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Court Asked To Strike Down Gay Pension Ruling

(New York City) A New York State court was asked Thursday to strike down a ruling in a long running battle over pension rights, that denied recognition of a same-sex couple's Canadian marriage.

Duke Funderburke, 72, married his partner of 42 years, Brad Davis, 67, in October of 2004 in a ceremony in Ontario, Canada.

Funderburke was a teacher at the Uniondale Union Free School District in Nassau County for over 20 years before retiring in 1986.

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 Funderburke's 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.

Lambda cited legal opinions months that were issued in 2004 by New York's Attorney General and State Comptroller, both clearly saying that out-of-state marriages of same-sex couples must be recognized in New York.

The court ruled against Funderburke and Lambda appealed.

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.

While the department's agreement resolved the pension issue itself, Lambda in its court action Thursday said the lower court's decision still technically stands and creates confusion about the status of the couple's marriage and of State law.

"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," said Susan Sommer, Senior Counsel at Lambda Legal.

"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."

Even though New York State recognizes same-sex marriages performed in areas where they are legal, gay and lesbian couples cannot marry in New York.

In 2006 the New York Court of Appeals, the state's highest court, ruled that same-sex couples do not have a constitutional right to marry. (story) It said that the issue, however, could be taken up by the Legislature.

Last year, Gov. Eliot Spitzer became the first governor in the country to introduce same-sex marriage legislation. (story)

The bill passed the Democrat-controlled Assembly in June (story) but Republicans who control the Senate have refused to consider the legislation.

©365Gay.com 2008

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