Alan Hevesi, the Democratic state comptroller, late last week vowed a “vigorous defense” against a lawsuit filed in Westchester County challenging his office’s policy of recognizing same-sex marriages from Canada and other jurisdictions for purposes of eligibility under the state employee retirement funds.
Through the New York State and Local Retirement System, the comptroller oversees a pension system for 334,000 retirees and 648,000 employees still on the job. In late 2004, Hevesi announced that employee spouses in same-sex marriages from Canada and elsewhere would receive the same treatment as any other legal spouse under the program. Under pension system provisions, surviving spouses receive certain benefits not available to other beneficiaries of deceased public employees, including an accidental death benefit and a cost-of-living adjustment to monthly pension payments.
Four Westchester residents affiliated with the Alliance Defense Fund, a right-wing group that actively challenges gay rights and benefits programs nationwide, filed the lawsuit.
Hevesi’s 2004 announcement that his office would recognize legal same-sex marriages from other jurisdictions followed an advisory opinion issued earlier that year by Democratic Attorney General Eliot Spitzer that constitutional standards and judicial precedent in New York compels the state to recognize valid marriages from out-of-state even though marriage by a same-sex couple is not legal here. Spitzer explained that the distinction was based on the principle of “comity” by which one state recognizes the contracts of other states. Marriage by a person too young to wed here but legal in another state, for example, would be recognized by New York. Spitzer explained that any marriage “not abhorrent” to the public policy of New York should get recognition.
In 2005, Mayor Michael R. Bloomberg, a Republican, announced a similar policy regarding city pension funds, and extended recognition to couples with civil unions from Vermont and Connecticut.
In three recent court decisions, two at the trial level and one from an intermediate appellate court, efforts to enforce spousal rights by partners married in Canada or in a Vermont civil union have been rejected. Those cases are likely to find their way to the Court of Appeals, the highest in the state.
It may be that the challenge to the Hevesi policy would be implicated in any such high court resolution.
One unknown is how the July Court of Appeals ruling finding no constitutional basis in New York for marriage equality impacts this related, but potentially distinct legal issue. If Spitzer’s 2004 advisory opinion stands up, the Hevesi and Bloomberg policies would presumably be upheld.
“I have for many years believed that lesbians and gay men should have the right to marry in New York,” Hevesi said last week, in a written statement. “But our October 2004 decision was a strictly legal determination based upon statutes and case law, not on my personal opinion.”