The opinion of the court was delivered by: Pigott, J.
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Plaintiff taxpayers challenge two directives by executive and county officials that recognize out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits. We conclude that plaintiffs' actions were properly dismissed.
Four states -- Massachusetts, Connecticut, Iowa and Vermont -- now issue marriage licenses to same-sex couples, without any residency requirement, as does Canada.*fn1 As a consequence, many same-sex couples who are residents of New York State have traveled to those jurisdictions and married. In light of these developments, several state and county officials have recently issued general directives relating to the recognition of those out-of-state same-sex marriages.*fn2 The present actions involve facial challenges to the legality of two of these directives, namely a Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service and an Executive Order issued by the County Executive of the County of Westchester.
In June 2006, defendant Andrew J. Spano, Westchester County Executive, citing opinion letters of the Attorney General and the Comptroller,*fn3 issued an Executive Order, with the following direction:
"WHEREAS, the County of Westchester has long provided health benefits to the qualifying domestic partners of its members; and WHEREAS, in September of 2002, the County of Westchester, in seeking to support all caring, committed and responsible family units, enacted its Domestic Partnership Registry Law, which allowed unmarried couples in committed relationships and who share common households to be able to register those relationships formally and to obtain a Certificate of Domestic Partnership, which serves as an independent verification of such partnership, and which may, in certain circumstances, be a condition precedent to receipt of benefits by such partners; . . . WHEREAS, Section 110.11 of the Laws of Westchester County places the responsibility to supervise, direct and control, subject to law, the administrative services and departments of the County upon the County Executive; . . .
NOW, THEREFORE, I, ANDREW J. SPANO, County Executive of the County of Westchester, in light of the aforementioned and in accordance with my statutory duties, do hereby order and direct each and every department, board, agency, and commission of the County of Westchester under my jurisdiction to recognize same sex marriages lawfully entered into outside the State of New York in the same manner as they currently recognize opposite sex marriages for the purposes of extending and administering all rights and benefits belonging to these couples, to the maximum extent allowed by law." (Westchester County Executive Order No. 3 of 2006.)
In September 2006, defendant Nancy G. Groenwegen, President of the New York State Civil Service Commission and Commissioner of the New York State Department of Civil Service, issued an Employee Benefits Division Policy Memorandum on "[r]ecognition of the spousal relationship in marriages between partners of the same sex conducted in jurisdictions where they may be legally performed," effective May 1, 2007. The Memorandum explained that the State had provided eligibility for employee benefits, including New York State Health Insurance Program benefits, to the domestic partners of State employees, including same-sex partners, since the mid-1990s. The coverage, while mandatory for the State itself, was discretionary for Participating Agencies (PAs) and Participating Employers (PEs). As a result, the State had been sued by an employee of a school district that had opted not to extend health insurance coverage to domestic partners (see Funderburke v New York State Dep't of Civ. Serv., 13 Misc 3d 284 [Sup Ct Nassau Co 2006], vacated 49 AD3d 809 [2d Dept 2008]). The Department of Civil Service then "determined that for purposes of benefits eligibility under NYSHIP and all other benefit plans administered by its Employee Benefits Division, it would recognize as spouses partners in same sex marriages legally performed in other jurisdictions. ...
Effective May 1, 2007, the Department of Civil Service recognizes, as spouses, the parties to any same sex marriage performed in jurisdictions where that marriage is legal. This policy applies to all health benefit plans provided under NYSHIP, including the Empire Plan, the Student Employees Health Plan and HMOs, and all other benefits administered by the Employee Benefits Division, including The New York State Dental and Vision Plans, the M/C Life Insurance Program and NYPERL. Recognition of these spouses is mandatory for the State and all other entities participating in NYSHIP, including all PAs and PEs." (Employee Benefits Division Policy Memorandum Number 129r1.)
In September 2006, plaintiffs Margaret Godfrey, Rosemarie Jarosz and Joseph Rossini, residents of and taxpayers in Westchester County, commenced an action against County Executive Andrew J. Spano, alleging two causes of action. In their first cause of action, brought pursuant to General Municipal Law § 51, plaintiffs claim that, by issuing Executive Order No. 3, Spano illegally legislated in the areas of marriage and domestic relations in a manner inconsistent with the New York State Constitution and State law. In their second cause of action, plaintiffs allege that Spano violated New York State Constitution art IX, § 2 (c) and Municipal Home Rule Law § 10 (1) (I). Plaintiffs seek a declaratory judgment that Executive Order No. 3 is "illegal, ultra vires, unconstitutional and otherwise null and void" and a permanent injunction preventing the implementation or effectuation of the Executive Order.
Michael Sabatino and Robert Voorheis, a same-sex couple who married in Canada, were permitted to intervene.*fn4 Spano and the intervenors moved to dismiss plaintiffs' complaint under CPLR 3211 (a) (7).
Supreme Court granted the motions to dismiss and declared that Executive Order No. 3 is "a valid exercise of the County Executive's power, not an illegal act, and does not violate the State Constitution or the Municipal Home Rule Law" (15 Misc 3d 809, 818). Plaintiffs appealed, and the Appellate Division, Second Department, unanimously affirmed (57 AD3d 941).
In regard to the Godfrey plaintiffs' first cause of action, the Appellate Division held that the Executive Order was not illegal, because it "requires that same-sex marriages be recognized to 'the maximum extent allowed by law.' By its terms, therefore, the Executive Order can never require recognition of such a marriage where it would be outside the law to do so." (Id. at 942-943.) In regard to the second cause of action, the court held that plaintiffs had failed to demonstrate the required "personal interest in the dispute beyond that of any taxpayer" (id. at 943), so that they lacked standing.
In the other case before us, plaintiffs Kenneth J. Lewis, Denise A. Lewis, Robert C. Houck, Jr., and Elaine A. Houck, New York State taxpayers represented by the same Alliance Defense Fund representing the plaintiffs in the case against Spano, commenced an action against the New York State Department of Civil Service and its Commissioner, Nancy G. Groenwegen, in May 2007. The Lewis plaintiffs allege that defendants violated State Finance Law § 123-b (first cause of action), the separation of powers doctrine (second cause of action), New York State Constitution art VII, § 8 (third cause of action), and State Administrative Procedure Act § 202 and New York State Constitution art IV, § 8 (fourth cause of action). Plaintiffs seek a declaratory judgment that defendants' recognition of outof-state same-sex marriages "is ...