By Michael Baggot

  NEW YORK, February 28, 2008 ( – A New York judge has ruled that a lesbian known as Beth R. can pursue a divorce from Donna M., the woman that she “married” in Canada.  It is the first time in New York judicial history that a judge has allowed homosexuals to seek a divorce. 

  While Donna M. contends that a divorce case is impossible in a state that does not allow for same-sex “marriages,” Supreme Court Justice Laura Drager ruled the state can still recognize the marriage that took place outside of New York. 

  Donna M.‘s lawyer argues that Justice Drager’s decision “sets aside 200 years of decisional and statutory law in New York.”  He accused Drager of trying to change state law through the court. 

  In 2006, on behalf of the New York Court of Appeals, Justice Smite wrote, “We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the legislature.”  Unlike at least 41 other states, however, New York legislation does not explicitly define marriage as a union between a man and woman, thus allowing judges like Drager to recognize homosexual marriages contracted elsewhere.

  Drager’s decision contrasts with a December Rhode Island decision in which the state’s Supreme Court refused to acknowledge any out-of-state homosexual “marriage.”  Contrary to that decision, Drager ruled that New York would recognize any out-of-state marriage that is not prohibited by the state or is not “abhorrent to New York public policy.”  Only incest and polygamy were cited as “abhorrent” practices.

  Drager’s ruling is the second major legal victory in New York this month for advocates of homosexual “marriage.”  On February 1st, the Appellate Division of State Supreme Court of New York ruled that homosexual “marriages” legally recognized in other countries must also be recognized for the purpose of state employee benefits.  After the February 1st ruling, Monroe Community College in Rochester was forced to extend health benefits to the college employee Patricia Martinez, who was “married” to her homosexual partner in Canada. 

  The left-wing advocacy group New York Civil Liberties Union admitted to bringing the Martinez case forward in order to move towards the legalization of homosexual “marriages” within the state.  James Esseks, Litigation Director of the Lesbian Gay Bisexual and Transgender Project of the NYCLU, said after the February case that “it’s now up to the state legislature to finish the job it started last year and pass the marriage bill so that lesbian and gay New Yorkers won’t have to leave the state to celebrate their commitments.”

  Drager’s ruling is a part of a continuing trend within New York to recognize the validity of homosexual “marriages.”  As judicial recognition of homosexual marriages expands, it is likely that previous state prohibitions of same-sex marriages will disappear. 

  Donna M. has said that she plans to appeal the Drager decision.  

  See related coverage:

  New York Court Rules State Must Validate Canadian Homosexual “Marriages”

  New York Assembly Considers Legalizing Gay “Marriage”

  NY Governor Spitzer Pushes Abortion and Gay Marriage