the First Amendment.  However, the exception also appears to immunize religious institutions and charities from discrimination lawsuits if they discriminate against same-sex married couples in public accommodations.  In other words, the courthouse doors may be closed to same-sex married couples in discrimination cases where they would be open to different-sex married couples.  Such an exception would seem to be an extraordinary setback for same-sex couples.  Time will tell how far-reaching this language actually extends.

Many states have a residency requirement to obtain a marriage license.  New York does not.  However, out-of-state couples may not want to go to New York to get married.  Problems may arise when they return to their home state.

A same-sex couple married by the State of New York may find it of limited benefit to them in their home state.  Many states have passed "Defense of Marriage Acts" or similar constitutional amendments.  These acts and amendments generally prohibit same-sex marriage in the state, refuse to give full faith and credit to out-of-state same-sex marriages, and deny same-sex couples any "marriage-like" benefits.  In such states, the New York marriage may be only symbolic.

A more complicated problem can occur if the same-sex couple splits up.  The DOMA state often denies the couple the right to divorce, calling that a benefit of marriage.  New York may not have jurisdiction to dissolve the marriage, either because the couple never resided there or because the couple moved away.  In this all-too-common situation, the couple is stuck remaining married because they cannot get a divorce anywhere.

President Barack Obama has said that same-sex marriage should be an issue for states to decide.  However, the situation is not that convenient.  The federal government has to decide the marriage question in many of its own circumstances:  immigration, survivor benefits, and income tax filing, to name a few examples.  Currently, the federal DOMA denies married same-sex couples access to those federal incidents of marriage.

Despite these limitations, New York's decision to recognize same-sex couples' right to marriage is significant.  The full text of the original bill is available here.