STATE OF NEW YORK
2009-2010 Regular Sessions
April 22, 2009
Introduced by Sens. DUANE, ADAMS, BRESLIN, DILAN, ESPADA, C. JOHNSON,
KLEIN, KRUEGER, MONTGOMERY, OPPENHEIMER, PARKER, PERKINS, SAVINO,
SCHNEIDERMAN, SERRANO, SQUADRON, STAVISKY, STEWART-COUSINS, THOMPSON
-- (at request of the Governor) -- read twice and ordered printed, and
when printed to be committed to the Committee on Judiciary
AN ACT to amend the domestic relations law, in relation to the ability
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative intent. Marriage is a fundamental human right.
2 Same-sex couples and their children should have the same access as
3 others to the protections, responsibilities, rights, obligations, and
4 benefits of civil marriage. Stable family relationships help build a
5 stronger society. For the welfare of the community and in fairness to
6 all New Yorkers, this act formally recognizes otherwise-valid marriages
7 without regard to whether the parties are of the same or different sex.
8 It is the intent of the legislature that the marriages of same-sex and
9 different-sex couples be treated equally in all respects under the law.
10 The omission from this act of changes to other provisions of law shall
11 not be construed as a legislative intent to preserve any legal
12 distinction between same-sex couples and different-sex couples with
13 respect to marriage. The legislature intends that all provisions of law
14 which utilize gender-specific terms in reference to the parties to a
15 marriage, or which in any other way may be inconsistent with this act,
16 be construed in a gender-neutral manner or in any way necessary to
17 effectuate the intent of this act.
18 § 2. The domestic relations law is amended by adding a new section
19 10-a to read as follows:
20 § 10-a. Sex of parties. 1. A marriage that is otherwise valid shall be
21 valid regardless of whether the parties to the marriage are of the same
22 or different sex.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
S. 4401 2
1 2. No government treatment or legal status, effect, right, benefit,
2 privilege, protection or responsibility relating to marriage, whether
3 deriving from statute, administrative or court rule, public policy,
4 common law or any other source of law, shall differ based on the parties
5 to the marriage being or having been of the same sex rather than a
6 different sex. When necessary to implement the rights and responsibil-
7 ities of spouses under the law, all gender-specific language or terms
8 shall be construed in a gender-neutral manner in all such sources of
10 § 3. Section 13 of the domestic relations law, as amended by chapter
11 720 of the laws of 1957, is amended to read as follows:
12 § 13. Marriage licenses. It shall be necessary for all persons
13 intended to be married in New York state to obtain a marriage license
14 from a town or city clerk in New York state and to deliver said license,
15 within sixty days, to the clergyman or magistrate who is to officiate
16 before the marriage ceremony may be performed. In case of a marriage
17 contracted pursuant to subdivision four of section eleven of this chap-
18 ter, such license shall be delivered to the judge of the court of record
19 before whom the acknowledgment is to be taken. If either party to the
20 marriage resides upon an island located not less than twenty-five miles
21 from the office or residence of the town clerk of the town of which such
22 island is a part, and if such office or residence is not on such island
23 such license may be obtained from any justice of the peace residing on
24 such island, and such justice, in respect to powers and duties relating
25 to marriage licenses, shall be subject to the provisions of this article
26 governing town clerks and shall file all statements or affidavits
27 received by him while acting under the provisions of this section with
28 the town clerk of such town. No application for a marriage license shall
29 be denied on the ground that the parties are of the same, or a differ-
30 ent, sex.
31 § 4. Subdivision 1 of section 11 of the domestic relations law, as
32 amended by chapter 319 of the laws of 1959, is amended to read as
34 1. A clergyman or minister of any religion, or by the senior leader,
35 or any of the other leaders, of The Society for Ethical Culture in the
36 city of New York, having its principal office in the borough of Manhat-
37 tan, or by the leader of The Brooklyn Society for Ethical Culture,
38 having its principal office in the borough of Brooklyn of the city of
39 New York, or of the Westchester Ethical Society, having its principal
40 office in Westchester county, or of the Ethical Culture Society of Long
41 Island, having its principal office in Nassau county, or of the River-
42 dale-Yonkers Ethical Society having its principal office in Bronx coun-
43 ty, or by the leader of any other Ethical Culture Society affiliated
44 with the American Ethical Union; provided that no clergyman, minister or
45 Society for Ethical Culture leader shall be required to solemnize any
46 marriage when acting in his or her capacity under this subdivision.
47 § 5. This act shall take effect immediately.
NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1
BILL NUMBER: S4401
TITLE OF BILL:
An act to amend the domestic relations law, in relation to the ability
This bill provides same-sex couples the same opportunity to enter into
civil marriages as opposite-sex couples. The bill also provides that no
member of the clergy may be compelled to perform any marriage ceremony.
SUMMARY OF PROVISIONS:
Section 1 of the bill sets forth legislative intent.
Section 2 of the bill adds a new Section 10-a to the Domestic Relations
Law (DRL) providing that: (1) a marriage that is otherwise valid shall
be valid regardless of whether the parties to the marriage are of the
same or different sex; (2) no government treatment or legal status,
effect, right, benefit, privilege, protection or responsibility relating
to marriage shall differ based on the parties to the marriage being or
having been of the same sex rather than a different sex; and (3) all
relevant gender-specific language set forth in' or referenced by New
York law shall be construed in a gender-neutral manner.
Section 3 of the bill amends DRL § 13 to provide that no application for
a marriage license shall be denied on the ground that the parties are of
the same, or a different, sex.
Section 4 of the bill amends DRL § 11(1) to make clear that no member of
the clergy acting in such capacity may be required to perform any
Section 5 of the bill sets forth the effective date.
Although the Domestic Relations Law contains no specific prohibition
against, or allowance for, marriages between individuals of the same
sex, the New York Court of Appeals has held that New York statutory law
limits marriage within New York State to opposite-sex couples.
HERNANDEZ V. ROBLES, 7 N.Y.3d 338 (2005).
STATEMENT IN SUPPORT:
The "freedom to marry" is, in the words of the United States Supreme
Court, "one of the vital personal rights essential to the orderly
pursuit of happiness by free
people."1 In New York, however, certain
couples who seek to exercise this freedom, and partake of its rights and
responsibilities by mutual consent, may not do so solely because they
are of the same sex. The bar against same-sex marriages exists regard-
less of how long the individuals have lived together, or whether they
are raising children through legally recognized joint custody arrange-
ments. This bill removes the barriers in New York law that deprive indi-
viduals of the equal right to marry the person of their choice, by
granting the same legal recognition to all civil marriages regardless of
whether those who enter into them are of the same, or of a different,
Partners unable to enter into a civil marriage - and their children -
lack basic legal protections taken for granted by married couples. In
such areas as property ownership, inheritance, health care, hospital
visitation, taxation, insurance coverage, child custody, pension bene-
fits and testimonial privileges, married couples receive important safe-
guards against the loss or injury of a spouse, and crucial assurances
against legal intrusion into their marital privacy. As important, unions
lacking the State's recognition are denoted, by force of law, as somehow
not equal to other comparable relationships. Civil marriage is the means
by which the State defines a couple's place in society. Those who are
excluded from its rubric are told by the institutions of the State, in
essence; that their solemn commitment to one another has no legal
Just as the right to marry confers important benefits on individuals,
the institution of marriage produces incalculable benefits for society,
by fostering stable familial relationships. Same-sex couples who wish to
marry are not simply looking to obtain additional rights, they are seek-
ing out substantial responsibilities as well: to undertake significant
and binding obligations to one another, and to lives of "shared intimacy
and mutual financial and emotional support."2 Granting legal recognition
to these relationships can only strengthen New York's families, by
extending the ability to participate in this crucial social institution
to all New Yorkers.
The history of this country for more than two centuries has been the
story of once excluded individuals and groups gaining gradual access to
equal rights under law. New York State, in particular, has played a
proud and honorable part in that history, from hosting the foundational
women's rights convention at Seneca Falls in 1848, to breaking base-
ball's color barrier, to witnessing the seminal event of the modem gay
rights movement in New York City four decades ago. New York legislators
and other political leaders, of both parties and of all viewpoints, have
had an important role in this process, and in the gradual extension of
equal treatment to gays and lesbians in particular. In 1983, Governor
Mario Cuomo first banned discrimination in state employment by Executive
Order. In 2002, Governor Pataki extended the same principle to the
private sector by signing into law the Sexual Orientation Non-Discrimi-
nation Act. That year, the State gave its first legal recognition to
same-sex relationships when the Legislature unanimously passed - and the
Governor signed - a bill extending workers' compensation benefits to all
those who lost a partner on 9/11. Yet the institution of marriage
remains closed to loving same-sex couples who seek only to be able to
show their mutual commitment as other individuals do. Passage of this
bill would remedy that flaw, and represent yet another important and
historic step in the process by which all citizens of New York State are
granted full and equal rights.
Individuals on both sides of the questions raised by this bill hold
deep-seated views that arise from a host of ethical and religious
considerations. To ensure that the bill does not improperly intrude into
matters of conscience or religious belief, the bill affirms that no
member of the clergy can be compelled to solemnize any marriage. In
short, this bill grants equal access to the government-created legal
institution of civil marriage, while leaving the religious institution
of marriage to its own separate, and fully autonomous, sphere.
The bill will require additional state expenditures for " spousal bene-
fits for those partners of state employees who are not eligible for such
benefits under current law, and who are married under this legislation.
At the same time, however, allowing same-sex marriage would have numer-
ous positive fiscal impacts. A 2007 report by the New York City Comp-
troller detailed numerous sources of added revenue that would result
from enacting marriage equality in New York State, including tax revenue
from additional weddings, higher intake of marital licensing fees and
reduction of means-tested benefit payments as a result of aggregated
marital income. Moreover, any negative budgetary impact from added bene-
fit payments will be limited, as many same-sex couples already enjoy
such benefits through a variety of administrative schemes, or as a
result of out-of-state marriages.
This bill takes effect immediately.
1 Loving v. Virginia 388 U.S. (1967).
2 Hernandez v. Robles, 7 N.Y. 3d 338 (2005) (Kaye, C.J., dissenting).