Effects of <i>Hernandez</i> Reach Beyond New York

The New York Court of Appeals' July, 2006 ruling in Hernandez v. Robles has had implications beyond its core holding that same-sex couples may not marry in New York ' and beyond New York. Six months after the state's highest court handed down its decision barring such unions, the case has been cited in 11 published decisions ' six of the 11 times by courts in other jurisdictions. Courts from Washington to Nebraska to Massachusetts have cited Hernandez to support their decisions to narrow or restrict the rights of gays to marry.

Beyond New York

Hernandez has been cited by appellate courts in four other jurisdictions in same-sex marriage cases, three times as support of its prohibition and once when the concurring chief judge of the New Jersey Supreme Court cited Chief Judge Judith S. Kaye's impassioned dissent in support of the right of gays to marry. The Supreme Court of Washington, the California Court of Appeals and the U.S. Court of Appeals for the Eighth Circuit all cited Hernandez in decisions disallowing same-sex marriage. In the Washington case, the court reversed two lower court decisions holding the state's Defense of Marriage Act unconstitutional. Responding to a passionate dissent, the court cited Judge Smith's response to Judge Kaye's opinion:

Faced with a similar dissent in Hernandez ' the lead opinion stated, 'The dissenters assert confidently that future generations will agree with their view of this case ' 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,' the court wrote in its unsigned opinion, Andersen v. King County,138 P.3d 963 (July 2006).

In finding that California laws limiting marriage to opposite-sex couples do not deprive same-sex couples of a vested fundamental right, the California Court of Appeals referenced Hernandez 11 times, for a wide range of propositions. For example, the 2-1 majority cited the concurring opinion for support of the conclusion that the historical understanding of marriage as opposite-sex in nature ' must inform our consideration of the relevant case law.

The Eighth Circuit

Furthermore, the Eighth Circuit cited Hernandez's rational-basis test in reversing a district court's finding that Nebraska's broad ban on same-sex unions was unconstitutional. Rational-basis review is highly deferential to the legislature or, in this case, to the electorate that directly adopted [a same-sex marriage ban] by the initiative process, the Eighth Circuit held, upholding Nebraska's prohibition in Citizens for Equal Protection v. Bruning, 455 F.3d 859 (July 2006). Citing similar reasoning by Judge Smith in Hernandez, the court held:

The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a 'responsible procreation' theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.

Massachusetts

A fifth case from outside New York, the Massachusetts Superior Court decision in Witacre v. Department of Public Health, 042656 (Sept. 2006) relied on Hernandez to close the one door that appeared to be open for gay New Yorkers hoping to marry in the United States.

In Witacre, eight non-resident, same-sex couples, who had been denied either marriage certificates or the registration of their marriage certificates, sought a preliminary injunction granting non-resident, same-sex couples the right to marry. In March, the Massachusetts Supreme Court found that out-of-state couples could not marry if such marriage would be void if contracted in such other jurisdiction. The parties agreed to allow the court to withhold judgment regarding how the law applied to New Yorkers pending the outcome of Hernandez. The issue was remanded to the Massachusetts Superior Court. In September, that court ruled that Hernandez's bar on same-sex marriage in New York precludes gay New Yorkers from marrying in Massachusetts as well.

New York Decisions

In New York, courts have found that the decision stands for a number of holdings broader than merely barring same-sex marriage. On the face of it, the court's ruling set forth a narrow holding. Judge Robert S. Smith wrote for the three-judge plurality in Hernandez v. Robles, 7 NY3d 338 (NYLJ, July 7, 2006):

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.

Indeed, attorneys who represented the plaintiffs in Hernandez offer a narrow take on the opinion: 'The case decided only two specific issues, according to co-counsel for the plaintiffs in Hernandez: Does New York's Domestic Relations Law permit same-sex couples to marry? (No) And, is this constitutional? (Yes). Furthermore, they say, because the opinion is just a plurality[,] it carries little heft. It may have visited important issues, such as the level of scrutiny afforded gay couples in New York following Lawrence v. Texas, 539 U.S. 558, but certainly did not resolve them.'

However, New York Law School Professor Arthur Leonard, an expert on gay rights, contended that in fact, the court tackled issues broader than the constitutionality of state Domestic Relations Law. The court decided doctrinal issues of constitutional law regarding due process and equal protection, which have potential ramifications for other cases, according to Prof. Leonard. Hernandez's equal protection ruling ' that the restriction of marriage to opposite-sex couples is subject only to rational basis scrutiny ' carries particular significance, Prof. Leonard added, because gay-rights cases often center on such arguments. Hernandez could be applied to such issues as adoption, benefits and discrimination, he suggested. In fact, in some instances, it already has.

The First Decision

Since last summer, five reported New York decisions have cited Hernandez. Three of those cases found that the decision set forth principles affecting more than whether gays may marry in New York. The first of those cases involved a Nassau County same-sex couple that had married elsewhere.

The ruling in Funderburke v. New York State Department of Civil Service, 13 Misc.3d 284, may be an early bellwether of the courts' treatment of couples who marry in Massachusetts, the only state to allow gay marriage, or New Jersey, where in October 2006, that state's highest court gave the legislature 180 days to provide gay couples with the rights and benefits of marriage. On Dec. 7, the New Jersey Assembly Judiciary Committee recommended passage of legislation that would allow same-sex couples to enter into civil unions but explicitly avoids mention of the word 'marriage.'

The plaintiff in Funderburke, retired elementary school teacher Duke Funderburke, had lived with his partner, Bradley Davis, since 1963. In October 2004, they married in Canada. When they returned to the United States, Funderburke requested that his former employer, the Uniondale Union Free School District, provide his partner with medical and dental insurance coverage, as it would be required to do if Funderburke had married a woman. The school district, which had already won a similar lawsuit Funderburke filed when he and Davis were domestic partners, re-fused, and Funderburke again filed suit. On July 11, 2006, five days after the Court of Appeals ruling, the Nassau County Supreme Court (trial court) dismissed Funderburke's case, citing Hernandez (NYLJ, July 13):

While the Court of Appeals in that case did not directly address the issue of whether New York should recognize same-sex marriages performed in foreign jurisdictions, the Court's ruling is instructive on the definition of marriage. The Court of Appeals held that there are rational grounds for limiting the definition of marriage to opposite-sex couples and that any expansion of the traditional definition of marriage should come from the New York State Legislature.

Funderburke's attorneys, the same as those who represented Hernandez, called the decision very disappointing and a real misreading of what Hernandez is about. Here, they said, the issue should have centered on choice of law: Namely, if a gay couple married in a different jurisdiction, is that marriage respected in New York? A whole different set of presumptions, such as the presumption favoring upholding valid marriages, should have applied. At press time, Funderburke's appeal was pending before the Appellate Division, Second Department.

Wrongful Death Claims

In August, a second Nassau County case applied Hernandez in upholding an established New York precedent that precludes same-sex partners from filing wrongful death claims.

Seagert v. Simonelli, 12419/04, involved the accidental death of 56-year-old Victoria Sarafino, who was struck by a car as she crossed a street in Franklin Square in March 2003. Ms. Sarafino's partner of 17 years and the executrix of her estate, Linda Saegert ' with whom Ms. Sarafino owned a home and raised two children ' subsequently initiated a wrongful death action on behalf of herself and Ms. Sarafino's statutory distributees against the car's driver, Gerard Simonelli.

The Nassau County Supreme Court dismissed Ms. Saegert's claim, citing Hernandez. The judge found that the Court of Appeals' decision buttressed a 2005 First Department finding that same-sex partners cannot initiate wrongful death actions (NYLJ, Aug. 11, 2006). The judge held that the court was bound by Langan v. St. Vincent's Hosp., 2d AD3d 90], especially in view of the more recent decision of the Court of Appeals upholding the current New York State ban on same-sex marriage. The judge wrote:

Langan's holding is based on making a legal distinction between same-sex partners and heterosexual spouses, and Hernandez makes it clear that until the Legislature changes matters such a distinction may be made.

Sex Offenders

The decision citing Hernandez that is furthest afield from its central holding is People v. Cintron, 7862/87 (NYLJ, Aug. 7, 2006). In Cintron, five ex-prisoners who were required to register as sex-offenders, even though they had been charged with only abducting or imprisoning children (but not sexually abusing them), sought to be released from their obligations under the Sex Offender Registration Act. The Bronx County Supreme Court denied their applications, citing the Court of Appeals' decision three weeks earlier barring same-sex marriage.

The Court of Appeals recently rejected the argument that the right to marry a person of the same sex is a fundamental right requiring strict scrutiny of any legislation affecting that right. If the right to enter into a same-sex marriage is not considered fundamental, the right to avoid stigmatization as a sex offender where defendant has not engaged in any express sexual conduct most certainly cannot rise to this status.

Distinguishing 'Hernandez'

One reported New York decision ' a Brooklyn Supreme Court ruling that allowed a woman's claim for a constructive trust over property acquired during her relationship with her ex-domestic partner to go forward ' has ruled that Hernandez's legal effect may in fact be limited to its central holding. In Cannisi v. Walsh, 6435/05 (NYLJ, Nov. 22, 2006), defendant Maureen Walsh sought discovery of records of the retirement assets of Joann Cannisi, her partner of more than 18 years, with whom she had bought a house and had two children. Ms. Canissi argued that the court should partition their property without regard to their domestic relationship. Notwithstanding Hernandez, the court disagreed.

As New York Law School's Mr. Leonard notes, despite Hernandez's bar on same-sex marriage, Cannisi stands for the proposition that these relationships exist, [that] the courts can't pretend that these are just strangers who by chance happen to live together. The fifth New York case, Shields v. Madigan, 32 A.D.3d 1036 (Sept. 2006), was exactly on point: The Appellate Division, Second Department, cited Hernandez in upholding the denial of a petition to order the Orangetown town clerk to issue marriage licenses to same-sex couples.

The New York Court of Appeals' July, 2006 ruling in Hernandez v. Robles has had implications beyond its core holding that same-sex couples may not marry in New York ' and beyond New York. Six months after the state's highest court handed down its decision barring such unions, the case has been cited in 11 published decisions ' six of the 11 times by courts in other jurisdictions. Courts from Washington to Nebraska to Massachusetts have cited Hernandez to support their decisions to narrow or restrict the rights of gays to marry.

Beyond New York

Hernandez has been cited by appellate courts in four other jurisdictions in same-sex marriage cases, three times as support of its prohibition and once when the concurring chief judge of the New Jersey Supreme Court cited Chief Judge Judith S. Kaye's impassioned dissent in support of the right of gays to marry. The Supreme Court of Washington, the California Court of Appeals and the U.S. Court of Appeals for the Eighth Circuit all cited Hernandez in decisions disallowing same-sex marriage. In the Washington case, the court reversed two lower court decisions holding the state's Defense of Marriage Act unconstitutional. Responding to a passionate dissent, the court cited Judge Smith's response to Judge Kaye's opinion:

Faced with a similar dissent in Hernandez ' the lead opinion stated, 'The dissenters assert confidently that future generations will agree with their view of this case ' 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,' the court wrote in its unsigned opinion, Andersen v. King County,138 P.3d 963 (July 2006).

In finding that California laws limiting marriage to opposite-sex couples do not deprive same-sex couples of a vested fundamental right, the California Court of Appeals referenced Hernandez 11 times, for a wide range of propositions. For example, the 2-1 majority cited the concurring opinion for support of the conclusion that the historical understanding of marriage as opposite-sex in nature ' must inform our consideration of the relevant case law.

The Eighth Circuit

Furthermore, the Eighth Circuit cited Hernandez's rational-basis test in reversing a district court's finding that Nebraska's broad ban on same-sex unions was unconstitutional. Rational-basis review is highly deferential to the legislature or, in this case, to the electorate that directly adopted [a same-sex marriage ban] by the initiative process, the Eighth Circuit held, upholding Nebraska's prohibition in Citizens for Equal Protection v. Bruning , 455 F.3d 859 (July 2006). Citing similar reasoning by Judge Smith in Hernandez, the court held:

The argument is based in part on the traditional notion that two committed heterosexuals are the optimal partnership for raising children, which modern-day homosexual parents understandably decry. But it is also based on a 'responsible procreation' theory that justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.

Massachusetts

A fifth case from outside New York, the Massachusetts Superior Court decision in Witacre v. Department of Public Health, 042656 (Sept. 2006) relied on Hernandez to close the one door that appeared to be open for gay New Yorkers hoping to marry in the United States.

In Witacre, eight non-resident, same-sex couples, who had been denied either marriage certificates or the registration of their marriage certificates, sought a preliminary injunction granting non-resident, same-sex couples the right to marry. In March, the Massachusetts Supreme Court found that out-of-state couples could not marry if such marriage would be void if contracted in such other jurisdiction. The parties agreed to allow the court to withhold judgment regarding how the law applied to New Yorkers pending the outcome of Hernandez. The issue was remanded to the Massachusetts Superior Court. In September, that court ruled that Hernandez's bar on same-sex marriage in New York precludes gay New Yorkers from marrying in Massachusetts as well.

New York Decisions

In New York, courts have found that the decision stands for a number of holdings broader than merely barring same-sex marriage. On the face of it, the court's ruling set forth a narrow holding. Judge Robert S. Smith wrote for the three-judge plurality in Hernandez v. Robles , 7 NY3d 338 (NYLJ, July 7, 2006):

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.

Indeed, attorneys who represented the plaintiffs in Hernandez offer a narrow take on the opinion: 'The case decided only two specific issues, according to co-counsel for the plaintiffs in Hernandez: Does New York's Domestic Relations Law permit same-sex couples to marry? (No) And, is this constitutional? (Yes). Furthermore, they say, because the opinion is just a plurality[,] it carries little heft. It may have visited important issues, such as the level of scrutiny afforded gay couples in New York following Lawrence v. Texas , 539 U.S. 558, but certainly did not resolve them.'

However, New York Law School Professor Arthur Leonard, an expert on gay rights, contended that in fact, the court tackled issues broader than the constitutionality of state Domestic Relations Law. The court decided doctrinal issues of constitutional law regarding due process and equal protection, which have potential ramifications for other cases, according to Prof. Leonard. Hernandez's equal protection ruling ' that the restriction of marriage to opposite-sex couples is subject only to rational basis scrutiny ' carries particular significance, Prof. Leonard added, because gay-rights cases often center on such arguments. Hernandez could be applied to such issues as adoption, benefits and discrimination, he suggested. In fact, in some instances, it already has.

The First Decision

Since last summer, five reported New York decisions have cited Hernandez. Three of those cases found that the decision set forth principles affecting more than whether gays may marry in New York. The first of those cases involved a Nassau County same-sex couple that had married elsewhere.

The ruling in Funderburke v. New York State Department of Civil Service , 13 Misc.3d 284, may be an early bellwether of the courts' treatment of couples who marry in Massachusetts, the only state to allow gay marriage, or New Jersey, where in October 2006, that state's highest court gave the legislature 180 days to provide gay couples with the rights and benefits of marriage. On Dec. 7, the New Jersey Assembly Judiciary Committee recommended passage of legislation that would allow same-sex couples to enter into civil unions but explicitly avoids mention of the word 'marriage.'

The plaintiff in Funderburke, retired elementary school teacher Duke Funderburke, had lived with his partner, Bradley Davis, since 1963. In October 2004, they married in Canada. When they returned to the United States, Funderburke requested that his former employer, the Uniondale Union Free School District, provide his partner with medical and dental insurance coverage, as it would be required to do if Funderburke had married a woman. The school district, which had already won a similar lawsuit Funderburke filed when he and Davis were domestic partners, re-fused, and Funderburke again filed suit. On July 11, 2006, five days after the Court of Appeals ruling, the Nassau County Supreme Court (trial court) dismissed Funderburke's case, citing Hernandez (NYLJ, July 13):

While the Court of Appeals in that case did not directly address the issue of whether New York should recognize same-sex marriages performed in foreign jurisdictions, the Court's ruling is instructive on the definition of marriage. The Court of Appeals held that there are rational grounds for limiting the definition of marriage to opposite-sex couples and that any expansion of the traditional definition of marriage should come from the New York State Legislature.

Funderburke's attorneys, the same as those who represented Hernandez, called the decision very disappointing and a real misreading of what Hernandez is about. Here, they said, the issue should have centered on choice of law: Namely, if a gay couple married in a different jurisdiction, is that marriage respected in New York? A whole different set of presumptions, such as the presumption favoring upholding valid marriages, should have applied. At press time, Funderburke's appeal was pending before the Appellate Division, Second Department.

Wrongful Death Claims

In August, a second Nassau County case applied Hernandez in upholding an established New York precedent that precludes same-sex partners from filing wrongful death claims.

Seagert v. Simonelli, 12419/04, involved the accidental death of 56-year-old Victoria Sarafino, who was struck by a car as she crossed a street in Franklin Square in March 2003. Ms. Sarafino's partner of 17 years and the executrix of her estate, Linda Saegert ' with whom Ms. Sarafino owned a home and raised two children ' subsequently initiated a wrongful death action on behalf of herself and Ms. Sarafino's statutory distributees against the car's driver, Gerard Simonelli.

The Nassau County Supreme Court dismissed Ms. Saegert's claim, citing Hernandez. The judge found that the Court of Appeals' decision buttressed a 2005 First Department finding that same-sex partners cannot initiate wrongful death actions (NYLJ, Aug. 11, 2006). The judge held that the court was bound by Langan v. St. Vincent's Hosp ., 2d AD3d 90], especially in view of the more recent decision of the Court of Appeals upholding the current New York State ban on same-sex marriage. The judge wrote:

Langan's holding is based on making a legal distinction between same-sex partners and heterosexual spouses, and Hernandez makes it clear that until the Legislature changes matters such a distinction may be made.

Sex Offenders

The decision citing Hernandez that is furthest afield from its central holding is People v. Cintron, 7862/87 (NYLJ, Aug. 7, 2006). In Cintron, five ex-prisoners who were required to register as sex-offenders, even though they had been charged with only abducting or imprisoning children (but not sexually abusing them), sought to be released from their obligations under the Sex Offender Registration Act. The Bronx County Supreme Court denied their applications, citing the Court of Appeals' decision three weeks earlier barring same-sex marriage.

The Court of Appeals recently rejected the argument that the right to marry a person of the same sex is a fundamental right requiring strict scrutiny of any legislation affecting that right. If the right to enter into a same-sex marriage is not considered fundamental, the right to avoid stigmatization as a sex offender where defendant has not engaged in any express sexual conduct most certainly cannot rise to this status.

Distinguishing 'Hernandez'

One reported New York decision ' a Brooklyn Supreme Court ruling that allowed a woman's claim for a constructive trust over property acquired during her relationship with her ex-domestic partner to go forward ' has ruled that Hernandez's legal effect may in fact be limited to its central holding. In Cannisi v. Walsh, 6435/05 (NYLJ, Nov. 22, 2006), defendant Maureen Walsh sought discovery of records of the retirement assets of Joann Cannisi, her partner of more than 18 years, with whom she had bought a house and had two children. Ms. Canissi argued that the court should partition their property without regard to their domestic relationship. Notwithstanding Hernandez, the court disagreed.

As New York Law School's Mr. Leonard notes, despite Hernandez's bar on same-sex marriage, Cannisi stands for the proposition that these relationships exist, [that] the courts can't pretend that these are just strangers who by chance happen to live together. The fifth New York case, Shields v. Madigan , 32 A.D.3d 1036 (Sept. 2006), was exactly on point: The Appellate Division, Second Department, cited Hernandez in upholding the denial of a petition to order the Orangetown town clerk to issue marriage licenses to same-sex couples.