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170 New Yorkers' Gay Marriages Upheld

Wednesday, May 16, 2007

By DENISE LAVOIE, Associated Press Writer

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BOSTON — 

The marriages of more than 170 gay couples from New York who wed in Massachusetts before last July are valid because New York had not yet explicitly banned same-sex marriages, a Massachusetts judge ruled.

Couples are barred from marrying in Massachusetts if their marriages would be prohibited in their home states. The New York Court of Appeals ruled against same-sex marriages on July 6, 2006.

Gay & Lesbian Advocates & Defenders had asked for clarification of the status of New York couples who married in Massachusetts before that ruling. Massachusetts became the first state in the country to allow gay marriage in May 2004.

Suffolk Superior Court Judge Thomas Connolly ruled last week that those early marriages are legally valid.

"Just being able to say without any qualifications _ 'we're married' _ it feels great," said Amy Zimmerman, a New York City resident who married Tanya Wexler in Somerville on May 19, 2004, the third day same-sex weddings were allowed in Massachusetts.

A spokesman for New York Attorney General Andrew Cuomo indicated that his office considers the marriages at issue valid.

"Since 2004, it has been the position of the attorney general's office that New York law presumptively requires the recognition of marriages validly performed in other jurisdictions," John Milgrim said. The opinion he cited came from Cuomo's predecessor, Gov. Eliot Spitzer.

New York state has recognized same-sex marriages in some cases _ those performed in Canada, for instance, are considered in determining public employees' retirement benefits. But in 2005 a state appeals court ruled that a man could not sue a hospital for malpractice in the death of his longtime partner, despite their civil union in Vermont.

Michael Long, who heads New York's Conservative Party, predicted Connolly's ruling will not hold up in New York if gay couples press for marriage rights there.

"It's wishful thinking by some homosexual couples that the interpretation of a particular judge will change their status," Long said. "The law in the state of New York is very clear _ marriage is between a man and a woman."

Although the Massachusetts Supreme Judicial Court said in March 2006 that gay couples from states with no "express prohibition" of same-sex marriage could marry in Massachusetts, it was unclear at that time whether gay marriage was specifically banned in New York and Rhode Island.

Connolly ruled in September that gay couples from Rhode Island have the right to marry in Massachusetts because laws in their state do not expressly prohibit same-sex marriage. Whether Rhode Island honors those marriages is an unsettled issue; its Legislature has rejected same-sex marriage, but its attorney general issued a nonbinding opinion this year advising his state to recognize those conducted in Massachusetts.

Susan Sommer, senior counsel for Lambda Legal, a New York-based gay rights organization, said New York common law has held that as long as a marriage is valid where it is performed, it will be respected in New York.

"Not everybody along the way has agreed _ there's been some litigation around it _ but the clear direction is one of growing respect and recognition," she said.

Spitzer, a Democrat, has proposed that gay marriage be legalized, but so far has failed to convince either the Republican-led state Senate or the Democratic-controlled state Assembly to do so.

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