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NYS Bar Association Same-Sex Couples Recognition Report 2004

NYS Bar Association Same-Sex Couples Recognition Report 2004

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Published by: Paul Schindler on May 17, 2011
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On December 17, 2002, Governor Pataki signed the Sexual Orientation

Non-Discrimination Act (“SONDA”), into law.1086

SONDA, which took effect in

January 2003, bars discrimination based on actual or perceived sexual orientation in

employment, housing, education, commercial occupancy, trade, credit and public

accommodation.1087

SONDA does not create separate statutes; rather, it adds the words

“sexual orientation” to relevant passages in existing executive, civil rights and education

1086

N.Y. EXEC. LAW § 291 (McKinney 2003); enacted A.B. 1971 (225th Gen. Assembly, 1st Special
Session 2002) (enacted Dec. 17, 2002). Statewide non-discrimination bans against sexual orientation
discrimination currently are in effect in fourteen states and the District of Columbia. These states are:
California, Connecticut, District of Columbia, Hawai’i, Maryland, Massachusetts, Minnesota, Nevada,
New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont and Wisconsin. Human
Rights Campaign, States Banning Employment Discrimination Based on Sexual Orientation, available at
http://www.hrc.org/Content/NavigationMenu/Work_Life/Get_Informed2/Laws_Legal_Resources2/Workpl
ace_Discrimination_Laws/States_Banning_Discrimination.htm (last visited Jan. 25, 2004). In the other 36
states, an employer may legally fire an employee based on actual or perceived sexual orientation unless
local antidiscrimination laws apply. See Human Rights Campaign, Gay, Lesbian, Bisexual and
Transgender Workplace Issues
, available at http://www.hrc.org/Template.cfm?Section=Workplace
_Discrimination&Template=/TaggedPage/TaggedPageDisplay.cfm&TPLID=52&ContentID=13337 (last
visited Jan. 25, 2004). Ten other states prohibit sexual orientation discrimination in housing, seven in
education, six in credit and eleven in public accommodation. These states are: Connecticut, Hawai’i,
Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, Rhode Island, Vermont and Wisconsin
(housing); California, Connecticut, Massachusetts, Minnesota, New Jersey, Vermont and Wisconsin
(education); Connecticut, Massachusetts, Minnesota, Rhode Island, Vermont and Wisconsin (credit);
California, Connecticut, Hawai’i, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey,
Rhode Island, Vermont and Wisconsin (public accommodation). See Lambda Legal, Summary of States
Which Prohibit Discrimination Based on Sexual Orientation
(Jan. 6, 2003), available at
http://www.lambdalegal.org/cgi-bin/iowa/documents/record?record=185 (last visited Feb. 3, 2004). The
District of Columbia prohibits sexual orientation discrimination in all of these categories. See Lambda
Legal, Washington, D.C.: Anti-Discrimination Law, available at http://www.lambdalegal .org/cgi-
bin/iowa/states/record?record=48#Anti-Discrimination (last visited Feb. 3, 2004). Although a federal ban
on sexual orientation discrimination has been introduced in Congress, it has not yet been enacted. ENDA
would prohibit discrimination based on sexual orientation in employment, employment agencies, labor
unions and training programs, hiring, compensation, terms or conditions of employment and privileges of
employment. See Employment Non-Discrimination Act of 2003, S. 1705, 108th Cong. § 4 (2003);
Employment Non-Discrimination Act of 2003, H.R. 3285, 108th Cong. § 4 (2003).

1087

N.Y. EXEC. LAW § 291 (McKinney 2003); enacted A.B. 1971 (225th Gen. Assembly, 1st Special
Session 2002) (enacted Dec. 17, 2002).

243

law.1088

SONDA does not provide for legal marriage between partners of the same

sex,1089

and does not address domestic partner benefits. 1090

During SONDA’s thirty-one year journey into law, a patchwork of

villages and municipalities and counties throughout the state passed antidiscrimination

1088

Before SONDA, New York courts did not allow gay men and lesbians to bring discrimination
claims based upon marital status under the State and City of New York Human Rights Laws. See Levin v.
Yeshiva Univ.
, 96 N.Y.2d 484, 490 (2001) (citing Manhattan Pizza Hut v. New York State Human Rights
Appeal Bd.
, 51 N.Y.2d 506 (1980) and Hudson View Props. v. Weiss, 59 N.Y.2d 733 (1983)). SONDA’s
enactment, however, has not resulted in a flood of litigation. In the single relevant case in 2003, the Nassau
County Supreme Court used the state’s sexual orientation antidiscrimination legislation as one justification
for allowing a gay man to sue for the wrongful death of his partner. See Langan v. St. Vincent’s Hosp., 765
N.Y.S.2d at 411 and discussion thereof, supra Section I.H.1.

1089

“Nothing in this legislation should be construed to create, add, alter or abolish any right to marry
that may exist under the constitution of the United States, or this state and/or the laws of this state.” N.Y.
EXEC. LAW § 291 (McKinney 2003); enacted A.B. 1971 (225th Gen. Assembly, 1st Special Session 2002)
(enacted Dec. 17, 2002).

1090

For example, subsetion 1 of New York Executive Law section 291 now reads, “The opportunity to
obtain employment without discrimination because of age, race, creed, color, national origin, sexual
orientation, military status, sex or marital status is hereby recognized as and declared to be a civil right”
(emphasis added). N.Y. EXEC. LAW § 291(1) (McKinney 2003); see also N.Y. EXEC. LAW § 292(27)
(McKinney 2003) (defining sexual orientation as “heterosexuality, homosexuality, bisexuality or
asexuality, whether actual or perceived”); N.Y. EXEC. LAW § 295(8), (9) (McKinney 2003) (authorizing
human rights advisory councils to study sexual orientation discrimination and providing for the
development of plans and policies to minimize or eliminate sexual orientation discrimination); N.Y. EXEC.
LAW § 296(1)(a)-(d) (McKinney 2003) (making sexual orientation discrimination by employers, licensing
agencies, employment agencies and labor organizations unlawful); N.Y. EXEC. LAW § 296(1-a)(b)-(d)
(McKinney 2003) (making sexual orientation discrimination in training programs unlawful); N.Y. EXEC.
LAW § 296(2)(a) (McKinney 2003) (making sexual orientation discrimination in public accommodation
unlawful); N.Y. EXEC. LAW § 296(2-a)(a)-(c) (McKinney 2003) (making sexual orientation discrimination
in public housing unlawful); N.Y. EXEC. LAW § 296(3-b) (McKinney 2003) (making sexual orientation
discrimination in real estate transactions unlawful); N.Y. EXEC. LAW § 296(4) (McKinney 2003) (making
sexual orientation discrimination in non-sectarian educational institutions unlawful); N.Y. EXEC. LAW
§ 296(5) (McKinney 2003) (making sexual orientation discrimination in housing unlawful (except in
single-family or owner-occupied two-family homes )); N.Y. EXEC. LAW § 296(9)(a) (McKinney 2003)
(making sexual orientation discrimination in fire departments unlawful); N.Y. EXEC. LAW § 296(13)
(McKinney 2003) (making sexual orientation discrimination in commerce unlawful); N.Y. EXEC. LAW
§296-a(1)-(2) (McKinney 2003) (making sexual orientation discrimination by creditors unlawful); N.Y.
CIV. RIGHTS LAW § 40-c (McKinney 2003) (recognizing equal protection for citizens of all sexual
orientations); N.Y. EDUC. LAW § 313(1)(a) (McKinney 2003) (making sexual orientation discrimination in
education unlawful); N.Y. EDUC. LAW § 313(3) (McKinney 2003) (making sexual orientation
discrimination in admissions to educational institutions unlawful). Although SONDA is comprehensive in
the areas in which it seeks to provide equal protection to gay, lesbian and bisexual New Yorkers, it does not
create “special rights” for these citizens. For instance, SONDA does not mandate the creation of hiring
quotas, require religious organizations to hire gay, lesbian or bisexual employees or force the owners of
single-family or owner-occupied two-family homes seeking rental income to rent out rooms to individuals
with whom they are uncomfortable.

244

legislation to protect gay, lesbian and bisexual citizens. The Village of Alfred was, in

1974, the first locality in New York to protect its residents from discrimination based on

sexual orientation.1091

By 2001, another nineteen jurisdictions had enacted some form of

legislation making discrimination based on sexual orientation unlawful, including New

York City in 1986, Onondaga County (Syracuse) in 1998, Westchester County in 1999

and the Buffalo Board of Education in 2000. When Governor Pataki stated in his January

9, 2002, State of the State address that “[t]here is no place in our society for bigotry,

intolerance or hatred,” his message reflected the State’s increasing legal protections

against sexual orientation discrimination.1092

6.

Action Taken by the Business Communities and by Other Localities
Outside of New York State

In addition to the statewide schemes available in Massachusetts, Vermont,

California, New Jersey and Hawai’i, a number of businesses and localities outside of

1091

Alfred, N.Y., Vill. Ordinance art. II, § 1 (1974); see also Empire State Pride Agenda, Sexual
Orientation Non-Discrimination Act: Chronology
, at http://www.espany.org/sonda/SONDA
Chronology.PDF (last visited Jan. 25, 2004).

1092

Governor George E. Pataki, Governor’s Remarks: State of the State Address (January 9, 2002),
available at http://www.state.ny.us/sos2002text.html. A similar message is contained in SONDA’s
legislative findings and intent:

The legislature reaffirms that the state has the responsibility to act to assure that
every individual within this state is afforded an equal opportunity to enjoy a full and
productive life, and that the failure to provide such equal opportunity . . . not only
threatens the rights and proper privileges of its inhabitants, but menaces the institutions
and foundation of a free democratic state and threatens the peace, order, health, safety
and general welfare of the state and its inhabitants.
The legislature further finds that many residents of this state have encountered
prejudice on account of their sexual orientation, and that this prejudice has severely
limited or actually prevented access to employment, housing and other basic necessities
of life, leading to deprivation and suffering. . . . [T]he legislature makes clear its action is
not intended to promote any particular attitude, course of conduct or way of life. Rather
its purpose is to ensure that individuals who live in our free society have the capacity to
make their own choices, follow their own beliefs and conduct their own lives as they see
fit, consistent with existing law.
N.Y. EXEC. LAW § 291 (McKinney 2003), enacted A.B. 1971 (225th Gen. Assembly, 1st Special Session
2002) (enacted Dec. 17, 2002).

245

New York have made available more limited benefits to gay and lesbian couples. Some

of these options are public and others private. Some businesses and localities provide

domestic partnership benefits to people of any sexual orientation, although others provide

them for only gay men and lesbians.1093

This section provides a broad overview of the

options available from the business community and state and local governments.1094

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