Issues Affecting Same-Sex Couples

June 23, 2005

The New York State Bar Association's Special Committee to Study Issues Affecting Same Sex Couples has prepared a report that provides a detailed discussion and analysis of the legal and constitutional issues surrounding same-sex relationships, an examination of the approaches that have been used to address those issues, and a series of conclusions about ways in which the New York state Legislature might address this subject.

The report, originally issued in the fall of 244, was presented for informational purposes only to the Association's House of Delegates, its decision and policy-making body, on November 6, 2004, and was approved at the January 2005 meeting. The committee was co-chaired by Michael Whiteman of Albany (Whiteman Osterman & Hanna LLP) and A. Thomas Levin of Mineola (Meyer, Suozzi, English & Klein, PC).

The report is divided into four parts. The first part examines the state's legal treatment of marital relationships and of same-sex relationships and provides a compendium of differences. The report touches on such wide ranging matters as the duty of support, responsibilities to children, property rights, domestic violence and access to the courts, health care concerns and similar issues.

The second part reviews the spectrum of options that have been suggested to describe same-sex relationships, such as marriage, civil union and domestic partnership, as well as legal regulation of such relationships, ranging from the Defense of Marriage Act to a proposed federal constitutional amendment. It also provides a brief history of marriage and the modern foundation for marriage.

The third part of the report analyzes the equal protection and due process constitutional questions implicated by limiting marriage to one man and one woman, with particular attention to recent U.S. Supreme Court opinions and a discussion of state and federal equal protection and due process clauses.

The fourth part contains the committee's findings and recommendations. Nine members of the committee conclude that because of differences in how the law treats same-sex and opposite-sex couples and the inability of same-sex couples to equalize those differences, the state Legislature should enact comprehensive legislation to extend to same-sex couples the rights now extended to opposite-sex couples, and that the three comprehensive options that are available are domestic partnerships, civil unions, and marriage. Of these nine, four members believe that the selection of a particular option is a matter of public policy that should be considered by the state Legislature. Five members go further and, recommend that the Legislature adopt legislation that expressly authorizes same-sex couples to marry under New York's civil marriage statute.

Three members of the committee dissent, concluding that the Association historically has avoided taking positions on questions of social or public policy, and should not in this instance adopt a position that expresses any policy judgment, or any preference or recommendation, as to whether the Legislature should grant formal legal status to same-sex relationships by marriage, domestic partnerships, civil unions, or any other name. Rather, they state, the Association should call upon the Legislature to determine the appropriate public policy with respect to whether, and to what extent, such relationships should have legal recognition.

The 72,000-member New York State Bar Association is the official statewide organization of lawyers in New York and the largest voluntary state bar association in the nation. Founded in 1876, NYSBA programs and activities have continuously served the public and improved the justice system for more than 125 years.

Report

• Report Cover (PDF)
• Special Committee Roster
• Scheduling Resolution
• Same-sex marriage issues report (PDF - note: this is a lengthy report and may take some time to load.)
• Summary of Majority
• Majority Resolution
• Summary of Dissent
• Dissent Resolution