Thursday, February 24, 2011

Another New York appeals court recognizes a same-sex Canadian marriage...and a reminder about what the DOJ announcement is NOT about

The New York Supreme Court Appellate Division, First Department, ruled today that the marriage between a decedent and his surviving partner in Canada is entitled to be recognized in New York. (To read the opinion, In re Estate of Ranftle, you need to click here and scroll down to page 8). The couple, J. Craig Leiby and H. Kenneth Ranftle, married in Canada in June 2008, and in August 2008, Ranftle wrote a will. After Ranftle died, Leiby sought to probate the will as his surviving spouse and was opposed by the decedent's brother. The trial court found the marriage subject to recognition in New York, and in this opinion the appeals court affirms.

This opinion is a timely reminder of what yeseterday's Obama administration announcement does not mean. DOJ will no longer defend the constitutionality of DOMA Section 3, the section that denies federal recognition to validly married same-sex couples. Section 2 of DOMA says that states are not required to recognize same-sex marriages from elsewhere. The DOJ announcement is silent on Section 2, because it is not an issue in the pending cases that prompted the DOJ announcement.

Any family law scholar will tell you that DOMA Section 2 was unnecessary, because the rule of law even without it is that a marriage valid where performed will be recognized in a state unless it violates the strong public policy of the state.

In the Rantfle case, the opinion simply recites that rule, notes that New York does not have a specific statute (as the vast majority of states do) refusing to recognizing same-sex marriages from elsewhere, and then concludes that it is not against "natural law" to recognize such marriages. Short and sweet.

In states with statutes refusing recognition to same-sex marriages from elsewhere (here is a chart), a court would not treat Leiby as Ranftle's surviving spouse. Nothing in yesterday's DOJ announcement changes that. At some point there will be a constitutional challenge to such non-recognition. One way the United States could be a party is that a couple could marry, go home to a state that does not recognize them, and then try to get some federal benefit. The federal government goes by state law to determine if you are married, and the couple could claim that by not treating them as married the state they live in is violating the constitution. The administration would have to take some stand on the matter.

But it's more likely that the couple will seek some recognition in their state, in which case the United States won't be a party at all, and we would expect most state courts to uphold the state DOMA. All this will be interesting litigation to come. Meanwhile, New Yorker get one more piece of support for the validity of the marriages they enter outside New York.


Spencer Hamilton Blog said...

Thank you for this post! I do hope DOMA and mini DOMAs are struck down but it'd have to be done by the court. Thanks for leaving the opinion link in there, as a regular guy that likes reading these I just love how the judges tend to paint a picture and cite cases.

Thanks so much
Spencer Hamilton Blog

George Vreeland Hill said...

When two people get married, it is because they love each other.
They want to be together in a bond that makes them one with each other forever.
It is a wonderful thing to have such a bond.
It is special.
It is love.
When a man and a woman get married, no one blinks an eye.
If two men or two women do the same, then many people do not approve.
They claim that it is not right or that it soils the real meaning of marriage.
What is the real meaning of marriage?
The answer to that question is in line one of this article.
It is because they love each other.
Does it matter if the couple is gay or straight?
Should it matter?
After all, why should it.
Gays want their equal rights and among those equal rights is the right to be married.
I agree with wanting equal rights.
We are all people which means we are all the same.
It does not matter if someone is gay, white, black, a man, a woman, tall, short, young, old or whatever.
We all want our equal rights.
That is our right.
However, we need to go beyond equal rights when it comes to gay marriage.
Society needs to understand that any marriage is not about the right to be married.
It is about wanting to be married as a loving couple.
Love is not something that should be decided on by voters.
It is not a court issue either.
It should not be an issue at all.
Marriage is between two people in love.
It is not between two people, the voters, the courts and anyone else who has an opinion.
Gay marriage does not bring down the meaning of marriage.
It makes the true meaning of marriage even better.
That is what love does.
It makes things better.
Society has come a long way in the last fifty years in terms of equality, but we still have a long way to go.
It is a shame that love is something that needs to be fought for.
I am not gay, but I am the same as you as you are to me.
May love conquer all.

George Vreeland Hill

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