New York Marriage Challenge Moves to Highest Court

Same-sex couples have no constitutional right to marry, New York's Appellate Division, 1st Department, ruled on Dec. 8, in the first decision by a state appeals court to address the issue. Rejecting a constitutional challenge, Justice Milton L. Williams wrote for a 4-1 majority that the state's limitation of marriage to a “union between one man and one woman” is based upon “innate, complementary, procreative roles, a function of biology, not mere legal rights.” Joining in the majority decision were Justice James M. Catterson, George D. Marlow, and John W. Sweeny Jr.

In dissent, Justice David B. Saxe argued that the concept of marriage has sufficiently evolved in recent years to encompass the right to select a spouse of one's choice, including a same-sex partner. To refuse to extend the rights attendant upon marriage to same-sex couples, Saxe wrote, is to “perpetuate a deeply ingrained form of legalized discrimination.”

The ruling in Hernandez v. Robles, 103434/04, overturned a decision issued by Manhattan Supreme Court Justice Doris Ling-Cohan finding that a 1909 state law limiting marriage to heterosexuals violated the state due process and equal protection rights of gays and lesbians. Ling-Cohan ordered the New York City clerk to begin issuing marriage licenses to same-sex couples, but the order was stayed by the 1st Department before it went into effect. Ling-Cohan's ruling only applied in New York City.

Lambda Legal Defense and Education Fund, which brought the challenge on behalf of five same-sex couples, will appeal to the state's highest court, the Court of Appeals. “While we believe the trial court got it right, we anticipated that this case would be heard before the state's high court,” said Susan Sommer, senior counsel at Lambda Legal and lead attorney on the case. “This is a question of basic constitutional rights for same-sex couples and their families, and history shows that fairness under the law will eventually prevail.” As an indicator of the interest generated by the 1st Department case, 50 groups filed 12 amicus curiae briefs with the court.

Manhattan Court Justice 'Usurped' Legislature's Role

In reversing, Williams had sharp words for Ling-Cohan, finding that she had strayed beyond defining legal rights into the legislative realm of setting public policy. Ling-Cohan's ruling, Williams wrote, “usurped the Legislature's mandated role to make policy decisions as to which type of family unit works best for society and therefore should be encouraged with benefits and other preferences.”

Williams wrote that the court found it even more troubling that Ling-Cohan had directed the city clerk to issue licenses, noting that she should have given the Legislature an opportunity to cure the constitutional defect. As a point of comparison, Williams wrote that the Supreme Judicial Court of Massachusetts referred the issue to the Legislature after finding that state's marriage law defective.

In upholding the heterosexual limitation, Williams found that the state has “a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing.” Among other things, he wrote, heterosexual marriage has been established as the “cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital child bearing to sustain the population and society.”

In a reference to gay groups' press for full recognition under the na-tion's marriage laws, Williams wrote, “marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society.”

Dissenter Sees Basic Right to Marriage

In his dissent, Saxe disagreed, finding that because gays “have long been subjected to purposeful discrimination” and “shut out of the political process,” they are entitled to heightened constitutional protection. The fundamental right to marry includes the right to select the person of one's choice as a spouse without regard to gender, Saxe wrote.

Society's view has evolved to view marriage as “a partnership of equals with equal rights, who have mutually joined to form a new family unit … In the face of such a widely held view, the gender of the two partners to a marriage is no longer critical to its definition,” he wrote. Moreover, he added, technology likewise has developed to undermine the notion that biological children can only be created by sex between a man and a woman. Because of the different techniques that have been developed for conceiving children and bringing them to bear, he wrote, there is “virtually no relationship” between limiting marriages to heterosexuals and the promotion of stable homes for children.

Yet neither Williams nor Catterson, in a concurring opinion, found a basis for extending the fundamental right to marry to gay couples. The U.S. Supreme Court has never stated or even implied, Catterson wrote, “that the right to marry under the Constitution or federal precedent extends to same-sex couples. The concept of a marriage has traditionally been accepted by courts throughout the United States as the union of a man and a woman. Any change in that frequently articulated heterosexual construct,” he continued, “would be a revolution in the law rather than evolution.”

Saxe's counterargument: To argue “that marriage must be limited to heterosexuals because that is what the institution has historically been, merely justified discrimination with the bare explanation it has always been that way.”

Other New York Cases

When Hernandez v. Robles reaches the appeals court, it might be joined by several other cases testing the validity of New York's 1909 law, as litigation is pending in both the 2nd and 3rd Departments of the appellate court. The law itself does not expressly limit marriages to heterosexual couples, but its use of terms like “husband” and “wife” and “bride” and “groom” have led every judge who has reviewed the statute, including Ling-Cohan, to conclude that it does not permit same-sex marriages.

In mid-October, the Appellate Division, 3rd Department heard three cases in succession challenging New York's refusal to recognize same-sex marriages — Samuels v. Department of Health, 98084, Kane v. Marsolais, 98151, and Seymour v. Holcomb, 98204. In each case, the trial court had held for the state, and in each case the same-sex couples — roughly 76 people in all — insisted that the ban cannot withstand state constitutional scrutiny. The plaintiffs argue that New York's refusal to recognize same-sex marriages violates the equal protection, due process and free speech provisions of the state constitution. The free speech argument rests on the theory that marriage is a form of communicating to the outside world a couple's commitment, and that gay couples are denied that method of speech.

In oral arguments before the Appellate Division, 3rd Department, Deputy Solicitor General Peter H. Schiff conceded that the state has no compelling state interest in banning homosexual marriage, but argued that the state's prohibition survives a rational basis test on the strength of its historic commitment to providing a stable environment for children. The state argued that the legislature should determine whether same-sex marriages should be legalized.

In an argument that would be echoed in the Hernandez v. Robles opinion, Schiff said that New York's preference for opposite-sex marriages is based on the rationally pragmatic interest in encouraging childbirth within the confines of marriage. “We are concerned that the opposite-sex marriages will promote a stable environment,” he told the court.

“Well, what does that have to do with it?” challenged Judge Anthony J. Carpinello, a question asked in various forms by several judges. This comment was just one of many that observers in the courtroom said differed significantly from the tone and tenor of the Hernandez oral argument, in which the panel seemed more supportive of the state's arguments.

Schiff attempted to explain that with the possibility of accidental procreation, the state has an interest in promoting marriage so that children will, hopefully, be born in physically and emotionally stable settings. But his argument still appeared to trouble the court, especially since there is no possibility of accidental procreation in a homosexual relationship. “That is a little bit of a stretch, wouldn't you say?” responded Presiding Justice Anthony V. Cardona.

Samuels v. Department of Health

The main case, Samuels, is an appeal of a decision by Albany Supreme Court Justice Joseph C. Teresi, who in December 2004 upheld the state's definition of marriage as a union between a man and a woman. It involves 13 same-sex couples representing broad geographic, ethnic, religious and economic diversity. Among the plaintiffs are an interracial couple; the first openly gay member of the state Assembly, Daniel J. O'Donnell (D-Manhattan); a New York City police officer; a seriously ill woman seeking to ensure that her long-time partner has all the rights and access of a spouse if and when her health takes a turn for the worse; people with children or preparing for the birth of a child; and couples that have been together for as few as 4 years and as many as 40. All the plaintiffs allege injuries in the form of tangible hardships related to the state's denial of marriage rights.

“This is not a case about abstract principle,” plaintiffs' counsel Roberta A. Kaplan, of Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan, told the court. “This is a case about real people … leading real lives and deprived of a benefit by the state of New York.” Immediately, the court focused on the core issue when Cardona asked Kaplan if the right to marry the person of one's choosing is a “fundamental right.” (This is the key point that Lambda tried to make in Hernandez v. Robles.) Kaplan said the right to marry is a fundamental right, worthy of every constitutional protection. “So it is your position that there is a fundamental right to marry someone of the same sex?” asked Justice Thomas E. Mercure. Kaplan said that is precisely her position.

Rational Basis Theory in Samuels, Seymour

In Samuels, Schiff advanced two main arguments to support his rational basis theory: tradition and uniformity. He said that New York has a tradition of defining marriage as a union between a man and a woman and an interest in maintaining unity with virtually every other state. “I don't think I can tell you a compelling interest,” Schiff offered early in his argument. “But I can tell you a rational basis.”

That prompted a surprise reaction from Carpinello. “You concede the state has no compelling interest?” Carpinello pressed. Schiff admitted he was conceding that point.

“Well, assuming the standard is rational basis, what is the rational basis?” demanded Mercure.

Schiff repeated that when there is a possibility of procreation, the state has an interest in channeling relationships toward marriage.

That identical argument prevailed in Seymour v. Holcomb, a Tompkins County case where Justice Robert C. Mulvey held that the exclusion of same-sex couples from marriage is rationally related to the state's interest in procreation and child-rearing. But the 3rd Department judges seemed to struggle with that concept, repeatedly asking Schiff to explain the relationship between same-sex marriage and the state's interest in children, and never seeming satisfied with the answer.

Kane v. Marsolais

Kane v. Marsolais was decided in January 2005, just a few weeks after Samuels, and the court came to a similar conclusion. That case involved two women who have been together for 7 years and have a child, and two men in their 60s who have been together for 27 years. Both sets of couples were married in a Unitarian Church and then sought the requisite marriage license from the Albany city clerk. They were denied licenses and then unsuccessfully challenged those denials in an action before Supreme Court Justice E. Michael Kavanagh.

“These are family units we are talking about,” plaintiffs' counsel Terence L. Kindlon of Kindlon & Shanks in Albany argued. “They are married in their hearts. They were married in their church.” Kindlon said the fact that New York “refuses to recognize the reality of their relationship” is itself irrational and more than enough to overcome any rational basis argument. “This is a law whose time has passed,” Kindlon said.

Same-sex couples have no constitutional right to marry, New York's Appellate Division, 1st Department, ruled on Dec. 8, in the first decision by a state appeals court to address the issue. Rejecting a constitutional challenge, Justice Milton L. Williams wrote for a 4-1 majority that the state's limitation of marriage to a “union between one man and one woman” is based upon “innate, complementary, procreative roles, a function of biology, not mere legal rights.” Joining in the majority decision were Justice James M. Catterson, George D. Marlow, and John W. Sweeny Jr.

In dissent, Justice David B. Saxe argued that the concept of marriage has sufficiently evolved in recent years to encompass the right to select a spouse of one's choice, including a same-sex partner. To refuse to extend the rights attendant upon marriage to same-sex couples, Saxe wrote, is to “perpetuate a deeply ingrained form of legalized discrimination.”

The ruling in Hernandez v. Robles, 103434/04, overturned a decision issued by Manhattan Supreme Court Justice Doris Ling-Cohan finding that a 1909 state law limiting marriage to heterosexuals violated the state due process and equal protection rights of gays and lesbians. Ling-Cohan ordered the New York City clerk to begin issuing marriage licenses to same-sex couples, but the order was stayed by the 1st Department before it went into effect. Ling-Cohan's ruling only applied in New York City.

Lambda Legal Defense and Education Fund, which brought the challenge on behalf of five same-sex couples, will appeal to the state's highest court, the Court of Appeals. “While we believe the trial court got it right, we anticipated that this case would be heard before the state's high court,” said Susan Sommer, senior counsel at Lambda Legal and lead attorney on the case. “This is a question of basic constitutional rights for same-sex couples and their families, and history shows that fairness under the law will eventually prevail.” As an indicator of the interest generated by the 1st Department case, 50 groups filed 12 amicus curiae briefs with the court.

Manhattan Court Justice 'Usurped' Legislature's Role

In reversing, Williams had sharp words for Ling-Cohan, finding that she had strayed beyond defining legal rights into the legislative realm of setting public policy. Ling-Cohan's ruling, Williams wrote, “usurped the Legislature's mandated role to make policy decisions as to which type of family unit works best for society and therefore should be encouraged with benefits and other preferences.”

Williams wrote that the court found it even more troubling that Ling-Cohan had directed the city clerk to issue licenses, noting that she should have given the Legislature an opportunity to cure the constitutional defect. As a point of comparison, Williams wrote that the Supreme Judicial Court of Massachusetts referred the issue to the Legislature after finding that state's marriage law defective.

In upholding the heterosexual limitation, Williams found that the state has “a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing.” Among other things, he wrote, heterosexual marriage has been established as the “cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital child bearing to sustain the population and society.”

In a reference to gay groups' press for full recognition under the na-tion's marriage laws, Williams wrote, “marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society.”

Dissenter Sees Basic Right to Marriage

In his dissent, Saxe disagreed, finding that because gays “have long been subjected to purposeful discrimination” and “shut out of the political process,” they are entitled to heightened constitutional protection. The fundamental right to marry includes the right to select the person of one's choice as a spouse without regard to gender, Saxe wrote.

Society's view has evolved to view marriage as “a partnership of equals with equal rights, who have mutually joined to form a new family unit … In the face of such a widely held view, the gender of the two partners to a marriage is no longer critical to its definition,” he wrote. Moreover, he added, technology likewise has developed to undermine the notion that biological children can only be created by sex between a man and a woman. Because of the different techniques that have been developed for conceiving children and bringing them to bear, he wrote, there is “virtually no relationship” between limiting marriages to heterosexuals and the promotion of stable homes for children.

Yet neither Williams nor Catterson, in a concurring opinion, found a basis for extending the fundamental right to marry to gay couples. The U.S. Supreme Court has never stated or even implied, Catterson wrote, “that the right to marry under the Constitution or federal precedent extends to same-sex couples. The concept of a marriage has traditionally been accepted by courts throughout the United States as the union of a man and a woman. Any change in that frequently articulated heterosexual construct,” he continued, “would be a revolution in the law rather than evolution.”

Saxe's counterargument: To argue “that marriage must be limited to heterosexuals because that is what the institution has historically been, merely justified discrimination with the bare explanation it has always been that way.”

Other New York Cases

When Hernandez v. Robles reaches the appeals court, it might be joined by several other cases testing the validity of New York's 1909 law, as litigation is pending in both the 2nd and 3rd Departments of the appellate court. The law itself does not expressly limit marriages to heterosexual couples, but its use of terms like “husband” and “wife” and “bride” and “groom” have led every judge who has reviewed the statute, including Ling-Cohan, to conclude that it does not permit same-sex marriages.

In mid-October, the Appellate Division, 3rd Department heard three cases in succession challenging New York's refusal to recognize same-sex marriages — Samuels v. Department of Health, 98084, Kane v. Marsolais, 98151, and Seymour v. Holcomb, 98204. In each case, the trial court had held for the state, and in each case the same-sex couples — roughly 76 people in all — insisted that the ban cannot withstand state constitutional scrutiny. The plaintiffs argue that New York's refusal to recognize same-sex marriages violates the equal protection, due process and free speech provisions of the state constitution. The free speech argument rests on the theory that marriage is a form of communicating to the outside world a couple's commitment, and that gay couples are denied that method of speech.

In oral arguments before the Appellate Division, 3rd Department, Deputy Solicitor General Peter H. Schiff conceded that the state has no compelling state interest in banning homosexual marriage, but argued that the state's prohibition survives a rational basis test on the strength of its historic commitment to providing a stable environment for children. The state argued that the legislature should determine whether same-sex marriages should be legalized.

In an argument that would be echoed in the Hernandez v. Robles opinion, Schiff said that New York's preference for opposite-sex marriages is based on the rationally pragmatic interest in encouraging childbirth within the confines of marriage. “We are concerned that the opposite-sex marriages will promote a stable environment,” he told the court.

“Well, what does that have to do with it?” challenged Judge Anthony J. Carpinello, a question asked in various forms by several judges. This comment was just one of many that observers in the courtroom said differed significantly from the tone and tenor of the Hernandez oral argument, in which the panel seemed more supportive of the state's arguments.

Schiff attempted to explain that with the possibility of accidental procreation, the state has an interest in promoting marriage so that children will, hopefully, be born in physically and emotionally stable settings. But his argument still appeared to trouble the court, especially since there is no possibility of accidental procreation in a homosexual relationship. “That is a little bit of a stretch, wouldn't you say?” responded Presiding Justice Anthony V. Cardona.

Samuels v. Department of Health

The main case, Samuels, is an appeal of a decision by Albany Supreme Court Justice Joseph C. Teresi, who in December 2004 upheld the state's definition of marriage as a union between a man and a woman. It involves 13 same-sex couples representing broad geographic, ethnic, religious and economic diversity. Among the plaintiffs are an interracial couple; the first openly gay member of the state Assembly, Daniel J. O'Donnell (D-Manhattan); a New York City police officer; a seriously ill woman seeking to ensure that her long-time partner has all the rights and access of a spouse if and when her health takes a turn for the worse; people with children or preparing for the birth of a child; and couples that have been together for as few as 4 years and as many as 40. All the plaintiffs allege injuries in the form of tangible hardships related to the state's denial of marriage rights.

“This is not a case about abstract principle,” plaintiffs' counsel Roberta A. Kaplan, of Paul, Weiss, Rifkind, Wharton & Garrison in Manhattan, told the court. “This is a case about real people … leading real lives and deprived of a benefit by the state of New York.” Immediately, the court focused on the core issue when Cardona asked Kaplan if the right to marry the person of one's choosing is a “fundamental right.” (This is the key point that Lambda tried to make in Hernandez v. Robles.) Kaplan said the right to marry is a fundamental right, worthy of every constitutional protection. “So it is your position that there is a fundamental right to marry someone of the same sex?” asked Justice Thomas E. Mercure. Kaplan said that is precisely her position.

Rational Basis Theory in Samuels, Seymour

In Samuels, Schiff advanced two main arguments to support his rational basis theory: tradition and uniformity. He said that New York has a tradition of defining marriage as a union between a man and a woman and an interest in maintaining unity with virtually every other state. “I don't think I can tell you a compelling interest,” Schiff offered early in his argument. “But I can tell you a rational basis.”

That prompted a surprise reaction from Carpinello. “You concede the state has no compelling interest?” Carpinello pressed. Schiff admitted he was conceding that point.

“Well, assuming the standard is rational basis, what is the rational basis?” demanded Mercure.

Schiff repeated that when there is a possibility of procreation, the state has an interest in channeling relationships toward marriage.

That identical argument prevailed in Seymour v. Holcomb, a Tompkins County case where Justice Robert C. Mulvey held that the exclusion of same-sex couples from marriage is rationally related to the state's interest in procreation and child-rearing. But the 3rd Department judges seemed to struggle with that concept, repeatedly asking Schiff to explain the relationship between same-sex marriage and the state's interest in children, and never seeming satisfied with the answer.

Kane v. Marsolais

Kane v. Marsolais was decided in January 2005, just a few weeks after Samuels, and the court came to a similar conclusion. That case involved two women who have been together for 7 years and have a child, and two men in their 60s who have been together for 27 years. Both sets of couples were married in a Unitarian Church and then sought the requisite marriage license from the Albany city clerk. They were denied licenses and then unsuccessfully challenged those denials in an action before Supreme Court Justice E. Michael Kavanagh.

“These are family units we are talking about,” plaintiffs' counsel Terence L. Kindlon of Kindlon & Shanks in Albany argued. “They are married in their hearts. They were married in their church.” Kindlon said the fact that New York “refuses to recognize the reality of their relationship” is itself irrational and more than enough to overcome any rational basis argument. “This is a law whose time has passed,” Kindlon said.