Church and State.jpgIn the United States, there is perhaps no greater blending of Church and State than with marriage and divorce. New York’s recognition of same-sex marriage shines a light on a debate as old as the country.

It took the 16th century Protestant Reformation to reject marriage as a religious sacrament.  For  Martin Luther, marriage was “a worldly thing.”  In the 17th century, the English Parliament declared “marriage to be no sacrament.” It was to be performed by a justice of the peace, not by a minister. The Puritans brought secular marriage to America. Back in England the pendulum swung back to the religious right in 1753, when the Church of England was put in charge of all marriages (including those of Catholics, but not of Quakers and Jews).

In New York, marriage is a hybrid. Domestic Relations Law §10 declares:

Marriage, so far as its validity in law is concerned, continues to be a civil contract, to which the consent of parties capable in law of making a contract is essential.


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Gay marriage rings.jpgLast week, the Appellate Division, Third Department, exercised its equitable muscle to filling in the gaps while the marriage and divorce laws of the different states catch up with each other.  On July 21, 2011, in Dickerson v. Thompson, the court granted a dissolution of a Vermont civil union.

Under Vermont law, the civil union entered by the gay couple was not a marriage. As a result, a New York divorce, “no-fault” or otherwise, was not the appropriate remedy. The appellate court noted that as “the plaintiff would be entitled to a dissolution of a civil union in Vermont,” but for her failure to be a current resident of that state. Giving the plaintiff her need relief, the court declared the broad equity powers of the New York Supreme Court were sufficient to declare the Vermont civil union dissolved. Thus, the plaintiff would now be free to marry, domestically partner, or re-unite with another.

While New York tore asunder one gay couple, more than 800 gay couples were able to marry on July 24, 2011, the first day of such unions under New York’s same-sex marriage legislation.  New York is still coming to grips with joining the rest of the country by making the dissolution of a marriage a matter of one spouse’s choice: a simple declaration that the marriage has broken down irretrievably. That law is just under 10 months old.


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