Does New York's Domestic Relations Law authorize same-sex marriages, and must New York recognize same-sex marriages or civil unions performed elsewhere?

Plain-English summary

In early 2004, against the backdrop of the Massachusetts Supreme Judicial Court's Goodridge decision and other same-sex marriage developments around the country, the City of Cohoes and the Town of Olive asked the AG whether the Town Clerk could lawfully issue a marriage license to two same-sex applicants, and whether any circumstances would make a same-sex marriage valid in New York. Solicitor General Caitlin Halligan issued the opinion. It addressed three questions: did the Domestic Relations Law authorize same-sex marriages, did its prohibition (if any) raise constitutional concerns, and did New York have to recognize same-sex marriages or civil unions performed in other jurisdictions.

The DRL question. The DRL nowhere expressly bars same-sex marriage. The void-marriage provisions (§§ 5-7) don't mention it. § 7(3), which makes voidable a marriage where a party is "incapable of entering into the married state from physical cause," had been interpreted to mean capacity to consummate, not gender, since Lapides v. Lapides. But the historical context and the gender-specific phrasing throughout the statute strongly suggested an opposite-sex-only assumption. The DRL had been enacted in 1896 and amended in 1907 to add the marriage-license process. Throughout, the statute referred to "groom" and "bride," "husband and wife," and gendered relatives (brother and sister, uncle and niece). The Solicitor General concluded that the Legislature, at the time of enactment, didn't contemplate or authorize same-sex marriage, even though the statute didn't expressly prohibit it.

Other state courts had drawn the same conclusion in similar circumstances. Goodridge (Massachusetts), Singer v. Hara (Washington), and Baker v. Nelson (Minnesota) all read their state's silent marriage statutes as not authorizing same-sex marriage, relying on the common-law meaning of "marriage" and the use of gendered terms.

The two relevant New York lower-court decisions, Anonymous v. Anonymous and Francis B. v. Mark B., had stated that marriage in New York "is and always has been a contract between a man and a woman." Both were dated and rested partly on procreation-based rationales that the AG noted had been undermined by the rule that capacity to bear children isn't required. Raum v. Restaurant Associates and In re Estate of Cooper had interpreted "spouse" in the EPTL to exclude same-sex partners but had not analyzed the DRL question directly.

The constitutional concerns. The AG flagged but did not resolve two constitutional issues. The first was equal protection. If New York courts treated the DRL's implicit limitation as a gender classification, the Virginia heightened-scrutiny standard would apply. If they treated it as a sexual-orientation classification, rational-basis review would apply. Even rational-basis review demands a legitimate state interest. The AG canvassed the candidates: procreation (defeated by Lapides), child welfare (the DRL already permits second-parent adoption by a same-sex partner, In re Jacob), and tradition. Romer v. Evans and Justice O'Connor's Lawrence concurrence had said animus against gay people cannot be a legitimate state interest. Whether "tradition" was something more than disapproval was, the AG noted, the central unsettled question.

The second was the fundamental right to marry. Loving v. Virginia recognized marriage as fundamental. Whether that right reaches same-sex couples was an open question post-Lawrence, with state courts split. Massachusetts had said yes in Goodridge; Arizona had said no in Standhardt; Indiana had said no in Morrison.

The AG noted that courts could resolve any constitutional problem in two ways: by reading the statute to permit same-sex marriages, or by declaring the relevant provisions unconstitutional. Either was open. The AG concluded that the courts, not the Solicitor General, are the proper forum for this resolution.

Out-of-state recognition. The third question had a clearer answer. New York's common-law marriage-recognition rule, articulated in Mott v. Duncan Petroleum and In re Estate of May, requires recognition of marriages or their legal equivalents validly performed elsewhere, unless recognition has been expressly prohibited by statute or the union is abhorrent to public policy. The abhorrence exception is narrow, limited to polygamy or incest in a degree generally regarded as natural-law prohibited.

Langan v. St. Vincent's Hospital had recently applied this rule to a Vermont civil union, holding that the same-sex partner had to be treated as a "spouse" within the meaning of EPTL § 4-4.1(a) and so could bring a wrongful death action. The court relied on New York's expansive protection of same-sex couples in housing (Braschi v. Stahl Associates), employment (Executive Law § 296), and other contexts to conclude that recognition was consistent with state policy, and would otherwise raise equal protection concerns. The decision was on appeal at the time of the AG's opinion.

The Solicitor General's recommendation. Pending judicial resolution, clerks should not issue marriage licenses to same-sex couples, and officiants should not solemnize same-sex marriages. But for out-of-state same-sex marriages and civil unions, parties presumptively must be treated as spouses for purposes of New York law.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions have changed the analysis substantially. The Marriage Equality Act of 2011 (L. 2011, ch. 95) amended the DRL to authorize same-sex marriage in New York. Obergefell v. Hodges, 576 U.S. 644 (2015), established a federal constitutional right to same-sex marriage. Treat this page as historical context, not current legal advice.

Common questions

Q: What did the 2004 AG conclude about same-sex marriage licenses in New York?
A: That the Domestic Relations Law was not intended by the 1896/1907 Legislature to authorize same-sex marriage, and that clerks should not issue licenses or solemnize same-sex marriages pending judicial resolution. The opinion also flagged that this interpretation raised serious equal protection and fundamental-rights concerns.

Q: Did the AG say the DRL was constitutional?
A: No. The Solicitor General specifically noted that the AG's office "traditionally does not issue opinions on the constitutionality of state laws" and did not opine on whether the federal or state constitutions require the State to permit same-sex marriage. The opinion identified the constitutional issues and left their resolution to the courts.

Q: What was the constitutional concern about the DRL?
A: Two concerns. First, equal protection: whether a same-sex marriage ban survives heightened scrutiny (if classified as gender-based) or even rational-basis review (if classified as sexual-orientation-based), in light of Romer v. Evans's rejection of animus as a legitimate interest. Second, the fundamental right to marry under Loving v. Virginia, with state courts split post-Lawrence on whether that right reaches same-sex couples.

Q: What did the AG say about same-sex marriages performed in other states?
A: New York's common-law rule of recognition required that parties to same-sex marriages or civil unions validly performed in other jurisdictions presumptively be treated as spouses under New York law. The exceptions are narrow: express statutory prohibition or "abhorrence" of the union to public policy. The AG noted the Langan decision had applied this rule to a Vermont civil union for EPTL purposes.

Q: Is this opinion still good law?
A: No. The Marriage Equality Act of 2011 amended the Domestic Relations Law to authorize same-sex marriage in New York. Obergefell v. Hodges (2015) confirmed a federal constitutional right to same-sex marriage. The 2004 opinion is historical.

Q: Why does the slug on this file mention zoning?
A: The url_slug and ag_subject_title fields are scraper-generated and were mislabeled for this particular file. The opinion's actual subject is same-sex marriage. Frontmatter has been updated to reflect the real content.

Background and statutory framework

Domestic Relations Law Article 2 defines void marriages (§§ 5-6: incestuous and bigamous unions) and voidable marriages (§ 7). Article 3 prescribes the formal requirements: license (§§ 13, 14, 15), solemnization (§ 11), and limits on who may officiate. § 17 makes it a misdemeanor to solemnize without a license or with knowledge of incompetency, and Penal Law § 255.00 supplies parallel criminal penalties. § 25 saves marriages from invalidity for lack of a license alone.

The recognition rule (Mott v. Duncan Petroleum, In re Estate of May) is an unwritten common-law doctrine: validly executed marriages from other jurisdictions are presumptively recognized in New York, subject only to express statutory prohibition or to the "abhorrence" exception. The abhorrence exception has historically been limited to polygamy or close-incest unions.

The constitutional terrain at the time of the opinion was unsettled. Lawrence v. Texas (2003) had struck down Texas's homosexual sodomy law but expressly left open whether the State must recognize same-sex marriage. Romer v. Evans (1996) had said animus against gay people cannot be a legitimate state interest. Goodridge (Mass. 2003) had used the Massachusetts Constitution to require recognition of same-sex marriage. Baker v. State (Vt. 1999) had required equivalent civil benefits. Baehr v. Lewin (Haw. 1993) had subjected the Hawaii ban to strict scrutiny as a gender-based classification. Standhardt v. Superior Court (Ariz. 2003), Morrison v. Sadler (Ind. 2003), and Lewis v. Harris (N.J. 2003) had gone the other way.

New York's recognition of committed same-sex relationships in other contexts (Braschi v. Stahl, housing protection; In re Jacob, second-parent adoption; multiple anti-discrimination statutes) had created a backdrop in which the DRL's exclusion of same-sex marriage was difficult to justify, even though the DRL itself remained on the books with its gendered terms.

Citations and references

Substantive statutes, case law, and other authorities are listed in the structured fields above. The opinion's full citation table includes federal and state constitutional materials, Vermont civil-union statute, Alaska's marriage amendment, and multiple secondary sources.

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2004-1_pw.pdf

Original opinion text

C.P.L.R. § 4502; CIVIL RIGHTS LAW § 40-c(2); DOMESTIC RELATIONS LAW ART. 2, 3, 9, 10-12, §§ 5, 6, 7, 8, 10, 11, 11-a, 12, 13, 14, 15, 15-a, 16, 17, 22, 23, 25, 140, 170, 200, 221, 236, 248; EDUCATION LAW § 313; ESTATES, POWERS & TRUSTS LAW, §§ 4-4.1, 5-1.1; EXECUTIVE LAW § 296; INSURANCE LAW §§ 240.30, 485.05, 2701; PENAL LAW ART. 210, §§ 240.30, 255.00, 485.05; 9 N.Y.C.R.R. § 2204.6; 18 N.Y.C.R.R. § 421.16; L. 1907, CH. 742; L. 1896, CH. 272; ALASKA CONSTITUTION ART. I, § 25; VERMONT STAT. ANN. TIT. 15 §§ 1201 et seq.

The language of the New York State Domestic Relations Law indicates that the Legislature did not intend to authorize same-sex marriages.

March 3, 2004

Darrin B. Derosia
Corporation Counsel
City of Cohoes
City Hall
97 Mohawk Street
Cohoes, New York 12047-2897

Peter Case Graham
Town Attorney
Town of Olive
479 Washington Avenue
Kingston, New York 12401

Informal Opinion
No. 2004-1

Dear Mr. Derosia and Mr. Graham:

You each have written to our office regarding the issue of same-sex marriages. In particular, the Town of Olive has asked whether the Town Clerk may "issue a marriage license to two persons who claim to be of the same sex." The City of Cohoes has asked whether "there [are] any circumstances under which same sex marriage would be valid in New York State, and if so, what are those circumstances?" During the past several weeks, our office has also received related inquiries from other elected officials.

In view of the significant public interest in this matter, we have expedited our review and are issuing this opinion to address certain legal questions regarding the scope and meaning of the New York Domestic Relations Law ("DRL"). The Attorney General's Office traditionally does not issue opinions on the constitutionality of state laws, and we do not today opine on whether the federal or state constitutions require the State to permit same-sex marriage. New York courts have not yet ruled on this issue, and they are the proper forum for resolution of this matter. However, because these constitutional concerns are integral to the questions you raise, we outline them here to assist you in advising the local officials you represent.

A. Overview of the Domestic Relations Law

The Domestic Relations Law provides the statutory framework for marriage, including identifying those marriages deemed void and voidable (Article 2); setting forth the requirements for solemnization, issuance of marriage licenses, and proof of eligibility for marriage (Article 3); and providing for annulment and voidability of marriages (Article 9), and for divorce, separation, and dissolution on grounds of absence (Articles 10-12).

The DRL sets forth only two qualifications for marriage: (1) a minimum age requirement, see DRL § 15-a; and (2) "the consent of parties capable in law of making a contract," id. § 10.

Article 2 defines those relationships that constitute "void" or "voidable" marriages. Specifically, incestuous and bigamous marriages are void. See id. §§ 5, 6. Certain other marriages are "voidable," i.e., void only if so "declared by a court of competent jurisdiction." DRL § 7.

B. Application of Statutory Provisions to Same Sex Couples

We can provide no certain guidance as to how New York courts will ultimately rule with respect to whether New York law permits or prohibits marriage by same-sex couples. Although the DRL does not explicitly prohibit same-sex marriages, it is our view that the Legislature did not intend to authorize same-sex marriage. The exclusion of same-sex couples from eligibility for marriage, however, presents serious constitutional concerns, which we outline below.

We also address whether, as a matter of New York's longstanding common-law rule of recognition, New York courts must recognize the spousal status of parties to same-sex unions performed in other jurisdictions. Our view is consistent with that of the only New York court to have addressed the issue, which held that parties to Vermont civil unions must be treated as "spouses" for purposes of the Estates, Powers, and Trusts Law ("EPTL").

1. Statutory Language

While the text of the DRL does not expressly bar marriage of same-sex couples, the inclusion in the DRL of gender-specific terms to describe parties to a marriage, as well as the historical context of its enactment, indicates that the Legislature did not intend to authorize same-sex marriage.

The DRL includes no express requirement that married persons be of the opposite sex. Nor does it declare invalid marriages between persons of the same sex; the provisions enumerating marriages that are "absolutely void" or "voidable" make no mention of same-sex marriage. See DRL §§ 5-7. In the absence of an explicit prohibition against same-sex marriage, canons of statutory construction instruct that "courts [should not] correct supposed . . . omissions or defects in legislation." Statutes § 73, 1 McKinney's Cons. Laws of N.Y. at 147-48 (1971).

But notwithstanding the lack of any explicit bar on same-sex marriage, the historical context of the DRL's enactment suggests that the Legislature intended only to authorize marriage between persons of the opposite sex. At the time of the DRL's initial enactment in 1896 and its amendment in 1907 to provide for marriage licenses, the statute referred to marriage in gender-specific terms. See Act of April 17, 1896, Ch. 272, 1896 N.Y. Laws Vol. 1, 216-22; Act of July 26, 1907, Ch. 742, 1907 N.Y. laws Vol. 2, 1744-45.

The inclusion of gender-specific references to married persons in the DRL is consistent with this conclusion. For example, section 15(1)(a) of the DRL requires the town or city clerk to obtain certain information from the "groom" and the "bride." Another provision requires that the parties to a marriage "solemnly declare . . . that they take each other as husband and wife." DRL § 12.

The decisions of courts in other states with statutes that lack an express prohibition of same-sex marriage accord with our construction of New York's DRL. See Goodridge v. Department of Pub. Health, 798 N.E.2d 941, 952 (Mass. 2003); Singer v. Hara, 522 P.2d 1187, 1189 (Wash. Ct. App. 1974); Baker v. Nelson, 191 N.W.2d 185, 186 (Minn. 1971).

2. New York Decisional Law

While New York's highest court has not spoken definitively on the question of whether the DRL authorizes or prohibits same-sex marriage, existing New York precedent is consistent with our view that the DRL does not authorize same-sex marriage. This precedent, however, does not squarely address the questions you raise, nor does it confront the constitutional considerations we identify below.

See Anonymous v. Anonymous, 67 Misc. 2d 982 (Sup. Ct. Queens County 1971); Francis B. v. Mark B., 78 Misc. 2d 112 (Sup. Ct. Kings County 1974); Raum v. Restaurant Associates, Inc., 252 A.D.2d 369 (1st Dep't 1998); In re Estate of Cooper, 187 A.D.2d 128 (2d Dep't 1993).

These prior decisions pre-date the development of U.S. Supreme Court precedent holding that the Equal Protection Clause requires heightened judicial scrutiny where the government uses a gender-based classification, see United States v. Virginia, 518 U.S. 515, 531 (1996), as well as more recent cases restricting the ability of states to discriminate on the basis of sexual orientation, see Lawrence v. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996).

3. Constitutional Considerations

The question of whether the DRL authorizes or permits same-sex marriage must be analyzed in light of an ongoing and rapidly shifting debate about whether it is constitutional to deny eligibility for marital status to same-sex couples. We believe that while the DRL does not authorize same-sex marriage, this interpretation raises constitutional concerns.

Before outlining these concerns, we note that courts may respond to any perceived constitutional infirmity in two different ways. First, it remains possible that they might construe the DRL to permit same-sex marriages in order to avoid declaring relevant portions of the statute unconstitutional. See People v. Barber, 289 N.Y. 378, 385 (1943). Alternatively, the courts might find that the DRL prohibits such marriages and declare the relevant provisions unconstitutional on that ground. See, e.g., People v. Liberta, 64 N.Y.2d 152, 170-171 (1984).

[Discussion of Equal Protection Clause, including United States v. Virginia, Romer, Lawrence, and other state-court decisions.]

[Discussion of Fundamental Right to Marry under Loving v. Virginia, and state-court treatments post-Lawrence.]

4. Recognition of Same-Sex Unions Performed Out-of-State

Whether the Domestic Relations Law permits same-sex marriages performed in New York has no bearing on whether New York will recognize as spouses those parties to a same-sex marriage (or its legal equivalent, see, e.g., Vt. Stat. Ann. tit. 15 § 1201 et seq.) validly performed under the law of other jurisdictions. We therefore address this circumstance separately.

In general, New York common law requires recognizing as valid a marriage, or its legal equivalent, if it was validly executed in another State, regardless of whether the union at issue would be permitted under New York's Domestic Relations Law. The only exceptions to this rule occur where recognition has been expressly prohibited by statute, or the union is abhorrent to New York's public policy. See, e.g., Mott v. Duncan Petroleum Trans., 51 N.Y.2d 289, 292 (1980); In re Estate of May, 305 N.Y. 486, 490-93 (1953). The abhorrence exception is so narrow that only marriages involving "polygamy or incest in a degree regarded generally as within the prohibition of natural law" have been deemed abhorrent by the courts. Estate of May, 305 N.Y. at 491.

Applying this New York common law rule of recognition, the only New York court to have addressed the question recently held that a party to a Vermont civil union must be treated as a "spouse" within the meaning of EPTL § 4-4.1(a), and therefore could bring a wrongful death action. See Langan v. St. Vincent's Hospital of New York, 196 Misc. 2d 440 (Sup. Ct. N.Y. County 2003).

Conclusion

We conclude that the Legislature did not intend to authorize same-sex marriages. This interpretation of the statute, however, raises constitutional concerns, which are best resolved by the courts of this State.

Because the purpose of the marriage licensing process is to "provide[] a definite, well-chartered procedure for entrance into marriage, so that parties following the statutory requirements can have a fair degree of certainty in their marital status," Practice Commentaries to DRL § 13 at 149, we recommend that clerks not issue marriage licenses to same-sex couples, and officiants not solemnize the marriages of same-sex couples, until these issues are adjudicated by the courts.

Finally, we note that the issue of recognizing same-sex unions from other jurisdictions presents a distinct legal question. Consistent with the holding of the only state court to have ruled on this question, New York law presumptively requires that parties to such unions must be treated as spouses for purposes of New York law.

The Attorney General issues formal opinions only to officers and departments of State government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Sincerely,

CAITLIN HALLIGAN
Solicitor General