Lambda Legal Seeks to Strike Down Decision Disrespecting Canadian Marriage of Same-Sex Couple

(New York, January 24, 2008) — In oral arguments today, Lambda Legal urged the New York Supreme Court, Second Department, to follow the marriage recognition rule and reverse a lower court ruling denying recognition of Duke Funderburke's Canadian marriage to his partner of over four decades, Brad Davis.

"In the midst of this lawsuit the Department of Civil Service came into line with New York state law by changing its policy and recognizing Mr. Funderburke's marriage," said Susan Sommer, Senior Counsel at Lambda Legal. "The lower court's decision in this case is an outlier, out of synch with other court decisions on the issue and the policies of State and local government officials. For the sake of clarity, and this couple of 45 years, it's important for the court to reverse the lower court decision in accordance with New York state law and overwhelming public policy respecting out-of-state marriages of same-sex couples." Governor Spitzer, Comptroller DiNapoli, Attorney General Cuomo and many other state officials and private entities respect marriages of same-sex couples that are validly performed elsewhere in accordance with well-established New York law.

Duke Funderburke was a teacher in the Uniondale Union Free School District in Nassau County for 25 years before retiring in 1986. He married his life partner in a ceremony in Ontario, Canada. When Funderburke requested that his retirement health benefits be extended to his spouse, just as benefits are extended to other married retirees, the school district refused. In 2006 Lambda Legal filed a lawsuit on his behalf arguing that New York law requires government entities to respect valid marriages performed out-of-state, including marriages of same-sex couples performed in Canada. The New York Supreme Court, which is the first level court in New York, ruled against Funderburke. Lambda Legal immediately filed an appeal. During the appeals process, the Department of Civil Service agreed to extend benefits to same-sex spouses of public employees under the New York State Health Insurance Program, citing "legal and policy concerns" with its prior policy denying recognition. Today's argument seeks to reverse the court's prior decision against Funderburke because, while the benefits issue has been resolved, the lower court's decision creates confusion about the status of the couple's marriage and of State law and should be wiped from the law books.

Susan L. Sommer, Senior Counsel, is Lambda Legal's lead attorney on the case, Funderburke v. The New York Department of Civil Service, Uniondale Union Free School District et al. Jeffrey S. Trachtman and Norman C. Simon of the law firm, Kramer Levin Naftalis & Frankel LLP are co-counsel on the case.

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Contact: Tika Milan 212.809.8585 ext. 223; E: tmilan@lambdalegal.org