9 - 22
JAN
2009
14 DAYS14 NIGHTS
JAN 9
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p.5
FRI.JAN.9
BENEFITPretty As APostcard
Visual Aids, a resource for artprogramming promoting AIDS aware-ness and HIV-prevention, presents its11th annual “Postcards From the EdgeBenefit,” featuring an auction of morethan 1,500 postcards created by dozensof prominent artists. On
Jan. 9, 6-8p.m., Metro Pictures Gallery
hostsa sneak peak at the entire showinggoing on sale the following day. Therewill be no sales, but one lucky winnerwill select any postcard. $75 admissiongives you one raffle ticket; additionaltickets available at $20 each. On
Jan.10, 11 a.m.-7 p.m.
, the entire collectionwill go on sale for $75 each, first come,first served. Buy four postcards and youget the fifth free. Suggested admissionof $5 for the sale.
519 W. 24th St.
Fora complete list of participating artists,visit visualaids.org.
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DANCERock OperaCollaboration
Parsons Dance presents theworld premiere of an all-new, as-yet-untitled collaboration with thelead vocalists of East Village OperaCompany, featuring the music of theacclaimed rock opera band. ProgramA premieres the new evening-lengthwork with EVOC’s two lead vocalistslive onstage with Parsons Dance.Program B will feature Parsons Dancefavorites, including “Caught” and“Nascimento.” Tyley Ross, lead malevocalist of EVOC, said, “David Par-sons’ choreography marries traditionand renewal in a way that physicallyrepresents what we try to evoke asa band. It’s exciting to see our musictake a three dimensional kinestheticshape in his hands.”
Joyce Theater,175 Eighth Ave. at 19th St. Pro-gram A runs Jan. 9-10 & 15-17, 8p.m.; Jan. 11, 2 p.m.; Jan. 14 & 18,7:30 p.m. Program B runs Jan. 13,7:30 p.m.; Jan. 17-18, 2 p.m.
Ticketsare $19-$59 at joyce.org or 212-242-0800.
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Women In Dance
Celebrating its third year, theSugar Salon, presented by WAX, theWilliamsburg Arts Exchange, andthe Barnard College Department ofDance supports exceptional womenat the forefront of contemporary cho-reography. This shared evening ofwork will feature an excerpt of theacclaimed “American Rendition” byBessie Award-winner Jane Comfort,as well as premieres by Heather Olson,
W’chester Nups Order Upheld
Appeals court dodges issue but okays county’s gay recognition directive
2
/
Legal
BY ARTHUR S. LEONARD
A
unanimous four-judgepanel of the New York Appellate Division for the 2nd Department issueda brief decision on December 30, rejecting a challenge to thesame-sex marriage recogni-tion order that Westchester County Executive Andrew J.Spano, a Democrat, issued in June 2006. The panel man-aged, through judicial sleight-of-hand, to affirm a trial judge’sdismissal of the case without taking any position on whether New York law requires recogni-tion of same-sex marriages.In his order, Spano directedall the departments, boards,agencies, and commissionsof government in Westchester County “to recognize same-sex marriages lawfully entered intooutside the State of New York”as it does different-sex mar-riages “to the maximum extent allowed by law.” The plaintiffs,taxpayers provided counsel by Alliance Defense Fund, a right-wing litigation group that challenges gay rights advancesnationwide, argued that theorder was illegal and beyondthe powers of the county execu-tive.Lambda Legal intervened inthe case on behalf of spousesMichael Sabatino and Robert Voorheis, who married out-of-state and live in Westchester,and so stand to benefit fromSpano’s order and suffer harmif it is overturned.In April 2007, Westchester County Supreme Court Justice Joan B. Lefkowitz rejected thechallenge to the Spano’s order,in a detailed opinion conclud-ing that recognition of same-sex marriages legally contract-ed elsewhere was supported by well-established principles inNew York law, since grounds for refusing to do so do not exist.Lefkowitz’s analysis was vindicated in early 2008 whenan appellate panel in WesternNew York endorsed the samereasoning in Martinez v. Mon-roe Community College, a caseinvolving the college’s refusalto recognize the Canadiansame-sex marriage of one of itsemployees.Monroe County’s prematureattempt to appeal that ruling was rejected by the Court of Appeals. The Martinez case isstatewide precedent, unlesscontradicted by another appel-late department or overruled at the Court of Appeals. The Westchester County plaintiffs appealed Lefkowitz’sruling, raising the same argu-ments they had earlier, thistime in the face of mountingauthority from cases aroundthe state endorsing equality inmarriage recognition. The 2nd Department deci-sion, however, in a very realsense ducks the critical ana-lytical issue by focusing on thelast seven words of Spano’sorder: “to the maximum extent allowed by law.” The panel rea-soned that the county execu-tive’s directive could not beillegal since, “by its terms,” it “can never require recognitionof such a marriage where it would be outside the law to doso.” Spano’s job is to “see that the laws of the state, pertainingto the affairs and government of the county, are executed andenforced within the County,”so it was clearly legal for himto order all units of county gov-ernment to recognize same-sex marriages “to the maximumextent allowed by law.”Having rested its ruling onthis sleight of hand, the panelrefrained from delving into thedetails of New York marriagerecognition law, merely assert-ing that an order by the county executive that agencies comply with the law was clearly legal. This, of course, disingenuously speaks as if Spano had brokenno new ground, while in fact his clear intent was to adopt a potentially controversial point of view as to what the law is. The panel also held, with-out any real explanation andcontrary to Lefkowitz, that theplaintiffs had no standing toinvoke the Municipal HomeRule Law to argue that theSpano’s order exceeded hislegal authority, because they had not shown “some personalinterest in the dispute beyondthat of any taxpayer.” Totally lacking an analysis, the panel just asserted, “They have not done so.”Consequently, the panelaffirmed Lefkowitz’s order dis-missing the case, without itself appearing to take any substan-tive position on the underlyinglegal question of marriage rec-ognition.
BY ARTHUR S. LEONARD
L
ambda Legal has wona ruling from US Dis-trict Court Judge Jay C. Zainey, requiring Louisiana officials to issue a new birthcertificate for a Louisiana-bornchild adopted in a New York State court by a gay male cou-ple who now live in California.Zainey’s opinion does not provide many human interest details about the case, other than to note that the twomen, Oren Adar and Mickey Ray Smith, jointly adoptedthe child in upstate Ulster County and currently live inSan Diego. Because the child was born in Shreveport, thefathers had to apply to Loui-siana authorities to obtaina new birth certificate withthe child’s new surname andidentifying the couple as thechild’s legal parents. Adar and Smith alleged that the refusal of Louisiana offi-cials to issue the certificatehas already caused problemsfor them in getting the childincluded as a beneficiary on anemployee-based group healthinsurance plan.Relying on an advisory opinion from the Louisiana attorney general, Democrat James D. Buddy Caldwell, who appears to have allowedpolitics to interfere with objec-tive legal research in formingan opinion, the state registrar refused to issue the certifi-cate. The purported basis for the objection was that Louisi-ana does not allow unmarriedcouples to adopt children, so it would violate the state’s publicpolicy to issue a birth certifi-cate showing two men as thechild’s parents. The state argued that it may invoke a “public policy exception” to the obligationsimposed by the US Constitu-tion’s Full Faith and Credit Clause, which says that every state “shall grant full faith andcredit” to the court judgmentsrendered in other states.Zainey pointed out that thestate’s position violates theplain language of its own stat-ute governing the issue. Loui-siana’s statute on out-of-stateadoptions specifies that stateofficials are to issue a new birth certificate for any Loui-siana-born child adopted out of state, upon being presented with official documentationof the adoption. The new cer-tificate is supposed to list theadoptive parent or parents,and to be issued under theadoptive name of the child. The statute does not refer toany exceptions. The attorney general arguedthat other statutes that wouldmake this adoption impos-sible in Louisiana provided a basis to refuse to issue the cer-tificate, but Zainey disagreed.He pointed out that, althoughthere have been cases wherestates have been upheld inrefusing to give effect to stat-utes from other jurisdictionson grounds of public policy,there is no recognized pub-lic policy exception for lawful judgments by the courts of other states.Zainey pointed to USSupreme Court decisions insupport of his finding, as wellas the important recent rul-ing in Finstuen v. Crutcher, a federal 10th Circuit decisionfrom 2007 that invalidated anOklahoma law forbidding rec-ognition of out-of-state adop-tions by unmarried couples. Although the Finstuen ruling isnot binding on Zainey, a judgein the New Orleans-based 5thcircuit, he nonetheless heldthat it was “instructive.”Given their determined oppo-sition, it seems likely that Loui-siana officials will appeal thisruling to the 5th Circuit, but the case law on full faith andcredit for adoption decrees issolid, so such an appeal couldcertainly be deemed frivolous.Zainey’s opinion grantedthe plaintiffs’ motion for sum-mary judgment, ordering thestate officials to issue the birthcertificate, but did not discussthe plaintiffs’ alternative legalargument that the refusal toissue the new certificate violat-ed their right to equal protec-tion of the laws.
NY Gay Adoption Honored
New birth certificate ordered for Louisiana-born child adopted here
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