In First, N.Y. Judge Allows Gay Divorce

Feb. 26, 2008 — -- In what appears to be the first ruling of its kind, a New York judge will allow a lesbian couple who married in Canada to sue for divorce.

Though New York does not allow same-sex marriages, a state trial court judge refused to dismiss a divorce and child custody suit brought by a woman, identified only as Beth R., against her former partner Donna M.

Donna M. had argued that her 2004 marriage should be invalid in New York because the state doesn't allow same-sex marriage, but Supreme Court Justice Laura Drager found that the out-of-state marriage could still be recognized under New York law. Her ruling appears to be the first divorce case in New York from a same-sex marriage.

"What we're seeing now is a judicial battle that's going to be waged in [the] next few months," said Arthur Leonard, who teaches a class on sexual orientation and the law at New York Law School. "People sometimes forget that divorce is part of marriage. People need a judicial process to untangle a relationship."

The state's highest court last year declined to create a constitutional right to same-sex marriages, saying it was an issue for the legislature to decide. That case did not address out-of-state same-sex marriages.

New York is one of the few states that does not address same-sex marriages. At least 41 states have laws defining marriage as between a man and a woman, according to the National Conference of State Legislatures; those laws allow states to reject same-sex marriages from other states. In December, the Rhode Island Supreme Court ruled that the state's family courts can't grant divorces to same-sex couples.

In her ruling Monday, Drager said New York will not recognize an out-of-state marriage only if it is prohibited by a state law or if it is "abhorrent to New York public policy." She said only polygamy and incest have been found to be abhorrent.

Beth R. and Donna M., described as in their 40s and working in the media industry, were married in Toronto in 2004. They have two daughters, both born to Donna M.

Donna M.'s attorney, Raoul Felder, said the decision ignores hundreds of years of state law and he will appeal. "She wants to change the law," he said of Drager.

Other courts in New York have been willing to recognize non-state same-sex marriages in other contexts, said Susan Sommer of Lambda Legal, a gay rights organization that represented Beth R. Earlier this month, an intermediate appellate court in New York ruled that the state should recognize these same-sex marriages.

"What this decision shows is that it is just as important for same-sex couples and their children to have the same access to divorce courts and the whole process that we have to unwind a relationship," Sommer said.

Massachusetts is the only U.S. state that allows same-sex marriage. Several states, including Vermont and New Jersey, allow civil unions or domestic partnerships, which provide many of the same legal benefits as marriage.