Recognizing out-of-state same-sex marriages for
purposes of public employee health insurance coverage and other benefits ruled
Godfrey v Spano, 2009 NY Slip Op 08474, Decided on November 19, 2009, Court of Appeals [Decided with Lewis v New York State Department of Civil Service]
Plaintiffs in this action are taxpayers challenging directives recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits.* The Court of Appeals held that that plaintiffs' actions were properly dismissed by the courts below.
Many residents of New York State in a same-gender relationship have traveled to Massachusetts, Connecticut, Iowa and Vermont, jurisdictions permitting same-gender marriage, for the purpose of marrying.
In response to this development, several state and county officials issued general directives relating to the recognition of those out-of-state same-sex marriages.
This appeal involved challenges to the lawfulness of two such directives: a Policy Memorandum, Employee Benefits Division Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service, which became effective May 1, 2007* and an Executive Order issued by the County Executive of the County of Westchester, Westchester County Executive Order No. 3 of 2006.**
However, the Court of Appeals commented with respect to the action brought by Godfrey that it did adopt the Second Department's rationale for affirmance of the Supreme Court’s ruling, i.e., the Executive Order did not purport to change the law, because it included language directing recognition of same-sex couples "to the maximum extent allowed by law."
The high court said that it found such language ambiguous, and it said it “would not encourage executive officials to try to insulate their orders from judicial review by this means.” Instead the Court of Appeals sustained the result “because the Godfrey plaintiffs have failed to allege an unlawful expenditure of taxpayer funds, they have not stated a cognizable claim under General Municipal Law §51.”
As to the Lewis plaintiffs, the Court of Appeals noted that the only surviving causes of action were based on State Finance Law §123-b and the separation of powers doctrine.
As to Finance Law § 123-b, the court said although a taxpayer may bring suit under this statute to prevent the unlawful expenditure of state funds "whether or not such person is or may be affected or specially aggrieved" (State Finance Law §123-b ), there must be some specific threat of an imminent expenditure. In this instance the Court of Appeals ruled that “The State Finance Law claim of the Lewis plaintiffs fails to state a cause of action for the same reason that the General Municipal Law § 51 claim of the Godfrey plaintiffs fails.
Addressing the Lewis plaintiffs' action based on the separation of powers doctrine, essentially the complaint alleges that the Department of Civil Service acted "inconsistently with the Legislature's pronouncements on spousal benefits" and was thus in violation of Civil Service Law §164. In the words of the Court of Appeals: “The statute itself refutes plaintiffs' claim.”
Civil Service Law §161(1) provides that the President of the Civil Service Commission is "authorized and directed to establish a health insurance plan for state officers and employees and their dependents and officers" and provides that every state employee "shall be entitled to have his spouse and dependent children, as defined by the regulations of the president, included in the coverage upon agreeing to pay his contribution, if any, to the cost of such coverage for such dependents" (emphasis in the original).
Accordingly, said the court, the statute thus expressly gives the President of the Civil Service Commission the authority to define "spouse."
Moreover, said the court, the statute does not restrict the President's provision of health insurance to spouses and dependent children. The language is of entitlement, not restriction.
The Court of Appeals concluded by stating that "in each case the order of the Appellate Division should be affirmed with costs."
* The decision notes that “The Memorandum explained that the State had provided eligibility for employee benefits, including New York State Health Insurance Program benefits, to the domestic partners of State employees, including same-sex partners, since the mid-1990s. The coverage, while mandatory for the State, as an employer, itself, providing such coverage was discretionary for Participating Agencies (PAs) and Participating Employers (PEs).”
** The New York State Employees’ Retirement System recognized “same-sex marriages” for retirement benefit purposes if the union was performed in a jurisdiction where performing a same-sex marriage was lawful. It successfully defended a lawsuit challenging that policy [Godfrey v DiNapoli, 22 Misc.3d 249]. In the Godfrey case the jurisdiction was Canada.
The decision is posted on the Internet at: