The Difference Between Recognizing a Same-Sex Marriage and Authorizing One: Why a New York Appellate Court Got it Wrong
By JOANNA GROSSMAN
Thursday, Oct. 20, 2005
In a long-awaited decision, an appellate court in New York has refused, by a vote of 3-2, to permit a man to pursue a wrongful death action to recover damages for the loss of his same-sex partner - a death that he says was caused by medical malpractice by New York City's St. Vincent's Hospital.
More than two and a half years ago, a trial court allowed this tort suit to go forward. The appellate court's decision to dismiss the suit is both surprising and unjustified - and virtually certain to garner review by New York's highest court.
The Allegedly "Wrongful" Death Giving Rise to This Case
The plaintiff, John Langan, and his partner, Neil Conrad Spicehandler, were in a committed relationship for more than a decade. During that time, they had formally acknowledged their commitment to one another in many ways: by executing reciprocal wills, purchasing reciprocal life insurance policies, and granting one another the power to make medical decisions.
They also entered into a civil union in the state of Vermont - a status that the Vermont legislature created in 1999 as an alternative to marriage. Under Vermont law, a civil union partner is treated as a "spouse" in all respects.
Thirteen years into their relationship, tragedy struck. Spicehandler was the victim first of a hit-and-run accident in Manhattan. Then, Langan alleges, Spicehandler was also the victim of medical malpractice at St. Vincent's: He came in with a broken leg and later died from an embolism.
Can Langan Sue?
Langan filed suit to recover from the hospital for Spicehandler's death. But in New York, as in many other states, only a legal heir (a "distributee," under the applicable state statute) can sue for wrongful death. Under New York law, a lawful spouse is first in line to inherit from a decedent, but what about a civil union partner?
Had the accident occurred in Vermont, Langan would certainly have been permitted to bring this suit in a Vermont court. But the men were longtime residents of New York and the accident occurred there, so Vermont law is not relevant.
The question, instead, is whether, under New York law, the suit is viable. Not surprisingly, New York's wrongful death statute does not expressly address the status of a civil union partner. It is, after all, a status created by another state. And although Connecticut now also permits couples to enter into civil unions, the status is not a universal one.
The Appellate Court's Approach: Ignore the Civil Union
This case raises two basic questions. First, does New York's wrongful death statute authorize Langan, the surviving partner to a civil union, to recover for the loss of his partner? And if not, is the wrongful death statute unconstitutional under principles of equal protection?
All five justices in this case answered "no" to the first question. Although the majority agreed that the relationship between the two men was "close, loving, committed," "monogamous," and "indistinguishable from any traditional marital relationship," it nonetheless refused to treat it as a marriage.
The opinion reads the wrongful death statute narrowly - based on a recognized principle of statutory construction that says if a cause of action was created by a legislature in derogation of the common law, it should be strictly construed.
The common law did not recognize the tort of wrongful death at all. Thus, the majority construed the statute narrowly, to give it only the scope the legislature clearly intended. And since the statute permits only "distributees" to sue, and "distributees" are explicitly defined by statute, the majority refused to extend the right to a class of persons - civil union partners - not expressly mentioned.
A majority of the justices also rejected Langan's second claim: that the statute - as construed - unconstitutionally discriminated against same-sex couples. Under both the New York and federal constitutions, statutes cannot impose a disadvantage on a group unless the classification used bears at least a rational relationship to a legitimate state interest.
What government interest, in particular, was rationally related to the decision to exclude same-sex partners in a valid out-of-state civil union from the right to recover for a partner's wrongful death? Certainly, Langan and Spicehandler could not be faulted for failing to formalize their relationship; they had done so to the full extent the law allowed, even going out-of-state to gain the protections of a civil union.
The court's answer on the "rational relationship" issue was highly unpersuasive, to say the least. It cited some loosely related precedents for the proposition that states can constitutionally confine marriage and "all laws pertaining either directly or indirectly to the marital relationship" to opposite-sex couples without running afoul of equal protection principles. But it could not persuasively defend the reasoning of these decisions.
Accordingly, two justices dissented on the constitutional point. They pointed out that the purpose of the wrongful death law is to "make a culpable tortfeasor liable for fair and just compensation to those who, by reason of their relationship to the decedent, suffer economic injury as a result of the decedent's death." In light of this purpose, they reasoned, the legislature has no rational reason to exclude couples in a formal, state-sanctioned relationship from these protections simply because they are of the same sex.
With respect to the particular objectives of the wrongful death statute, the dissenters concluded, "spouses and parties to a Vermont civil union stand in precisely the same position." Because both marriage and civil unions impose obligations of mutual support, the death of one party results in the loss of future economic support for the other.
The Elephant in the Room: Same-Sex Marriage
The majority opinion in Langan is choppy and hard to follow, and its brevity (it's a mere three-and-a-half pages long) is surprising given the complexity of the issues presented. But the final paragraph of the opinion illuminates the driving force behind the majority's opinion: to avoid issuing any ruling on the validity of a ban on same-sex marriage. The opinion concludes by declaring the legislature solely responsible for determining the "issues of the solemnization and creation of [same-sex] relationships, the dissolution of such relationships and the consequences attendant thereto, and all other rights and liabilities that flow from such a relationship."
The court went on to claim that "[a]ny contrary decision, no matter how circumscribed, will be taken as judicial imprimatur of same-sex marriages and would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature." (Emphases added).
But this logic is faulty - for two reasons. First, it wrongly conflates two distinct questions: whether a state will authorize a particular marriage to be celebrated within its borders, and whether a state will recognize a marriage celebrated elsewhere, even though it would not have authorized it within the state.
Second, it wrongly assumes that if a court recognizes a marriage for any purpose, it must recognize it for all purposes.
This isn't a question about authority as between the New York legislature and the New York courts. This is a question about comity and respect as between New York and Vermont, the source of Langan and Spicehandler's civil union.
The Relevant Law Here Concerns Interstate Marriage Recognition
Although recent decades have been a period of relative calm, states historically had sharp and longstanding disagreements about who should be permitted to marry and under what circumstances. At various points in history, states disagreed, among other things, about the permissibility of marriage by minors, interracial marriage, marriage by those carrying a communicable disease, marriage between more distant relatives or between individuals related by marriage, and common-law marriage.
Though the full history of these disagreements is too complicated to describe here, courts developed a few general principles to guide them through the morass of conflicts that arose because of the differing state marriage laws. These principles, by and large, were not dictated by constitutional principles or mandates, but by the common law principle of comity - respect for the actions of other states. And these principles are the ones the New York court ought to have applied here.
A Core Principle: States Respect Other States' Valid Marriages
First, states acknowledged that, in some cases, they might give effect to a marriage that their own laws would prohibit, and would invalidate if it had been performed in their own state. Most followed the "place of celebration" rule, which means that a marriage that is valid where celebrated is valid everywhere.
Significantly, New York, in particular, has historically been extremely generous in recognizing out-of-state marriages. That fact puts a particularly invidious cast on the New York court's decision not to recognize a Vermont civil union: Why does the rare exemption to New York's practices happen to target same-sex couples? "Morality" is an exceptionally poor answer when New York has routinely, over time, recognized marriages that it would not itself have authorized. "Discrimination," then, seems a more accurate label.
By comparison, many states today recognize common-law marriages validly formed elsewhere even though they have a statute rejecting such marriages at home - presumably for "morality" reasons that counsel against giving the state's blessing to couples who bypass the state's solemnization and license requirements.
To take another example, many states historically gave effect to interracial marriages that their own laws prohibited on (reprehensible) "morality" grounds, as long as the couple had a bona fide domicile in the state of celebration.
Granted, states always reserved a "public policy" exception to the general rule of recognition, but since all states banned the marriages that were considered truly offensive - polygamous or incestuous - there was little occasion for such a policy to be invoked.
It was understood that a state could continue to prohibit a particular kind of marriage, despite sometimes recognizing one formed out of state. Interestingly, states that generously afforded recognition to out-of-state marriages were no quicker to eliminate particular marriage impediments under their own laws than those that were stingier about granting such recognition.
Thus, contrary to the New York court's suggestion, there is no real connection between the decision to recognize a prohibited marriage from out of state, and the decision to authorize celebration of the same type of marriage within the state. Moreover, the direct question of whether New York law can constitutionally ban same-sex marriages in New York is currently being considered in a separate case.
Precedent Advocates an Incidental (Purpose-by-Purpose) Approach to Marriage Recognition
Second, there is longstanding precedent - reinforced today by modern conflict-of-laws theories - for an "incidental" approach to marriage recognition. Under this approach, courts can recognize a marriage for one purpose, if the particular concerns or policies implicated militate in favor of recognition. It is understood, with such an approach, that a court might analyze the same relationship differently in a different context.
Claims involving inheritance, for example, were highly susceptible to "incidental" analysis because a court could recognize the economic harm to a surviving spouse who had been in a prohibited marriage, without putting its imprimatur on a continuing, disfavored relationship. Marriage is, among other things, the economic entanglement and interdependence of two lives.
A wrongful death claim is obviously similar - it recognizes and tries to compensate for economic harm caused by a tort. Doing so does not require approval of the marriage that led to the economic entanglement and interdependence, but only recompense for the ongoing economic harm caused by wrongdoing.
The incidental approach has many virtues, but among them is the ability to protect the interests and expectations of parties to a union, without compromising the ability of a state to express disapproval of similar unions.
Together, these general principles allow our federal system to work - preserving states' near-total control over domestic relations, yet reconciling conflicts when various states do not always see eye-to-eye on how domestic relations law should be drafted.
The Only Possibly Legitimate Argument: A Civil Union Is Not a "Marriage"
Does all this mean that the court was wrong to deny recognition to a Vermont civil union? Not necessarily. Although the court went down the wrong logical path, it might have reached the same result, even had it followed the right chain of reasoning.
After all, Vermont expressly created a status that was not called "marriage," and an argument can be made that only "marriages" are entitled to the out-of-state respect comity counsels.
A number of states have in recent years created civil statuses that devolve some, but not all, of the rights and responsibilities of marriage upon their participants. How sister states should treat these varying commitments when their own laws do not create them is not always clear.
Importantly, denying any distinction between civil unions and marriages has a serious downside for same-sex marriage advocates: It would arguably allow states to claim that a civil union is tantamount to marriage, and continue to grant the name of "marriage" to opposite-sex couples alone.
Yet denying the term "marriage" to same-sex couples seems blatantly discriminatory. Imagine, by contrast, if gay couples' adopted children were called not their "children," but their "adoptees" - or if gay parents were called "guardians" and denied the term "parents"! Or imagine if these discriminatory indignities were perpetrated on all adoptive parents, straight or gay.
Sometimes, a marriage by another name doesn't smell quite as sweet. But as with marriage recognition generally, the equivalence (or lack thereof) between marriage and civil unions could be addressed "incidentally." So civil unions could be recognized as tantamount to marriage for purposes of the wrongful death statute - due to the fact that both statuses create economic entanglement - but not for purposes of in-state equal protection analysis.
New York's Highest Court Ought to Take This Case, and Rule in Langan's Favor
The New York Court of Appeals -the state's highest court -- should take this case and give it the kind of thoughtful analysis it deserves. That means properly applying the rules of interstate marriage recognition, and confronting head on whether, for the purposes of the wrongful death statute, a civil union ought to be treated the same as a marriage - given that the rights and responsibilities are in fact identical.
If the court does treat civil unions like marriage for this purpose, as I believe it should, it would go on to apply a place-of-celebration analysis, and to find the Langan/Spicehandler "marriage" valid in Vermont, and thus recognize it in New York for purposes of the wrongful death statute.
The trial court in this case took this exact approach and concluded that New York did not have a sufficient public policy to override the presumption of recognition granted to out-of-state marriages.
Let's hope that John Langan will not, at the end of the day, be deprived of the chance to pursue a suit against a hospital he claims committed fatal malpractice against his life partner.
Everyone agrees that their reciprocal commitment was real, and thus that his economic harm is real. And everyone agrees that the wrongful death statute's purpose is to compensate for just such harm. The only question is whether tortfeasors will get a free pass as to one kind of liability when the patient happens to be gay.