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On June 24, 2011 Governor Andrew Cuomo signed into law the right of same sex couples to get marriage licenses. The law will go into effect on July 24, 2011. New York will be the sixth and the most populous state (19.4 million residents) to do so. Iowa, Vermont, New Hampshire, Massachusetts and Connecticut issue marriage licenses to same-sex couples, as does the District of Columbia.

Many believe that the passing of the law gives momentum to ending marriage discrimination at the state and federal level. Prior to the passing of the law most New York City employers already offered equal benefits to couples in domestic partnerships. Many see the federal recognition of same sex marriage as an uphill battle. Matter of fact in 2006, the New York Court of Appeals ruled that there is no constitutional right to same-sex marriage in New York. Some opponents of same sex marriage support a U.S. constitutional amendment defining marriage as between a man and a woman.  Matter of fact, gay marriage is banned in 39 states in this country.

Another complicated legal issue is the legal rights New York same sex couples are afforded in states that do not recognize same sex marriage. Two constitutional principles arise, full faith and credit and equal protection. The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States.Although the Full Faith and Credit Clause has been applied to family issues such as Order of Protection, the Violence Against Woman’s Act, and child support it is unlikely, unless the Supreme Court strikes down all laws banning gay marriage, that States are going to be required under Full Faith and Credit to recognize any marriage they don’t want to.  Presumably states that don’t recognize gay marriage will be expected to recognize gay marriage pursuant to the equal protection clause.

It is clear that most of the opponents of gay marriage based this opposition upon moral or religious grounds. As a way to balance the various interests involved, an agreement was reached on more protections for religious groups that oppose gay marriage and fear discrimination lawsuits.

The Gilmer Law Firm, PLLC drafts prenuptial agreements (“prenup”), cohabitation agreements and practices matrimonial law. Please stay tuned for future articles in these areas.  I have over ten years of legal experience.  Contact me if you have any other questions concerning same sex marriage.