Comparative Experience in the New York Same-Sex Marriage Case

As best I can tell from a cursory read of the recent New York Court of Appeals same-sex marriage case of Hernandez v. Robles, there is no mention of comparative experiences in other countries. Save one. And it comes from Judge Kaye in dissent. Here it is:

The State asserts an interest in maintaining uniformity with the marriage laws of other states. But our marriage laws currently are not uniform with those of other states. For example, New York-unlike most other states in the nation-permits first cousins to marry (see Domestic Relations Law § 5). This disparity has caused no trouble, however, because well-settled principles of comity resolve any conflicts. The same well-settled principles of comity would resolve any conflicts arising from any disparity involving the recognition of same-sex marriages. It is, additionally, already impossible to maintain uniformity among all the states, inasmuch as Massachusetts has now legalized same-sex marriage. Indeed, of the seven jurisdictions that border New York State, only Pennsylvania currently affords no legal status to same-sex relationships. Massachusetts, Ontario and Quebec all authorize same-sex marriage; Vermont and Connecticut provide for civil unions; and New Jersey has a statewide domestic partnership law.

That’s interesting, but I’m not sure I understand why she included Ontario and Quebec here or, for that matter, why she used a territorial proximity limitation for her uniformity analysis. It would seem Judge Kaye is arguing that physical proximity to the state of New York somehow matters in the uniformity analysis. But why? So Ontario and Quebec have laws that authorize same-sex marriage. Therefore … what? Comity principles can resolve conflicts where there are disparate rules on marriage? But of course comity principles would be quite different for purposes of recognizing a same-sex marriage in Massachusetts than one in Quebec. So why did she include Quebec and Ontario in arguing her uniformity point? Perhaps she wanted to show three neighboring “jurisdictions” in favor of same-sex marriage, three in favor of civil unions and domestic partnerships, and one without any protections. On balance, that sounds very different from a statement that one state allows same-sex marriage in the United States and the remaining 49 do not. Sounds reminiscent of Ernest Young’s concern about the “denominator problem” in his recent essay about Roper v. Simmons in the Harvard Law Review. Thoughts?