Why “basically”? Because only the legislature can formally legalize it and all attempts to push a bill through have stalled so far. Which means gays can’t get married in New York … but they can, of course, now get married in California or Massachusetts and then come back to New York, where, per Paterson’s new executive order, their marriages will be recognized with full faith and credit (the same principle that lets straights run off to Vegas and then have their Nevada license recognized back home). Not the cleverest gay marriage gambit ever to be tried in NYS but still darned clever in how it (a) lets him argue semi-persuasively that he’s just following the law as it already is, (b) holds the virtue for most conservatives of at least being imposed by an elected official and not a court, and (c) nudges the legislature to make a move on passing a full-fledged gay marriage law of its own, especially since enforcement in the interim is apt to be messy:
It is less clear what the directive means for state policies that are not enforced by state agencies but by the courts, like those that govern child custody or protect a husband and wife from having to testify against one another about statements they made to each other while married.
I’m curious what the HA faithful think. Most of you are avowed federalists; here’s an example of the principle that might not cut your way. Opposition to the move is already stirring, meanwhile, which makes me wonder if the legislature won’t just duck the issue and let Paterson sink or swim on his own. Remember, too, that the Defense of Marriage Act (signed by Bill Clinton, don’t forget) says states aren’t required to recognize gay marriages in other states. I wonder if some opponent won’t try to argue that because no New York state law has been passed formally granting full faith and credit to gay marriages, Paterson’s guilty of improperly/unilaterally “requiring” the state to recognize them and therefore in violation of DOMA. Seems like a stretch since DOMA’s really aimed at courts interpreting the federal constitution’s Full Faith and Credit Clause, but any weapon to hand, I guess.