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
FindLaw,
February 8, 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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