New York Court Grants Same–Sex Divorce

Special Report - October 28, 2008
On Tuesday, October 14, a New York Supreme Court Justice ruled a petition for divorce filed by a lesbian couple could proceed, even though the State of New York does not grant “same-sex marriages.” Two New York women were married in Massachusetts in 2005, at a time when Massachusetts prohibited out-of-state couples from being married in the state if the marriage would be invalid in their home state. That statute was repealed in 2008.

The couple later filed for divorce at home in New York County. New York has neither a law prohibiting nor allowing same-sex marriage in the state. Based on appellate court reasoning and precedent in two separate New York cases involving same-sex couples married in Canada, Justice Rosalyn Richter allowed for the divorce proceedings to continue. In 2008, the New York Appellate Division, 4th Department, ruled in Martinez v. County of Monroe that the absence of any legislative prohibition on the recognition of same-sex marriages allowed them to be recognized if they were valid in the jurisdiction where they were performed. In this case, Justice Richter determined that the “same-sex marriage” was valid in the state of Massachusetts, and so the Full Faith and Credit Clause in the U.S. Constitution required New York to recognize the marriage for purposes of granting a divorce. She went on to state that there was “no reason to carve out a unique exception for the parties here simply because they are of the same gender.”

“North Carolina, like New York, is subject to a judicial challenge that could force the recognition of same-sex marriage in the State, even though our statutes prohibit recognition of same-sex marriage,” warned Tami Fitzgerald, attorney for the North Carolina Family Policy Council. “The only way to prevent a court from ruling that the Constitution requires recognition of same-sex marriage, is to amend the North Carolina Constitution. The General Assembly must act in 2009 by passing a bill to allow the people of North Carolina to vote on a Constitutional amendment that would protect our families from a forced recognition of same-sex marriage like that seen in Massachusetts, California, Connecticut, and now New York.”

Copyright © 2008. North Carolina Family Policy Council. All rights reserved.