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Same-Sex Marriage.” Id NEW YORK STATE BAR ASSOCIATION SPECIAL COMMITTEE ON LGBT PEOPLE AND THE LAW REPORT AND RECOMMENDATION ON MARRIAGE RIGHTS FOR SAME-SEX COUPLES MAY 4, 2009 This report was approved by the House of Delegates of the New York State Bar Association on June 20, 2009. TABLE OF CONTENTS Page Executive Summary....................................................................................................................... 1 PART ONE Marriage, Civil Union, Domestic Partnership Outside New York..................................... 9 I. Marriage................................................................................................................. 9 A. Massachusetts ............................................................................................ 9 B. California ................................................................................................. 12 1. The Majority Opinion (by Justice George).................................. 13 2. Concurring Opinion (by Justice Kennard)................................... 17 3. The Baxter Dissent....................................................................... 17 4. The Corrigan Dissent ................................................................... 18 5. Post-ruling Initiative Overturns Access to Marriage for Same-Sex Couples (Proposition 8) ............................................. 19 C. Connecticut .............................................................................................. 22 1. The Majority Opinion (by Justice Palmer) .................................. 23 2. The Borden Dissent...................................................................... 27 3. The Vertefeuille Dissent .............................................................. 29 4. The Zarella Dissent...................................................................... 29 5. Post-Ruling Developments .......................................................... 30 D. Iowa.......................................................................................................... 31 E. Vermont ................................................................................................... 39 F. Maryland.................................................................................................. 41 1. The Majority Opinion (by Judge Harrell).................................... 41 2. The Raker Dissent........................................................................ 42 3. The Battaglia Dissent................................................................... 43 4. The Bell Dissent........................................................................... 44 G. Pending Marriage Legislation.................................................................. 44 H. International ............................................................................................. 45 1. Canada.......................................................................................... 46 2. Spain ............................................................................................ 46 3. South Africa................................................................................. 47 4. Nepal............................................................................................ 48 -i- TABLE OF CONTENTS (continued) Page 5. Norway......................................................................................... 50 II. Civil Unions and Domestic Partnerships in the United States............................. 50 A. Vermont ................................................................................................... 51 B. New Jersey............................................................................................... 57 C. New Hampshire ....................................................................................... 61 D. Oregon...................................................................................................... 62 E. Maine ....................................................................................................... 63 F. Washington State..................................................................................... 63 G. International ............................................................................................. 64 1. Mexico ......................................................................................... 64 2. Colombia...................................................................................... 65 3. United Kingdom...........................................................................66 4. Other Countries............................................................................ 68 a. Hungary............................................................................ 68 b. Israel................................................................................. 68 c. Andorra ............................................................................ 69 III. Rejection of Marriage Rights For Same-Sex Couples......................................... 69 A. The Defense of Marriage Act and the Mini-DOMAs.............................. 69 1. The History and Terms of the DOMAs ....................................... 69 2. Legal Challenges to the Federal DOMA ..................................... 74 3. Legal Challenges to Anti-Marriage Constitutional Amendments ................................................................................ 76 a. Georgia............................................................................. 76 b. Oklahoma......................................................................... 77 c. Wisconsin......................................................................... 80 d. Nebraska .......................................................................... 80 B. International Anti-Marriage Actions Since 2004..................................... 81 PART TWO Marriage Developments in New York ............................................................................. 84 I. Hernandez v. Robles (New York Court of Appeals, 2006) ................................. 85 -ii- TABLE OF CONTENTS (continued) Page A. Majority Opinion (Judge Smith).............................................................. 86 1. Rational State Interests ................................................................ 86 2. No Prejudicial Motivation............................................................ 87 3. Due Process.................................................................................. 88 4. Equal Protection........................................................................... 90 B. The Graffeo Concurrence ........................................................................ 92 C. The Kaye Dissent..................................................................................... 96 1. Due Process.................................................................................. 96 2. Equal Protection........................................................................... 97 a. Heightened Scrutiny.........................................................97 b. Rational Basis Analysis ................................................... 99 II. New York State Legislative Action and Pending Proposals.............................. 102 III. Recognition in New York of Out-Of-State and Foreign Marriages .................. 107 A. Background: Principles of Full Faith and Credit and Comity .............. 107 B. Martinez v. County of Monroe............................................................... 110 C. Governor Paterson’s Directive to State Agencies to Recognize Out-of-State Marriages of Same-Sex Couples....................................... 111 D. Additional Executive Orders.................................................................. 114 1. Opinion of the New York State Comptroller (2004) and Godfrey v. Hevesi....................................................................... 114 2. Order of the Westchester County Executive (2006) and Godfrey v. Spano........................................................................ 115 3. Order of the New York State Department of Civil Service (2007) and Lewis v. State Dep’t of Civil Services...................... 116 a. Majority Opinion (Judge Rose) ..................................... 117 b. The Concurrence (Judge Lahtinen)................................ 120 IV. Other New York Judicial Developments Affecting Same-Sex Couples ........... 121 A. Dissolution of Legal Unions .................................................................. 121 B. Parental Rights Upon Dissolution.......................................................... 122 C. Survivors’ Claims .................................................................................. 127 -iii- TABLE OF CONTENTS (continued) Page PART THREE Civil Union/Domestic Partnership and Marriage: A Comparative Analysis ................ 131 I. The Problems with Civil Unions........................................................................ 132 A. Civil Unions Are Not Well Understood................................................. 132 B. Civil Unions Pose Substantial Disadvantages In Medical Settings....... 136 C. Civil Unions Do Not Remedy Disadvantages At Work ........................ 139 D. Civil Unions Create Disadvantages Crossing State Lines ..................... 141 1. General Portability..................................................................... 141 2. Recognition in New York State ................................................. 142
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