"Absolutely Abhorrent"

Using a portion of New York law that forbids recognizing out-of-state marriages that are "absolutely abhorrent" to state policy, such as polygamous marriages or those between blood relatives, the Arizona-based Alliance Defense Fund is taking another run at New York's recognition of gay couples legally married in other jurisdictions.

New York's recent policy change granting health benefits to spouses of gay state workers was challenged Wednesday in a midlevel appeals court, where opponents said it was a fundamental change in social policy that only lawmakers can enact. "That may change in New York, but it has to be left to the democratic process," said Brian Raum, a lawyer representing four upstate taxpayers. He said the governor lacks the authority to apply measures "completely at odds" with existing law and public policy.

The policy change initiated in May 2007 under then-Gov. Eliot Spitzer affects spouses of state and municipal workers married in Canada, Massachusetts, California and other places where same-sex ceremonies are legal. Raum, also senior counsel for the Christian-based Alliance Defense Fund, argued before five justices of the Appellate Division that the state Department of Civil Service, on behalf of the governor, was wrong to enact the policy. By law, the only marriages that can be performed legally in the state are between a man and a woman, he said.

"To change the fundamental components of marriage would be at odds with the policy of the state of New York," Raum said. He argued the state Constitution does not give the governor that power. Justices asked whether the issue here wasn't "comity," the doctrine of recognizing legal actions from other jurisdictions that recognize legal actions from New York. Raum replied there are exceptions, like actions that would be "abhorrent," or "strongly opposed" to existing policy in New York, and this is one of those.

The Alliance Defense Fund recently lost a similar bid to overturn Gov. David Paterson's edict that state agencies must recognize legal gay marriages. They also lost their attempt to stay the California Supreme Court's May ruling legalizing gay marriage there. I'll report the result of this latest petition once the court rules.