New York Supreme Court Decision
Daniel Hernandez, et al., Appellants, v Victor L. Robles, & c., Respondent.
(Assorted passages)
Decided on July 6, 2006
No. 86
Daniel Hernandez, et al., Appellants, v Victor L. Robles, & c., Respondent.
Sylvia
Samuels, et al., Jason Seymour, et al., Appellants, Appellants,
v
The New York State Department of Julie Holcomb as City Clerk of Health and
the State of New York, the City of Ithaca, et al., Respondents. Respondents,
—- New York State Department of 3 No. 88 Health,
In the Matter of Elissa Kane, Respondent. et al., - Appellants,
John
Marsolais, Albany City Clerk et al., Respondents. —- Case No. 86: Susan L.
Sommer, for appellants. Leonard Koerner, for respondent. Peter H. Schiff,
for the Attorney General of the State of New York. New York State Catholic
Conference; New York State Conservative Party; Lesbian, Gay, Bisexual and
Transgender Law Association of Greater New York, Inc.; Women's Bar Association
of the State of New York, et al.; Academy for Jewish Religion, et al.; Empire
State Pride Agenda, et al.; Association of the Bar of the City of New York,
et al.; United Families International; City Action Coalition; New York County
Lawyers' Association
R. S. SMITH, J.:
We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature
Discussion
I
All the parties to these cases now acknowledge, implicitly or explicitly, that the Domestic Relations Law limits marriage to opposite-sex couples. Some amici, however, suggest that the statute can be read to permit same-sex marriage, thus mooting the constitutional issues. We find this suggestion untenable.
Articles 2 and 3 of the Domestic Relations Law, which govern marriage, nowhere say in so many words that only people of different sexes may marry each other, but that was the universal understanding when Articles 2 and 3 were adopted in 1909, an understanding reflected in several statutes. Domestic Relations Law § 12 provides that "the parties must solemnly declare . . . that they take each other as husband and wife." Domestic Relations Law § 15 (a) requires town and city clerks to obtain specified information from "the groom" and "the bride." Domestic Relations Law § 5 prohibits certain marriages as incestuous, specifying opposite-sex combinations (brother and sister, uncle and niece, aunt and nephew), but not same-sex combinations. Domestic Relations Law §50 says that the property of "a married woman . . . shall not be subject to her husband's control."
New York 's statutory law clearly limits marriage to opposite-sex couples. The more serious question is whether that limitation is consistent with the New York Constitution.
II
New York is one of many states in which supporters of same-sex marriage have asserted it as a state constitutional right. Several other state courts have decided such cases, under various state constitutional provisions and with divergent results ( e.g., Goodridge v Department of Public Health, 440 Mass 309, 798 NE2d 941 [2003] [excluding same-sex couples from marriage violates Massachusetts Constitution]; Standhardt v Superior Court, 206 Ariz 276, 77 P3d 451 [Ariz Ct App 2004] [constitutional right to marry under Arizona Constitution does not encompass marriage to same-sex partner]; Morrison v Sadler, 821 NE2d 15 [Ind 2005] [Indiana Constitution does not require judicial recognition of same-sex marriage]; Lewis v Harris, 378 NJ Super 168, 875 A2d 259 [2005] [limitation of marriage to members of opposite sex does not violate New Jersey Constitution]; Baehr v Lewin, 74 Haw 530, 852 P2d 44 [1993] [refusal of marriage licenses to couples of the same sex subject to strict scrutiny under Hawaii Constitution]; Baker v State, 170 Vt 194, 744 A2d 864 [1999] [denial to same-sex couples of benefits and protections afforded to married people violates Vermont Constitution]). Here, [*5] plaintiffs claim that, by limiting marriage to opposite-sex couples, the New York Domestic Relations Law violates two provisions of the State Constitution: the Due Process Clause (Article I, § 6: "No person shall be deprived of life, liberty or property without due process of law") and the Equal Protection Clause (Article I, § 11: "No person shall be denied the equal protection of the laws of this State or any subdivision thereof").
III
It is undisputed that the benefits of marriage are many. The diligence of counsel has identified 316 such benefits in New York law, of which it is enough to summarize some of the most important: Married people receive significant tax advantages, rights in probate and intestacy proceedings, rights to support from their spouses both during the marriage and after it is dissolved, and rights to be treated as family members in obtaining insurance coverage and making health care decisions. Beyond this, they receive the symbolic benefit, or moral satisfaction, of seeing their relationships recognized by the State.
The critical question is whether a rational legislature could decide that these benefits should be given to members of opposite-sex couples, but not same-sex couples. The question is not, we emphasize, whether the Legislature must or should continue to limit marriage in this way; of course the Legislature may (subject to the effect of the Federal Defense of Marriage Act, Pub L 104-199, 110 Stat 2419) extend marriage or some or all of its benefits to same-sex couples. We conclude, however, that there are at least two grounds that rationally support the limitation on marriage that the Legislature has enacted. Others have been advanced, but we will discuss only these two, both of which are derived from the undisputed assumption that marriage is important to the welfare of children.
First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true. The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement — in the form of marriage and its attendant benefits — to opposite-sex couples who make a solemn, long-term commitment to each other.
The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by art if icial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in opposite-sex relationships will help children more. This is one reason why the Legislature could rationally [*6] offer the benefits of marriage to opposite-sex couples only.
There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule — some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes — but the Legislature could find that the general rule will usually hold.
Plaintiffs seem to assume that they have demonstrated the irrationality of the view that opposite-sex marriages offer advantages to children by showing there is no scientific evidence to support it. Even assuming no such evidence exists, this reasoning is flawed. In the absence of conclusive scient if ic evidence, the Legislature could rationally proceed on the common-sense premise that children will do best with a mother and father in the home. (See Goodridge, 798 NE2d at 979-980 [Sosman, J., dissenting].) And a legislature proceeding on that premise could rationally decide to offer a special inducement, the legal recognition of marriage, to encourage the formation of opposite-sex households.
In sum, there are rational grounds on which the Legislature could choose to restrict marriage to couples of opposite sex. Plaint if fs have not persuaded us that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals. This is the question on which these cases turn. If we were convinced that the restriction plaint if fs attack were founded on nothing but prejudice — if we agreed with the plaintiffs that it is comparable to the restriction in Loving v Virginia (388 US 1 [1967]), a prohibition on interracial marriage that was plainly "designed to maintain White Supremacy" ( id. at 11) — we would hold it invalid, no matter how long its history. As the dissent points out, a long and shameful history of racism lay behind the kind of statute invalidated in Loving.
But the historical background of Loving is different from the history underlying this case. Racism has been recognized for centuries — at first by a few people, and later by many more — as a revolting moral evil. This country fought a civil war to eliminate racism's worst man if estation, slavery, and passed three constitutional amendments to eliminate that curse and its vestiges. Loving was part of the civil rights revolution of the 1950's and 1960's, the triumph of a cause for which many heroes and many ordinary people had struggled since our nation began. [*7]
The idea that same-sex marriage is even possible is a relatively new one. Until a few decades ago, it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of d if ferent sex. A court should not lightly conclude that everyone who held this belief was irrational, ignorant or bigoted. We do not so conclude.
IV
Our conclusion that there is a rational basis for limiting marriage to opposite-sex couples leads us to hold that that limitation is valid under the New York Due Process and Equal Protection Clauses, and that any expansion of the traditional definition of marriage should come from the Legislature. This Court is the final authority as to the meaning of the New York Constitution. This does not mean, of course, that we ignore the United States Supreme Court's interpretations of similarly worded clauses of the Federal Constitution. The governing principle is that our Constitution cannot afford less protection to our citizens than the Federal Constitution does, but it can give more (People v P.J. Video, Inc. , 68 NY2d 296, 302 [1986]). We have at times found our Due Process Clause to be more protective of rights than its federal counterpart, usually in cases involving the rights of criminal defendants ( e.g., People v LaValle, 3 NY3d 88 [2004]) or prisoners ( e.g., Cooper v Morin, 49 NY2d 69 [1979]). In general, we have used the same analytical framework as the Supreme Court in considering due process cases, though our analysis may lead to d if ferent results. By contrast, we have held that our Equal Protection Clause "is no broader in coverage than the federal provision" (Under 21 v City of New York , 65 NY2d 344, 360 n 6 [1985]).
We find no inconsistency that is sign if icant in this case between our due process and equal protection decisions and the Supreme Court's. No precedent answers for us the question we face today; we reject defendants' argument that the Supreme Court's ruling without opinion in Baker v Nelson (409 US 810 [1972]) bars us from considering plaintiffs' equal protection claims. But both New York and Federal decisions guide us in applying the Due Process and Equal Protection Clauses.
By limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination. The limitation does not put men and women in d if ferent classes, and give one class a benefit not given to the other. Women and men are treated alike — they are permitted to marry people of the opposite sex, but not people of their own sex. This is not the kind of sham equality that the Supreme Court confronted in Loving ; the statute there, prohibiting black and white people from marrying each other, was in substance anti-black legislation. Plaintiffs do not [*9] argue here that the legislation they challenge is designed to subordinate either men to women or women to men as a class.
In arguing that the definition is overinclusive, plaint if fs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.
Rational basis scrutiny is highly indulgent towards the State's class if ications (see Heller v Doe, 509 US 312, 320-321 [1993]). Indeed, it is "a paradigm of judicial restraint" (Affronti v Crosson, 95 NY2d 713, 719 [2001], cert denied, 534 US 826 [2001]). We conclude [*10] that permitting marriage by all opposite-sex couples does not create an irrationally over-narrow or overbroad class if ication. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.
V
We hold, in sum, that the Domestic Relations Law's limitation of marriage to opposite-sex couples is not unconstitutional. We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong. We have presented some (though not all) of the arguments against same-sex marriage because our duty to defer to the Legislature requires us to do so. We do not imply that there are no persuasive arguments on the other side — and we know, of course, that there are very powerful emotions on both sides of the question.
The dissenters assert confidently that "future generations" will agree with their view of this case (dissenting op at 28). We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result — as many undoubtedly will be — will respect it as people in a democratic state should respect choices democratically made.
GRAFFEO, J. (concurring):
We are asked by the 44 same-sex couples who commenced these four cases to declare that the denial of marriage licenses to same-sex couples violates the Due Process and Equal Protection Clauses of the New York Constitution. Plaint if fs and petitioners (collectively referred to as plaintiffs) are representative of many homosexual couples living in committed relationships in our State, some of whom are raising children. They seek the societal recognition and legal and financial benefits accorded by the State to legally married couples. Respondents are the State of New York , the State Department of Health and local officials from the cities of New York , Albany and Ithaca who are involved either in overseeing the New York marriage licensing process or issuing marriage licenses. [*11]
Plaintiffs assert that the restriction of marriage to opposite-sex couples impedes the fundamental right to marry and amounts to gender or sexual orientation discrimination that does not withstand any level of constitutional analysis, whether strict scrutiny, intermediate scrutiny or rational basis review. Because the determination of the proper level of constitutional review is crucial to the judicial resolution of the issues in this case, I write separately to elaborate on the standard of review that should be applied under the precedent of this Court and the United States Supreme Court. I conclude that rational basis analysis is appropriate and, applying this standard, I concur in the result reached by the plurality that an affirmance is warranted in each of these cases.
This Court has long recognized that "[f]rom time immemorial the State has exercised the fullest control over the marriage relation," going so far as to observe that "[t]here are, in effect, three parties to every marriage, the man, the woman and the State" (Fearon v Treanor, 272 NY 268, 272 [1936], app dismissed 301 US 667 [1937]). The historical conception of marriage as a union between a man and a woman is reflected in the civil institution of marriage adopted by the New York Legislature. The cases before us present no occasion for this Court to debate whether the State Legislature should, as a matter of social welfare or sound public policy, extend marriage to same-sex couples. Our role is limited to assessing whether the current statutory scheme offends the Due Process or Equal Protection Clauses of the New York Constitution. Because it does not, we must affirm. Absent a constitutional violation, we may not disturb duly enacted statutes to, in effect, substitute another policy preference for that of the Legislature.
The Statutory Scheme:
As a preliminary matter, although plaint if fs have abandoned the argument (raised in Supreme Court in both Kane and Seymour) that the Domestic Relations Law already authorizes same-sex marriage because it does not explicitly define marriage as a union between one man and one woman, several amici continue to suggest that this Court can avoid a constitutional analysis by simply interpreting the statutory scheme to allow same-sex marriage. Our role when construing a statute is to ascertain and implement the will of the Legislature unless we are prevented from doing so by constitutional infirmity. It would be inappropriate for us to interpret the Domestic Relations Law in a manner that virtually all concede would not comport with legislative intent.
There is no basis to conclude that, when the Legislature adopted the Domestic Relations Law more than a century ago, it contemplated the possibility of same-sex marriage, much less intended to authorize it. In fact, the Domestic Relations Law contains many references to married persons that demonstrate that the Legislature viewed marriage as a union between one woman and one man — as seen by references to the parties to a marriage as the "bride" and "groom" (Domestic Relations Law §15[1][a]) and "wife" and "husband" (Domestic Relations Law §§ 6, 12, 221, 248; see also CPLR 4502[b]). Notably, high courts of other states with statutory schemes comparable to New York's have interpreted the pertinent statutes as not authorizing same-sex marriage ( see Goodridge v Dept. of Public Health, 440 Mass 309 [2003]; Baker v Nelson, 291 Minn 310 [1971], app dismissed 409 US 810 [1972]). And several of our prior cases alluded to the fact that the Domestic Relations Law precludes same-sex couples from marrying ( Levin v Yeshiva Univ., 96 NY2d 484, 494 [2001]; Braschi v Stahl Assoc. Co. , 74 [*12] NY2d 201, 210 [1989]). Because the Domestic Relations Law does not authorize marriage between persons of the same sex, this Court must address plaint if fs' constitutional challenges to the validity of the marriage scheme, which are at the heart of this litigation.
Due Process:
Plaintiffs argue that the Domestic Relations Law violates article I, § 6 of the New York Constitution, which provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Their substantive due process challenge is predicated on the assertion that the New York Constitution precludes the State from defining marriage as a union between one man and one woman because the right to privacy derived therein grants each individual the unqualified right to select and marry the person of his or her choice. If the Due Process Clause encompasses this right, and if it is one of the bundle of rights deemed "fundamental" as plaintiffs contend, the Domestic Relations Law would be subjected to the most demanding form of constitutional review, with the State having the burden to prove that it is narrowly tailored to serve compelling state interests.
But it is an inescapable fact that New York due process cases and the relevant federal caselaw cited therein do not support plaintiffs' argument. While many U.S. Supreme Court decisions recognize marriage as a fundamental right protected under the Due Process Clause, all of these cases understood the marriage right as involving a union of one woman and one man (see e.g. Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434 US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner v Oklahoma, 316 US 535 [1942]). Whether interpreting New York 's Due Process Clause or its federal counterpart (which is textually identical), when this Court has addressed the fundamental right to marry, it has relied on federal precedent and similarly used the word "marriage" in its traditional sense. For example, in Cooper v Morin, we grounded the right of pretrial detainees to have contact visits with family on the "fundamental right to marriage and family life . . . and to bear and rear children" (49 NY2d 69, 80 [1979], cert denied 446 US 984 [1980]), citing U.S. Supreme Court cases highlighting the link between marriage and procreation. As the Third Department aptly noted in Samuels, to ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.
Nor has this Court recognized a due process right to privacy distinct from that articulated by the U.S. Supreme Court. Although our Court has interpreted the New York Due Process Clause more broadly than its federal counterpart on a few occasions, all of those cases involved the rights of criminal defendants, prisoners or pretrial detainees, or other confined individuals and implicated classic liberty concerns beyond the right to privacy. Most recently, in People v LaValle (3 NY3d 88 [2004]), the Court concluded that the anticipatory deadlock charge in the Death Penalty Act violated New York's Due Process Clause, even though it may have been upheld under the United States Constitution. Likewise, in Cooper (49 NY2d 69), we held that the New York Due Process Clause protected the right of pretrial detainees in a county jail to have non-conjugal contact visits with family members, even though no such right had been deemed protected under the Federal Due Process Clause. Even then, our analysis did not turn on recognition of broader family privacy rights than those articulated by the Supreme Court. Rather, [*13] the analysis focused on rejection of the rational basis test that the Supreme Court then applied to assess jail regulations, [FN1] with this Court instead adopting a test that "balanc[ed] . . . the harm to the individual resulting from the condition imposed against the benefit sought by the government through its enforcement" ( id. at 79).
Most of our Due Process Clause decisions in the right to privacy realm have cited federal authority interchangeably with New York precedent, making no distinction between New York's constitutional provision and the Federal Due Process Clause ( see e.g. Hope v Perales , 83 NY2d 563, 575 [1994]; Matter of Raquel Marie X. , 76 NY2d 387 [1990], cert denied 498 US 984 [1990]; Matter of Doe v Coughlin, 71 NY2d 48 [1987], cert denied 488 US 879 [1988]; Rivers v Katz , 67 NY2d 485 [1986]). Our Court has not recognized a fundamental right to marry that departs in any respect from the right defined by the U.S. Supreme Court in cases like Skinner which acknowledged that marriage is "fundamental to the very existence and survival of the [human] race" because it is the primary institution supporting procreation and child-rearing (316 US at 541; see also Zablocki , 434 US 374; Griswold , 381 US 479). The binary nature of marriage its inclusion of one woman and one man reflects the biological fact that human procreation cannot be accomplished without the genetic contribution of both a male and a female. Marriage creates a supportive environment for procreation to occur and the resulting offspring to be nurtured. Although plaint if fs suggest that the connection between procreation and marriage has become anachronistic because of scient if ic advances in assisted reproduction technology, the fact remains that the vast majority of children are conceived naturally through sexual contact between a woman and a man.
Plaintiffs' reliance on Loving v Virginia (388 US 1 [1967]) for the proposition that the U.S. Supreme Court has established a fundamental "right to marry the spouse of one's choice" outside the male/female construct is misplaced. In Loving , an interracial couple argued that Virginia 's anti-miscegenation statute, which precluded "any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian" (id. at 5 n 4), violated the Federal Due Process and Equal Protection Clauses. The statute made intermarriage in violation of its terms a felony carrying a potential jail sentence of one to five years. The Lovings a white woman and a black man had married in violation of the law and been convicted, prompting them to challenge the validity of the Virginia law.
The Supreme Court struck the statute on both equal protection and due process grounds, but the focus of the analysis was on the Equal Protection Clause. Noting that "[t]he clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States," the Court applied strict scrutiny review to the racial class if ication, finding "no legitimate overriding purpose independent of invidious racial discrimination which justifies this class if ication" (id. at 10-11). It made clear "that restricting the freedom to marry solely because of racial class if ications violates the central meaning of the [*14] Equal Protection Clause" (id. at 12). There is no question that the Court viewed this anti-miscegenation statute as an affront to the very purpose for the adoption of the Fourteenth Amendment to combat invidious racial discrimination.
In its brief due process analysis, the Supreme Court reiterated that marriage is a right "fundamental to our very existence and survival" (id., citing Skinner, 316 US 535, 541) a clear reference to the link between marriage and procreation. It reasoned: "To deny this fundamental freedom on so unsupportable a basis as the racial class if ications embodied in these statutes . . . is surely to deprive all the State's citizens of liberty without due process of law" (id.). Although the Court characterized the right to marry as a "choice," it did not articulate the broad "right to marry the spouse of one's choice" suggested by plaint if fs here. Rather, the Court observed that "[t]he Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations " ( id. [emphasis added]) FN2]. Needless to say, a statutory scheme that burdens a fundamental right by making conduct criminal based on the race of the individual who engages in it is inimical to the values embodied in the State and Federal Due Process Clauses. Far from recognizing a right to marry extending beyond the one woman and one man union, [FN3] it is evident from the Loving decision that the Supreme Court viewed marriage as fundamental precisely because of its relationship to human procreation. [FN4] [*15]
Nor does the Supreme Court's recent Federal due process analysis in Lawrence v Texas (539 US 558 [2003]) support defining the fundamental marriage right in the manner urged by plaint if fs. In Lawrence, the Court overruled its prior decision in Bowers v Hardwick (478 US 186 [1986]) and struck as unconstitutional a Texas statute that criminalized consensual sodomy between adult individuals of the same sex. The holding in Lawrence is consistent with our Court's decision in People v Onofre (51 NY2d 476 [1980], cert denied 451 US 987 [1981]), which invalidated under a federal due process analysis a New York penal law provision that criminalized consensual sodomy between non-married persons.
In Lawrence the Supreme Court did not create any new fundamental rights, nor did it employ a strict scrutiny analysis. It acknowledged that laws that criminalize sexual conduct between homosexuals "have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals" (539 US at 567).
Criticizing the historical analysis in Bowers , it noted that, even
though sodomy as well as other nonprocreative sexual activity had been proscribed,
criminal statutes "directed at homosexual conduct as a distinct matter"
(id. at 568) were of recent vintage, having developed in the last
third of the 20th century, and therefore did not possess "ancient roots"
(id. at 570).
Consistent with our analysis in Onofre, the Lawrence Court held "that adults may choose to enter upon this relationship in the confines of their home and their own private lives and still retain their dignity as free persons" (id. at 567) because "liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex" (id. at 572). It reasoned that "moral disapproval" the only just if ication Texas proffered for its law is never an adequate basis for a criminal statute, a conclusion similar to this Court's observation in Onofre that "it is not the function of the Penal Law in our governmental policy to [*16] provide either a medium for the articulation or the apparatus for the intended enforcement of moral or theological values" (51 NY2d at 488 n 3). Thus, in striking the sodomy law, the Supreme Court found that "[t]he Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual" (Lawrence, 539 US at 578).
The right affirmed by the Supreme Court in Lawrence is not comparable to the new right to marry plaint if fs assert here, nor is the Texas statute criminalizing homosexual sodomy analogous to the marriage statutes under review. The Domestic Relations Law is not a penal provision and New York has not attempted to regulate plaint if fs' private sexual conduct or disturb the sanctity of their homes. And, in contrast to the Texas statute, New York 's marriage laws are part of a longstanding tradition with roots dating back long before the adoption of our State Constitution.
New York 's Due Process Clause simply does not encompass a fundamental right to marry the spouse of one's choice outside the one woman/one man construct. Strict scrutiny review of the Domestic Relations Law is therefore not warranted and, insofar as due process analysis is concerned, the statutory scheme must be upheld unless plaint if fs prove that it is not rationally related to any legitimate state interest.
Equal Protection:
Plaint if fs contend that, even if strict scrutiny analysis is not appropriate under the Due Process Clause, a heightened standard of review is nonetheless mandated under the Equal Protection Clause because New York 's marriage laws create gender and sexual orientation class if ications that require a more rigorous level of analysis than rational basis review.
The Equal Protection Clause, added to the New York Constitution in 1938, provides:
"No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency of subdivision of the state" (NY Const Art I, § 11).
Soon after the adoption of this provision, this Court recognized that it was
modeled after its federal counterpart and "embodies" the federal
equal protection command (Dorsey v Stuyvesant Town Corp., 299 NY
512, 530 [1949], cert denied 339 US 981 [1950]; see also ,
Under 21, Catholic Home Bur. for Dependent Children v City of New York
, 65 NY2d 344, 360 n 6 [1985] ["the State constitutional equal protection
clause . . . is no broader in coverage than the Federal provision"]).
Accordingly, this Court has consistently cited federal cases and applied federal
analysis to resolve equal protection claims brought under the Federal and
State Constitutions ( see e.g. Matter of Aliessa v Novello, 96 NY2d
418 [2001]; People v Liberta, 64 NY2d 152 [1984], cert denied
471 US 1020 [1985]).
The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike" (City of Cleburne v Cleburne Living Ctr., 473 US 432, 439 [1985]). Both the U.S. Supreme Court and this Court have applied three levels of review to legislative class if ications. "[W]hen a statute class if ies by race, alienage, or national origin," (id. [*17] at 440) or when it burdens a fundamental right protected under the Due Process Clause, it is subjected to strict scrutiny meaning that it will be sustained only if it is narrowly tailored to serve a compelling state interest (see Golden v Clark, 76 NY2d 618, 623 [1990]). Class if ications based on gender or illegitimacy are reviewed under an intermediate level of scrutiny meaning they will be sustained if "substantially related to the achievement of an important governmental objective" (Liberta, 64 NY2d at 168). Neither the Supreme Court nor this Court has recognized any other class if ications as triggering heightened scrutiny and, therefore, all other statutory distinctions have been sustained if rationally related to a legitimate government interest ( see e.g. Golden, 76 NY2d 618).
Plaintiffs argue that the Domestic Relations Law creates a class if ication based on gender that requires intermediate scrutiny because a woman cannot marry another woman due to her gender and a man cannot marry another man due to his gender. Respondents counter that the marriage laws are neutral insofar as gender is concerned because they treat all males and females equally neither gender can marry a person of the same sex and both can marry persons of the opposite sex.
Respondents interpretation more closely comports with the analytical framework for gender discrimination applied by this Court and the Supreme Court. The precedent establishes that gender discrimination occurs when men and women are not treated equally and one gender is benefitted or burdened as opposed to the other. For example, in Liberta (64 NY2d 152), we held that the Penal Law's restriction of the crime of forcible rape to male offenders constituted gender discrimination and the restriction was struck on the basis that it failed to meet the intermediate scrutiny standard. Men and women were not treated equally because only men could be convicted of forcible rape; women who engaged in precisely the same conduct could not be charged or convicted of the same offense. Similarly, in Mississippi Univ. for Women v Hogan (458 US 718 [1982]), the Supreme Court found that a publically-funded state university that refused to allow men admission to its nursing program had engaged in gender discrimination. The university improperly privileged female students by allowing them a benefit not available to similarly-situated male applicants. Likewise, in J.E.B. v Alabama (511 US 127 [1994]), a prosecutor was determined to have engaged in gender discrimination when he exercised 9 of his 10 peremptory challenges to strike males from the venire panel resulting in an all-female jury. There, the prosecutor did not apply jury selection criteria equally among males and females he used almost all of his challenges to exclude men from the jury.
Plaint if fs cite Loving for the proposition that a statute can discriminate even if it treats both classes identically. This misconstrues the Loving analysis because the anti-miscegenation statute did not treat blacks and white identically it restricted who whites could marry (but did not restrict intermarriage between non-whites) for the purpose of promoting white supremacy. Virginia 's anti-miscegenation statute was the quintessential example of invidious racial discrimination as it was intended to advantage one race and disadvantage all others, which is why the Supreme Court applied strict scrutiny and struck it down as violating the core interest of the Equal Protection Clause.
In contrast, neither men nor women are disproportionately disadvantaged or burdened by the fact that New York 's Domestic Relations Law allows only opposite-sex couples to marry both genders are treated precisely the same way. As such, there is no gender [*18] class if ication triggering intermediate scrutiny.
Nor does the statutory scheme create a class if ication based on sexual orientation. In this respect, the Domestic Relations Law is facially neutral: individuals who seek marriage licenses are not queried concerning their sexual orientation and are not precluded from marrying if they are not heterosexual. Regardless of sexual orientation, any person can marry a person of the opposite sex. Certainly, the marriage laws create a class if ication that distinguishes between opposite-sex and same-sex couples and this has a disparate impact on gays and lesbians. However, a claim that a facially-neutral statute enacted without an invidious discriminatory intent has a disparate impact on a class (even a suspect class, such as one defined by race) is insufficient to establish an equal protection violation [FN5] ( see Campaign for Fiscal Equity v State of New York , 86 NY2d 307, 321 [1995]; People v New York City Tr. Auth. , 59 NY2d 343, 350 [1983]; Washington v Davis, 426 US 229, 240 [1976]). Plaint if fs concede that the Domestic Relations Law was not enacted with an invidiously discriminatory intent the Legislature did not craft the marriage laws for the purpose of disadvantaging gays and lesbians (cf. Romer v Evans, 517 US 620 [1996]). Hence, there is no basis to address plaintiffs' argument that class if ications based on sexual orientation should be subjected to intermediate scrutiny.
Rational Basis Review:
Thus, under both the Due Process and Equal Protection Clauses, these cases turn on whether the Legislature's decision to confine the institution of marriage to couples composed of one woman and one man is rationally related to any legitimate state interest. In Affronti v Crosson (95 NY2d 713, 719 [2001], cert denied 534 US 826 [2001] [internal quotation marks, citations and brackets omitted]), we explained that "[t]he rational basis standard of review is a paradigm of judicial restraint. On rational basis review, a statute will be upheld unless the disparate treatment is so unrelated to the achievement of any combination of legitimate purposes that it is irrational. Since the challenged statute is presumed to be valid, the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it whether or not the basis has a foundation in the record. Thus, those challenging the legislative judgment must convince the court that the legislative facts on which the class if ication is apparently based could not reasonably be conceived to be true by the governmental decisionmaker."
Especially in the realm of social or economic legislation, "the Equal
Protection Clause allows the States wide latitude . . . and the Constitution
presumes that even improvident decisions will eventually be rect if ied by
the democratic processes" (City of Cleburne, 473 US at 440;
see generally Lovelace v Gross, 80 NY2d 419, 427 [1992]).
In these cases, respondents articulate a number of interests that they claim are legitimate and are advanced by the current definition of marriage. Given the extremely deferential standard of review, plaintiffs cannot prevail unless they establish that no conceivable [*19] legitimate interest is served by the statutory scheme. This means that if this Court finds a rational connection between the classification and any single governmental concern, the marriage laws survive review under both the Due Process and Equal Protection Clauses.
As set forth in the plurality opinion, plaintiffs have failed to negate respondents' explanation that the current definition of marriage is rationally related to the state's legitimate interest in channeling opposite-sex relationships into marriage because of the natural propensity of sexual contact between opposite-sex couples to result in pregnancy and childbirth. Of course, marriage can and does serve individual interests that extend well beyond creating an environment conducive to procreation and child-rearing, such as companionship and emotional fulfilment. But here we are concerned with the State's interest in promoting the institution of marriage. As Justice Robert Cordy pointed out in his dissent in Goodridge v Dept. of Public Health (440 Mass at 381-382 [Cordy, J., dissenting]):
"Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of civil society . . . Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated and socialized. . . [A]n orderly society requires some mechanism for coping with the fact that sexual intercourse [between a man and a woman] commonly results in pregnancy and childbirth. The institution of marriage is that mechanism."
Since marriage was instituted to address the fact that sexual contact between a man and a woman naturally can result in pregnancy and childbirth, the Legislature's decision to focus on opposite-sex couples is understandable. It is not irrational for the Legislature to provide an incentive for opposite-sex couples for whom children may be conceived from casual, even momentary intimate relationships to marry, create a family environment, and support their children. Although many same-sex couples share these family objectives and are competently raising children in a stable environment, they are simply not similarly situated to opposite-sex couples in this regard given the intrinsic d if ferences in the assisted reproduction or adoption processes that most homosexual couples rely on to have children.
As respondents concede, the marriage class if ication is imperfect and could be viewed in some respects as overinclusive or underinclusive since not all opposite-sex couples procreate, opposite-sex couples who cannot procreate may marry, and opposite-sex partners can and do procreate outside of marriage. It is also true that children being raised in same-sex households would derive economic and social benefits if their parents could marry. But under rational basis review, the classification need not be perfectly precise or narrowly tailored all that is required is a reasonable connection between the class if ication and the interest at issue. In light of the history and purpose of the institution of marriage, the marriage classification in the Domestic Relations Law meets that test.
The Legislature has granted the benefits (and responsibilities) of marriage to the class opposite-sex couples that it concluded most required the privileges and burdens the [*20] institution entails due to inherent procreative capabilities. This type of determination is a central legislative function and lawmakers are afforded leeway in fulfilling this function, especially with respect to economic and social legislation where issues are often addressed incrementally (see Federal Communication Commission v Beach Communications, 508 US 307, 315-316 [1993]). It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate. Because the New York Constitution does not compel such a revision of the Domestic Relations Law, the decision whether or not to do so rests with our elected representatives.
#86 - Hernandez v Robles
#87 - Samuels v New York State Department of Health
#88 - Matter of Kane v Marsolais
#89 - Seymour v Holcomb
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