Thursday, November 19, 2009

Court of Appeals: Benefits OK for Gay Couples Married Elsewhere

New York's highest court unanimously gave the green light to health insurance and other benefits for married same-sex couples. It ruled that same-sex partners who were married in other states, and are public employees in New York, may be provided all the public employee benefits to which opposite-sex married spouses are entitled.

The Court's vote was actually 4 to 3. There was a majority opinion, and a separate concurrence. Both opinions embraced the Court's ruling. But the majority took a narrow approach; the concurrers took a broader one.

At issue were a pair of orders--one by Westchester County and the other by the state's Department of Civil Service. In brief, both orders required that married public employees within their respective jurisdictions be treated equally with regard to benefits. Whether those employees be spouses in an opposite-sex marriage, or in a same-sex marriage performed where such marriages are legal, the employees were ordered entitled to the same benefits.. The majority of the Court of Appeals upheld those orders--period. The separately concurring Judges voted to go farther and would have recognized the out-of-state same-sex marriages as entirely legal and equal marriages in New York.

Beyond the strict legal ruling, there are some fascinating aspects of this case. The 4 to 3 division on the Court, for example. It was a straight party-line vote. The 4 Judges in the majority are all appointees of Republican Governor George Pataki. The 3 Judges who concurred in a separate opinion are all Democratic appointees. The 4 Republican appointees--Eugene Pigott, who authored the majority opinion, Victoria Graffeo, Susan Read, and Robert Smith--took the narrow approach. They voted only to uphold the specific 2 orders in questions. The 3 Democratic appointees--Carmen Ciparick, the remaining Governor Mario Cuomo appointee and author of the concurring opinion, Jonathan Lippman, Governor David Paterson's appointee as Chief Judge, and Theodore Jones, Governor Eliot Spitzer's appointee--took the broader approach. They voted to give wholesale recognition to out-of-state same-sex marriages, treating them the same as opposite-sex married couples under New York law.

So the narrow versus broad approaches, the limited versus unlimited equal treatment of same-sex marriages fell along political lines. And ideological lines as well. As discussed in numerous previous posts on New York Court Watcher, the ideological lines on the Court are clear, even if not as well-defined as the party lines are. Lippman, Ciparick, and Jones each have markedly liberal voting records. Graffeo and Read are very dependable conservative votes. Pigott and Smith, both somewhat less predictable (or less reliable or more erratic--depending on whether one likes or dislikes their voting patterns), are nevertheless somewhat more conservative overall than are the liberals. In this case, the votes lined up--more conservative versus more liberal--exactly as one might guess without even considering the legal arguments.

Also notable are the opinions themselves. Both superb. Let's start with that. Both the majority by Pigott and the concurrence by Ciparick are clearly, strongly, civilly, and persuasively argued. They are the kinds of opinions that characterize a strong court. We saw the same recently in the GPS automobile-monitoring case (See Court of Appeals: 4-3 Majority Holds GPS Surveillance Requires Warrant Supported By Probable Cause, May 12, 2009) and in the Lieutenant Governor case--I know that some strongly disagree with me on this one (See NY Court of Appeals: The Paterson v. Skelos Decision--The Judges, Politics, Votes, and Opinions, Sept. 22, 2009). In both those cases, as in today's Godfrey decision, the opposing opinions were lucid, well argued, and evinced the closeness and delicacy of the issues on which the Judges disagreed.

(If the foregoing sounds like bootlicking, I would plead guilty to how it sounds, but remind the reader of my, perhaps, more typical and disagreeable penchant for somewhat unvarnished criticism. I just really believe these opinions were excellent.)

It should also be noted that the Court's 2006 decision in Hernandez v. Robles was not affected. Well, at least not officially and formalistically.

Recall that the Court in that case rejected the claim that New York's restriction of marriages to opposite-sex couples violated equal protection and due process. (For related discussions on New York Court Watcher, see Notable Miscellany: Iowa Equalizes Marriage, New York Questions GPS Surveillance, and the Supremes Dilute Anti-Discrimination (Part 1 - Iowa), April 7, 2009; and New York Court of Appeals: Connecticut Supreme Court's Same-Sex Marriage Decision Adds to the Embarrassment, Oct. 11, 2008.) No, that decision was not affected by today's Godfrey decision about benefits.

But, it is very notable how the Court characterized the Hernandez decision. Not as an expression of New York policy against same-sex marriages. Not as a necessary prohibition against same-sex marriages. But as simply stating that the New York Constitution "does not require that marriage licenses be granted to same-sex couples" [the majority opinion], or "does not compel the recognition of same-sex marriages performed within the State" [the concurrence]. And the state legislature is urged to address the issue--much as Judge Graffeo had urged in her concurring opinion in Hernandez.

It should also be mentioned that the plaintiffs challenging the 2 benefits-for-same-sex-couples orders in Godfrey were represented by the Alliance Defense Fund from Arizona. This organization, which litigates cases nationwide, stands for human life, religious freedom, and family values. Of course, their meaning of human life is anti-right to choose [but apparently pro-death penalty for juvenile offenders]. Of religious freedom is a lowered or levelled wall of separation between church and state. Of family values is anti-gay and lesbian rights. Their website decries today's Godfrey decision for the Court's failure to reject out-of-state same-sex marriages outright.

Finally, and related to the latter point, let me disclose that I firmly support recognition of these out-of-state marriages and, indeed, firmly support same-sex marriages period. As for the Godfrey case itself, I would have been more pleased if the Court had gone along with Judge Ciparick's opinion. (Truth be told, I usually agree with Judge Ciparick.) But strictly on the legal issue presented, and as a matter of perhaps--and only perhaps--more prudent restraint and deference to the legislature, I think that Judge Pigott's approach for the majority is probably more correct. But again, only perhaps! (OK, so I'm torn.)

In the next posts, New York Court Watcher will return to New York criminal appeals and the Supreme Court on discrimination.