A Manhattan Judge Validates Gay Marriage, Creating a Split Among New York Courts,
And Setting the Stage for a Court of Appeals Ruling

By JOANNA GROSSMAN


lawjlg@hofstra.edu
----
Tuesday, Feb. 08, 2005

Last Friday, a Manhattan trial court held that the New York State constitution does not permit same-sex couples to be excluded from civil marriage. The decision, in Hernandez v. Robles, is the first from a New York court to declare a right of same-sex marriage.

The right, according to the court, is rooted in the New York Constitution. (The plaintiffs did not invoke the U.S. Constitution, probably because so far, state supreme courts have been more receptive to same-sex marriage claims than the U.S. Supreme Court is predicted to be.)

Previously, courts in two other New York counties had interpreted the New York Constitution to reach the opposite conclusion, however. Both Shields v. Madigan, the ruling of a court in Rockland County, and Samuels v. New York State Department of Health, the ruling of a court in Albany County, had held that there is no New York constitutional right to same-sex marriage.

This split among the county courts probably means that eventually, New York State's highest court - the Court of Appeals - will have to rule on the validity of a ban on same-sex marriage.

Meanwhile, the remedy the court mandated paves the way for same-sex couples to obtain marriage licenses, as long as the decision survives appeal, whether or not the legislature conforms its statutes to the ruling. The court might have invalidated the entire marriage code, having held it unconstitutional in one respect. Instead -- subject to a thirty-day stay -- it ordered that the relevant New York statutory provisions be reinterpreted by the City Clerk to include same-sex couples.

The ruling in Hernandez is also interesting in that it topped off a busy two weeks on the gay marriage front, as I will explain, with developments favoring parties on both sides of the issue.

Hernandez v. Robles: The Plaintiffs, the Facts, and Some Interesting Background

In March 2004, five New York City couples filed suit against the City Clerk, Victor Robles, for refusing to issue them marriage licenses. The facts in the case were not in dispute: The couples - diverse in race, class, gender, and religion - were all cohabiting and in committed, longstanding relationships. Several were also co-parenting children. And each couple had suffered specific, important, and often tangible hardships associated with the denial of a marriage license.

Interestingly, one of the plaintiffs had parents who themselves had had to negotiate legal barriers - because they were of different races - before marrying. Forbidden to marry in Texas, the couple had moved to California - which, in 1948, in Perez v. Sharp, had become the first State to declare an anti-miscegenation law unconstitutional. (The U.S. Supreme Court did not so hold until1967, in Loving v. Virginia.) It was this story with which the Manhattan court, in 2005, chose to begin its opinion.

The contemporary couples sued to demand that the court recognize their right to marry under New York law.

Does the New York Code Ban Same-Sex Marriage In the First Place?

To begin, the plaintiffs argued that New York's domestic relations code does not ban same-sex marriage in the first place, for the core definition of marriage, contained in DRL § 10, makes no reference to the sex of the parties. (Several other times, however, the state's domestic relations law does refer to "husband" or "wife," or to a "woman" and her "husband.")

The Manhattan court rejected the argument that the legislature intended to allow same-sex marriage simply because it did not forbid it. That ruling was not surprising: In May 2004, the state's well-known Attorney General, Eliot Spitzer, had issued an opinion to the same effect, and the two prior county courts had also reached the same conclusion.

The touchstone of a court's process of statutory interpretation is legislative intent, and it is hard to argue that any state legislature operating decades, or even centuries, ago intended to implicitly authorize same-sex marriage. After all, gay rights activists did not raise same-sex marriage as an issue until the early 1970s.

(The same argument - that the statutes permitted gay marriage because they did not explicitly ban - similarly failed in Massachusetts. There, the State's highest court ultimately recognized gay marriage on constitutional rather than statutory grounds - in Goodridge v. Dep't of Public Health, and Baker v. State.)

Does the State Constitution Require that Same-Sex Couples be Allowed to Marry?

After rejecting a claim that New York statutes allow same-sex marriage, the court moved on to the question of whether the New York constitution prohibits this type of discrimination in the granting of marriage licenses.

Like many state constitutions, the New York Constitution draws some of its boundaries from the federal constitution. But as the Manhattan court pointed out, the New York constitution also generally grants broader individual rights than its federal counterpart.

For example, it was in 1980 that the New York Court of Appeals, in People v. Onofre, interpreted the New York Constitution to invalidate the state's anti-sodomy law. The U.S. Supreme Court did not interpret the U.S. Constitution to do the same until its 2003 ruling in Lawrence v. Texas).

The plaintiff invoked two constitutional provisions: The New York Constitution's Equal Protection Clause, and its Due Process Clause. The court ruled that each clause, independently, rendered a same-sex marriage ban unconstitutional.

The equal protection analysis was straightforward and brief: The court reasoned that a ban on same-sex marriage constitutes sexual orientation discrimination, and concluded that there was no legitimate state interest that could justify such a ban.

The due process analysis, however, was somewhat more complicated.

The Due Process Argument that the Court Accepted

Like the U.S. Constitution, the New York Constitution protects the right to marry under its Due Process Clause. (This right is just one of a number of rights that are encompassed in a broader right to privacy - including the rights to make one's own decisions about marriage, procreation, and the raising of children.)

The right to marry, the court noted, protects the choice of whom to marry. And telling the plaintiffs they cannot marry the person of their choosing thwarts that choice.

Because it deemed the right to marry a fundamental right, the Manhattan court applied strict scrutiny--the highest standard of review in constitutional jurisprudence - to the New York laws allowing only opposite-sex marriage.

Under that standard, the state must provide a compelling justification for the law. Here, the defendant offered two justifications for banning same-sex marriage.

First, the defendant argued, the same-sex marriage ban preserves the institution of marriage in its traditional form. But, as the court pointed out, traditional marriage has already changed profoundly over time. For centuries, married women were legally subsumed by their husbands, pursuant to the common law doctrine of coverture, but that aspect of traditional marriage was long ago abandoned. Moreover, "nontraditional" families are very much a part of our modern experience - headed by single parents, by grandparents, by adoptive parents, and so on.

Second, the defendant argued, the same-sex marriage ban avoids complications with respect to out-of-state recognition of New York same-sex marriages.

The court conceded that such practical complications will ensue; four-fifths of the states have explicitly refused to recognize same-sex marriages. New York courts have always been respectful of other states with laxer marriage standards than their own state's - recognizing, for instance, out-of-state common-law marriages, proxy marriages, and marriages between certain relatives. But when it comes to same-sex marriage, other states are unlikely to return the favor.

But in the end, the court did not find these practical hassles a good enough reason to fail to honor individuals' important right to marry the person of their choosing.

This ruling was wise. For one thing, recognition of new civil rights has never been done all at once, and some states have always been slower than others to catch on. Worrying about out-of-state recognition would, in effect, allow other states' laws to control New York law.

Moreover, New York has never allowed that before; in family law, it's been a leader, not a follower - taking its own idiosyncratic path. For more than a century, for instance, New York maintained one of the strictest divorce laws in the nation - permitting divorce only on grounds of adultery. Even today, New York is the only state without a true, unencumbered no-fault ground for divorce.

In sum, New York has beaten its own path in family law, and has respected other states' divergent paths; it should not be legally inhibited by their failure to similarly respect New York's own family law standards.

The Court's Ruling Accords with New York Public Policy

The Hernandez court correctly noted that its decision accorded not only with the best interpretation of New York's Constitution, but also with New York's "evolving commitment" to providing protection for same-sex unions.

By state statute, New York gays and lesbians have been granted protection against discrimination in employment, education, and housing. By city ordinance, gay couples have been permitted to register as domestic partners and receive an assortment of rights associated with that status.

Judicially, New York courts have upheld second-parent adoptions, and held same-sex partners to constitute "family" for purposes of rent-control regulations and "spouses" for purposes of wrongful death lawsuits.

Other New Developments: More Gay Marriage Legislation and Decisions

As noted above, the New York decision capped off two weeks of notable same-sex marriage developments.

Internationally, the ruling party in Canada introduced a bill to recognize same-sex civil marriages across the country. The Canadian Supreme Court cleared the way at the end of last year for this bill -- ruling, as I have discussed in a previous column, in an advisory capacity that allowing same-sex marriage is consistent with the Canadian Charter of Rights and Freedoms. The bill is expected to become law.

Other recent developments, however, have for the most part been anti-same-sex marriage. Nationally, President Bush, has renewed calls for federal action. In his annual State of the Union address, he stated: "For the good of families, children and society, I support a constitutional amendment to protect the institution of marriage." (This proposed amendment is discussed in a recent column for this site co-authored by Vikram Amar and Alan Brownstein.)

In the courts, there have been other recent developments as well. The first lawsuit filed by a same-sex couple seeking recognition of their Massachusetts marriage elsewhere was turned back by a federal district court in Florida.

In Wilson v. Ake, a lesbian couple had sought a declaration that their marriage was valid for federal and Florida law purposes. To issue such a declaration, the court would have had to invalidate both the Federal Defense of Marriage Act, which defines marriage as involving only a man and woman, and the Florida statutes defining marriage the same way and expressly forbidding courts to recognize same-sex marriages from other states. The court in Wilson declined to invalidate any of the relevant statutes.

On the same day, the Louisiana Supreme Court reinstated an amendment to the state's constitution banning same-sex marriage, which had been briefly derailed by a technical challenge to the amendment process.

And the very next day, in Indiana, the state's Court of Appeals refused to invalidate its law prohibiting recognition of same-sex marriages from other states, even if the marriages were valid where celebrated.

There was activity in state legislatures, too, with mixed results. The Kansas House of Representatives approved a constitutional amendment banning both same-sex marriage and civil unions (to be voted on by residents in April), while the Idaho Senate failed to muster the votes to pass a similar amendment for their state.

What's the lesson here? It is, quite simply, that this fight is far from over. Granted, a huge majority of states ban same-sex marriage either by statute or constitutional amendment. But there remain a handful of jurisdictions - such as New York - with no law prohibiting it, and a confluence of factors that might lead them to join Massachusetts in permitting gays and lesbians to marry.

For now, all eyes will be on New York City. Mayor Michael Bloomberg has said the city will appeal, and New York law permits the appeal to bypass the intermediate appellate court if the city so chooses because the only issue is the constitutional validity of a state statute. If the Hernandez ruling survives on appeal, New York could become the second state in the union to recognize same-sex marriage.


Joanna Grossman, a FindLaw columnist, is a professor of law at Hofstra University, currently visiting at the University of North Carolina School of Law. Her columns on family law, trusts and estates, and discrimination, including sex discrimination and sexual harassment, may be found in the archive of her columns on this site.

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