(Albany, New York) The Court of Appeals, the highest court in New York State, has agreed to hear arguments in two cases challenging the recognition of same-sex marriages performed in areas where they are legal.

The two cases stem from an executive order in 2007 by then-Gov. Eliot Spitzer directing the Department of Civil Service in 2007 to extended health benefits to the same-sex spouses of state employees.

Last May, Gov. David Paterson issued an executive order recognizing the marriages of all New York same-sex couples who were wed  in areas where they are legal. That order also is under court challenge by the ADF, but is not part of the cases being heard by the high court. 

In both cases, the court will hear lthat lower appeals courts have ruled that the executive order was legal.

One case involves the Department of Civil Service directly. 

ADF Attorney Brian Raum last year told the five justices of the midlevel Appellate Division that Spitzer had usurped the authority of the legislature.

Raum pointed to the 2006 ruling by the Court of Appeals that same-sex couples do not have a constitutional right to marry, but that the issue of same-sex marriage could be taken up by the Legislature.

The DCS was represented at the hearing by the state Attorney General’s Office. 

LGBT rights group Lambda Legal was granted intervenor status in the appeal, representing Peri Rainbow and Tamela Sloan, two state employees who were married in Canada and are raising a special needs child adopted from foster care. 

Rainbow and Sloan entered the case to protect their access to spousal health insurance.

The appeals court rejected the ADF arguments, allowing the lower court ruling to stand.

“Once an out–of–state same–sex marriage is recognized in New York,…each of its parties would be ‘a party to a marriage,’ and, thus, a ‘legal spouse’ who would be entitled to the benefits, rights and obligations of that status,” the three-judge majority opinion held. The other two panel judges filed a concurring opinion.

The other case involves Westchester County.

County Executive Spano issued an order that “each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law.”  

In March 2007, the lower court ruled that Spano’s order was legally issued and consistent with New York law. That ruling was appealed by the ADF. 

“I think the rulings in the lower courts were correct and consistent with all the other prevailing decisions in the state,” Lambda senior attorney Susan Sommer told The New York Times.

“I’m looking forward to making the same arguments to the high court so we can ask it to affirm those same arguments that have prevailed in all other cases.”

But the ADF’s Raum was equally optimistic, telling The Times, “We’re confident that we’re on the right side of the law. The law in New York states it will not recognize marriages that conflict with public policy in New York. Since New York only recognizes marriage between one man and one woman, for any court to recognize same-sex marriage would be to recognize marriages that run contrary to New York law.”