State Comptroller Alan Hevesi is countering a law suit filed against the New York State retirement system for providing Canadian-wed same-sex couples equal access to the state pension fund.

The law suit, filed by the Arizona-based Alliance Defense Fund (ADF) on behalf of four residents from Westchester County, claims that Hevesi exceeded his authority and acted illegally when he ruled in 2004 that the state pension fund would recognize same-sex marriages performed in other countries.

"We plan a vigorous defense because the law is clear: In New York State, we recognize marriages that have been conducted in Canada in accordance with Canadian laws—and that now includes same-sex marriages," Hevesi said.

As comptroller, Hevesi is the sole trustee and sole fiduciary of the New York State Local Retirement System (NYSLRS), which is valued at about $140 billion and serves 334,000 retirees and 648,000 current employees.

Dan Weiller, spokesperson for the comptroller’s office, explained that state employees can name anyone as a beneficiary, be they siblings, parents, spouses, partners, etc. But legal spouses are entitled to two additional benefits: an accidental death payment and a cost-of-living adjustment once a member dies.

Hevesi made the determination in response to an October 2004 inquiry from a state employee who was contemplating a Canadian marriage to his same-sex partner. The comptroller determined that such marriages would be recognized by the Retirement System under the principle of ‘comity,’ a legal doctrine which has been followed by New York State for many years.

"We did a very careful analysis of the law," said Weiller, explaining that while comity applies to legal marriages performed in other countries, it does not necessarily apply to legal marriages or civil unions performed in other states in the U.S.

Comptroller Hevesi has stressed that his ruling is based solely on the letter of the law and not his personal opinion regarding same-sex marriage.

"I have for many years believed that lesbians and gay men should have the right to marry in New York," he said. "But our October 2004 decision was a strictly legal determination based upon statutes and case law."

The Rochester Democrat and Chronicle reported that one of the plaintiffs, retired New York City teacher Margaret Godfrey of New Rochelle, said she was "very interested in this cause." She said she has also sued the City of New Rochelle for providing benefits to domestic partners.

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