Gays wed in Canada can get state benefits
New York retirement system recognizes legal unions, comptroller rules
By ERIN DUGGAN, Capitol bureau
First published: Thursday, October 14, 2004
ALBANY -- Same-sex couples who legally wed in Canada will be considered married in the eyes New York's retirement system even though such unions cannot be performed in the state, under a decision by Comptroller Alan Hevesi.
Hevesi, the sole trustee of the state retirement fund, noted that his decision does not apply to same-sex ceremonies performed in other states, an issue he said is more complicated.
But his ruling was considered an important victory for same-sex marriage advocates in a year when the issue has drawn attention across the state and nation.
Hevesi's Oct. 8 decision, disclosed Wednesday, came after an inquiry from Mark Daigneault, an Insurance Department employee and father of two, on whether his planned wedding in Canada would make his longtime partner entitled to spousal benefits.
"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," Hevesi wrote.
Hevesi's ruling is based on a principle called comity, in which states voluntarily recognize the laws of other governments or municipalities. For example, New York does not have common law marriage, under which people are considered married after they have lived together as a married couple for a period of time. But New York recognizes common law marriages from other states.
The law recognizing same-sex marriages is less clear from state to state, because the 1996 Defense of Marriage Act allows states to not recognize unions performed in other states. But that act did not address foreign marriages.
"If the request came from a retiree marrying in another state, the issue would be much more complicated," Hevesi said.
Six provinces or territories in Canada have legalized same-sex marriage, including Quebec, Ontario and British Columbia.
"As a dad, I'm looking out for my family and protecting my sons," said Daigneault, who had a commitment ceremony with his partner 10 years ago. The couple adopted two sons.
Under the state retirement system, retirees have two options: collect a higher pension that ends when the retiree dies, or collect smaller payments that continue to be paid to a beneficiary if the retiree dies first. The beneficiary can be anyone, but only a spouse will get a cost-of-living adjustment, or an accidental death benefit.
Same-sex marriage in New York is an ongoing issue, as advocates push for its legalization, and opponents say New York should join the majority of states that ban it. Different bills to permit gay marriage or to prevent it didn't move this year in the state Legislature, which is divided on the issue.
Gov. George Pataki, Senate Majority Leader Joseph Bruno and Assembly Speaker Sheldon Silver all said they believe marriage is between a man and a woman, but do not support amending the state's constitution. Spokesmen for all three had no immediate comment on Hevesi's letter.
The gay marriage issue has been at the forefront of public attention this year after Massachusetts began performing same sex marriages and various public officials around the country, including the mayor of New Paltz, followed suit. On Sept. 31, the U.S. House of Representatives followed the U.S. Senate's July lead in voting down a proposed Constitutional amendment banning same-sex marriage.
That victory for supporters of gay marriage came in contrast with defeats this summer in two states, Missouri and Louisiana. Voters in both of those states, which already had passed their own defense of marriage acts, overwhelmingly approved constitutional amendments banning same-sex marriages, with more than 70 percent of voters supporting the bans.
Gay marriage opponent Steve Kidder, executive director of the Albany-based New York Family Policy Council, was unhappy to hear of Hevesi's ruling.
"I would probably consider challenging that in court, out of principle," he said. Because New York law has so far defined marriage as a union of a man and a woman, Kidder said that criteria should be applied regardless of where the ceremony is performed.
Much of the gay marriage debate is moving through uncharted legal territory. The issues are largely being decided on a case-by-case basis, as people like Daigneault fight for the rights and responsibilities given to heterosexual married couples.
The next step, according to Empire State Pride Agenda's Ross Levi, is to make sure government bodies are treating same-sex couples equally to heterosexual couples. It's impossible to know, he said, unless couples test their rights.
Daigneault said he and his partner will likely marry in Quebec, but they haven't set a date.
"We've got soccer games and school functions to work around," he said.
Erin Duggan can be reached at 454-5091 or by e-mail at eduggan@timesunion.com.
