Same-sex marriage and statutory construction

Factual Questions
21

Point taken.

22

As someone who just started a GQ thread on the legality of same-sex marriage the other day …

  1. For starters, marriage is mentioned nowhere in the NY State constitution (save in relation to the duties of various judges).

  2. Gender is mentioned nowhere in the articles of the Domestic Relations Law that deals with the actual marriage ceremony, marriage certificates, and what types of people may not be married (siblings, people below a certain age, those not of sound mind, etc.).

  3. EXCEPT–the couple must affirm that they are “husband and wife”

  4. But the real problem is elsewhere in the law, where many references to “husband” and “wife” exist, and not all of them are interchangeable with “spouse” or “person”. Per Bildo’s post, some apply only to one gender. For instance, women retain sole ownership of any property they possess prior to the marriage; no such law applies to men. So allowing same-sex marriages would likely require a fair number of laws to be amended. (A good thing in my opinion, but that’s irrelevant to the problem at hand). The question, as Bildo, is for the courts to decide; but if they feel that the equal treatment clause trumps these language differences, one could then easily argue that a reform of the property laws should follow.

In short: Hello can of worms.