Marriage is a Fundamental Human Right

Recently, the New York State legislature passed the Marriage Equality Act. In passing this Act, the New York State legislature recognized that “Marriage is a fundamental human right” and that “Same-sex couples should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage”. The Act further recognized “otherwise valid marriages without regard to whether the parties are of the same or different sex” and that “the marriages of same-sex couples [shall] be treated equally in all respects under the law.”

In passing the Marriage Equality Act, New York State becomes one of only a handful of states recognizing the fundamental human rights of all New Yorkers to marriage, thus conferring upon same-sex couples the rights and protections which come with marriage under the law, regardless of one’s sexual orientation.

In the area of divorce law in New York State, this will mean a significant number of rights to be conferred upon same-sex couples, such as the right to jointly own marital property, the right to equitable distribution of that property in the event of a divorce, and in some cases the right to spousal maintenance for the more needy spouse. It will also confer upon same-sex couples a number of additional rights under the law, such as the right to inherit property upon the death of a spouse, and the right to exercise spousal privilege in court proceedings.

This will bring same-sex unions in New York State in line with different sex couples, as they are treated in divorce proceedings and all other court cases in New York State. In most instances, it will also allow lawyers to draft agreements and judges to render decisions, without regard to whether the parties are of the same or a different sex, except where federal benefits are involved or where one of the parties seeks to relocate to another state.

Currently, the Defense of Marriage Act (“DOMA”) prevents the federal government from recognizing the validity of same-sex marriages. As such, same-sex couples in New York State still do not have the right to receive their spouses’ Social Security benefits, nor do they have the right to federal tax benefits that come with marriage.

DOMA also explicitly grants other states the right to refuse to recognize same-sex marriages performed in New York State. It will remain to be seen whether other states will give full faith and credit to same-sex marriages performed in New York State, together with those rights conferred by marriage.

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