Legal Canada - NY State accepts Canadian gay marriages

October 13, 2004

NY state accepts Canadian gay marriages
Retirement system sets the precedent

Today, information was made public by a New York civil rights organization showing that the New York State and Local Retirement System will treat Canadian marriages of same-sex couples the same as any other marriage for purposes of retirement benefits and obligations. A press release from the Empire State Pride Agenda says this makes the retirement system the first state program in New York to respect all marriages equally.

The decision was made by New York State Comptroller Alan G. Hevesi, whose office has jurisdiction over the retirement system. It was communicated in a letter dated October 8 from the Comptroller to Mark Daigneault, a state employee who wrote in September asking how getting married in Canada would affect retirement benefits for him, his same-sex partner and their two children.

In Comptroller Hevesi's letter, he tells Daigneault, "Based on current law, the Retirement System will recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage, under the principle of comity. That principle has been legal practice pursuant to New York Court of Appeals rulings for many years."

The response to Daigneault, which includes a cover letter from Hevesi and an accompanying letter from Counsel to the Retirement System George S. King, provides the legal history and justification behind the Comptroller's decision and describes how being married will affect Daigneault's retirement benefits. The letter also details the rights of current and former spouses in regards to retirement benefits.

After receiving the Comptroller's letter, Mark Daigneault said, "I am happy to learn that my family will be given the same support and protection that all other families receive through the retirement system. As a dad and a spouse, I want to protect the ones I love in every way possible. I'm glad the Comptroller recognizes that all families need the same protections."

Daigneault is an employee with the New York State Insurance Department and is in a long-term committed relationship of thirteen years with his same-sex partner. They are raising two adopted children.

"The Comptroller has simply interpreted the law as Attorney General Eliot Spitzer [see our March 5, 2021 report] and at least one trial court has read it, which is that New York comity law requires that legal marriages from other jurisdictions, including marriages of same-sex couples, be fully respected here in New York State," said Ross Levi, Pride Agenda Director of Public Policy and Governmental Affairs. "

New York State law is clear; marriages validly executed in other jurisdictions must be respected in this state," said Alphonso David, Staff Attorney with Lambda Legal, the nation's oldest and largest LGBT legal rights advocacy organization. "The Comptroller's action complies with the law and will yield far-reaching benefits to married same-sex couples who were previously restricted from necessary cost of living adjustments, pension and death benefits. Other state agencies and local municipalities must follow this lead to eradicate all governmental discrimination against married same-sex couples in New York."

"Over the past year, hundreds of same-sex couples have traveled to Canada to get married," said the Pride Agenda's Ross Levi. "They have returned home and are now 100 percent legally married in New York State. They are asking their employers, their local governments, their state and companies they do business with to respect and honor their marriage and many of these public and private players are responding by saying, 'Yes you're married.'"

Comptroller Hevesi's decision is the latest in a series of decisions by elected officials, courts and companies across New York State to treat legal out-of-state marriages of same-sex couples the same way they treat other out-of-state marriages:

• In 2003, a New York County Supreme Court ruled in Langan v. St. Vincent's Hospital of New York in terms of authorizing wrongful death actions that "spouse" can also mean a surviving same-sex partner to a Vermont civil union.
• On March 3 of this year, Attorney General Eliot Spitzer citing New York's comity law said that marriages of same-sex couples performed elsewhere are completely valid in New York State and must be treated as such.
• After Attorney General Spitzer's March statement, elected officials in the municipalities of Nyack, Ithaca, Buffalo, Brighton and Rochester followed suit and fully recognized legal out-of-state same-sex marriages, giving them the same rights as all other marriages within their local jurisdictions.
• In Rochester, for example, surviving spouses of veterans, including same-sex spouses, are entitled to certain types of city licenses and property tax exemptions.
• In the private sector, Lambda Legal has reported that Allstate, State Farm, Geico and Electric automobile insurance companies have agreed to comply with state law and respect the marriages of same-sex couples, providing them with the same rates and coverage as married opposite-sex couples.