Hernandez v. Robles

OPINION OF THE COURT

Williams, J.

Plaintiff same-sex couples seek to enter into civil marriage in New York City. Defendant Victor Robles, the City Clerk of the City of New York, administers the Marriage License Bureau and is responsible for issuing and recording marriage licenses and solemnizing civil marriages in New York City. In March 2004, each of the plaintiff couples applied for a marriage license at defendant’s office. Their applications were denied on the ground that “New York State law does not authorize this office to grant marriage licenses to same-sex couples.”

Plaintiffs brought an action in Supreme Court, New York County seeking declaratory and injunctive relief arguing that the Domestic Relations Law denies them their rights to equal protection and due process as guaranteed by the Constitution of the State of New York. They alleged that aside from the fact that they are same-sex couples, they are otherwise legally qualified to marry under New York State law. Plaintiffs eventually moved, and defendant cross-moved, for summary judgment. The court granted the motion and denied the cross motion, holding that the Domestic Relations Law violated the equal protection and due process provisions of the New York State Constitution, and that the words “husband,” “wife,” “bride,” and “groom” as used in the relevant sections of the Domestic Relations Law should be construed to apply equally to either men or women. The court permanently enjoined defendant from denying a marriage license to any couple solely on the ground that the couple is comprised of persons of the same sex.

The court agreed with the New York State Attorney General and the Corporation Counsel of the City of New York that the Domestic Relations Law does not and was not intended to authorize same-sex marriage. It reasoned, among other things, that the fundamental right to marry, as recognized by federal and New York State due process case law, is both a liberty right and a privacy right and includes the right to choose whom one marries. Thus, the appropriate test of the Domestic Relations Law’s constitutionality in this regard should be strict scrutiny, which requires that the State demonstrate a compelling state interest for the statutory classification and that the legislation be narrowly tailored to meet that interest. The court found that the asserted state interests, fostering traditional heterosexual marriage and avoiding problems raised by other jurisdictions’ failure to grant comity to same-sex marriages, did not meet the test. It stated that the issue as posed by defendant, whether plaintiffs had a fundamental right to same-sex marriage, was a misstatement of the issue according to the United States Supreme Court in Lawrence v Texas (539 US 558 [2003]).

The court also found that the Domestic Relations Law violated the Equal Protection Clause of the State Constitution in that it discriminates against plaintiffs on the basis of sexual orientation and rationally serves no legitimate state purpose. Finally, the court rejected the argument that the issue of whether to permit same-sex marriage is one in which the courts should defer to the Legislature, finding that it was well within its mandate in ruling on the statute’s constitutionality and that the United States Supreme Court rejected the same argument in Loving v Virginia (388 US 1 [1967]), where it struck down an antimiscegenation law.

We find that the motion court erred in granting plaintiffs summary judgment and finding the provisions of the Domestic Relations Law unconstitutional to the extent that they do not permit same-sex marriage. However, we find it even more troubling that the court, upon determining the statute to be unconstitutional, proceeded to rewrite it and purportedly create a new constitutional right, an act that exceeded the court’s constitutional mandate and usurped that of the Legislature.

As we stated in Raum v Restaurant Assoc. (252 AD2d 369, 370 [1998], appeal dismissed 92 NY2d 946 [1998]), “[s]ince it is not within the judicial province to redefine terms given clear meaning in a statute, [a] plaintiff’s sole recourse [in such instance] lies in legislative action” (citation omitted; see also Greenwald v H & P 29th St. Assoc., 241 AD2d 307 [1997]; Matter of Cooper, 187 AD2d 128 [1993], appeal dismissed 82 NY2d 801 [1993]). Here, the relevant provisions of the Domestic Relations Law, despite the absence of an express prohibition against same-sex marriage, clearly do not contemplate such unions (2004 Ops Atty Gen No. I 2004-1, at 1005 [“the inclusion in the DRL of gender-specific terms to describe parties to a marriage, as well as the historical context of its enactment, indicates that the Legislature did not intend to authorize same-sex marriage”]). Generally, in such circumstances, “courts [should not] correct supposed . . . omissions or defects in legislation” (McKinney's Cons Laws of NY, Book 1, Statutes § 73, at 148 [1971]).

The role of the courts is “to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes” (Goodridge v Department of Pub. Health, 440 Mass 309, 356, 798 NE2d 941, 978 [2003] [Spina, J., dissenting]). Deprivation of legislative authority, by judicial fiat, to make important, controversial policy decisions prolongs divisiveness and defers settlement of the issue; it is a miscarriage of the political process involved in considering such a policy change (see Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 NYU L Rev 1185, 1205-1208 [1992] [urging a measured approach in judicial decisionmaking and citing in contrast the Supreme Court’s Roe v Wade decision (410 US 113 [1973]), which prematurely ended the political process for legislative change on the abortion issue and resulted in protracted controversy]).

The power to regulate marriage lies with the Legislature, not the Judiciary. “[T]he Legislature in dealing with the subject of marriage has plenary power” (Fearon v Treanor, 272 NY 268, 271 [1936], appeal dismissed 301 US 667 [1937]). Hence,

“Kit is the Legislature that is the appropriate body to engage in the studied debate that must necessarily precede the formulation of social policy with respect to same-sex marriage and the decision to extend any or all rights and benefits associated with marriage to same-sex couples, and, in turn, the amendment or expansion of the laws presently governing the institution of marriage in New York” (Matter of Shields v Madigan, 5 Misc 3d 901, 908 [2004]).

“Rights are defined by the Legislature, not the Judiciary. Plaintiffs must take their request for an alteration in the definition of marriage to the elected officials responsible for drafting the marriage statutes. Judicial intervention is warranted only where the Legislature has placed an unreasonable restriction on access to the legislatively defined right” (Lewis v Harris, 2003 WL 23191114, *20 [NJ Super Ct, Law Div, Nov. 5, 2003], affd 378 NJ Super 168, 875 A2d 259 [2005]).

The definition of marriage in the Domestic Relations Law expresses an important, long-recognized public policy supporting, among other things, procreation, child welfare and social stability—all legitimate state interests. The motion court’s revision of statutory language impermissibly replaces the legislative intent with that of the court. Other New York courts that have ruled recently on the same-sex marriage issue have upheld the statute (see e.g. Seymour v Holcomb, 7 Misc 3d 530 [2005]; Matter of Shields v Madigan, 5 Misc 3d 901 [2004]).

The Domestic Relations Law provisions regarding marriage do not violate the due process and equal protection provisions of the New York State Constitution (NY Const, art I, §§ 6, 11). Marriage, defined as the union between one man and one woman, is based upon important public policy considerations and has been recognized as a fundamental constitutional right (Zablocki v Redhail, 434 US 374, 383 [1978]; Skinner v Oklahoma ex rel. Williamson, 316 US 535, 541 [1942]; see also Washington v Glucksberg, 521 US 702, 720 [1997]; Griswold v Connecticut, 381 US 479, 486 [1965]). These considerations are based on innate, complementary, procreative roles, a function of biology, not mere legal rights. “[T]he reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth” (Goodridge, 440 Mass at 357 n 1, 798 NE2d at 979 n 1 [Sosman, J., dissenting]).

The legislative policy rationale is that society and government have a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing. It systematically regulates heterosexual behavior, brings order to the resulting procreation and ensures a stable family structure for the rearing, education and socialization of children (Goodridge, 440 Mass at 381, 798 NE2d at 995 [Cordy, J., dissenting]). Marriage promotes sharing of resources between men, women and the children that they procreate; provides a basis for the legal and factual assumption that a man is the father of his wife’s child via the legal presumption of paternity plus the marital expectations of monogamy and fidelity; and creates and develops a relationship between parents and child based on real, everyday ties. It is based on the presumption that the optimal situation for child rearing is having both biological parents present in a committed, socially esteemed relationship (Reno v Flores, 507 US 292, 310 [1993] [marriage allows the state to express a preference for biological parents “whom our society . . . (has) always presumed to be the preferred and primary custodians of their minor children”]). The law assumes that a marriage will produce children and affords benefits based on that assumption. It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depends on a healthy marriage culture for this latter critical, but presently undervalued, benefit. Marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society, and such preference constitutes a rational policy decision. Thus, society and government have reasonable, important interests in encouraging heterosexnal couples to accept the recognition and regulation of marriage.

Plaintiffs’ challenge to the statute on equal protection grounds is without merit. They concede that the Domestic Relations Law marriage provisions do not discriminate on the basis of gender; the Domestic Relations Law treats the members of both genders exactly the same in terms of whom they may marry (Seymour v Holcomb, 7 Misc 3d at 534; Matter of Shields v Madigan, 5 Misc 3d at 906). The statute does create a classification on the basis of sexual orientation, but in a manner permissible under the applicable equal protection analysis, that is, the rational basis test (see Romer v Evans, 517 US 620, 631 [1996]; Matter of Valentine v American Airlines, 17 AD3d 38, 42 [2005]; Cooper, 187 AD2d at 133-134). Sexual orientation is not subject to one of the stricter equal protection analyses (Romer, 517 US at 631-633; Matter of Valentine, 17 AD3d at 42). In rational basis analysis, the statute receives a strong presumption of validity and the burden is on claimant to show otherwise; there is no burden on the state to produce evidence sustaining the rationality of the statute (Heller v Doe, 509 US 312, 319-320 [1993]; Affronti v Crosson, 95 NY2d 713, 719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001). Justice O’Connor, concurring in Lawrence v Texas (539 US at 585), opines that a statute providing for the traditional institution of marriage could withstand rational basis analysis, and recent New York decisions, among others, have so held (see e.g. Seymour v Holcomb, 7 Misc 3d at 535-536; Matter of Shields v Madigan, 5 Misc 3d at 907).

Plaintiffs fail to carry their burden of demonstrating “that the legislative facts on which the [statutory] classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker” (Affronti v Crosson, supra at 719 [citation and internal quotation marks omitted]). They do not dispute the Legislature’s assumptions concerning the advantages of encouraging the rearing of children by both biological parents. Their argument that the statute does not have a rational basis because it allows heterosexual couples unable or unwilling to have children to marry ignores precedent holding that the classification created by a statute need not be perfect (see Massachusetts Bd. of Retirement v Murgia, 427 US 307, 314 [1976]; Matter of Davis, 57 NY2d 382, 388 [1982]). Nor does it lack rational basis because it addresses one legitimate policy interest or problem (regulating heterosexual marriage) over others even if they are related to the same subject. The legislative process involves setting priorities, making difficult decisions, making imperfect decisions and approaching problems incrementally, and rational basis analysis does not require that a legislature take the ideal or best approach (Heller v Doe, 509 US at 321; FCC v Beach Communications, Inc., 508 US 307, 315-316 [1993]). Finally, there is no requirement in rational basis equal protection analysis that the government interest be furthered by both those included in the statutory classification and by those excluded from it (see People v Whidden, 51 NY2d 457, 461 [1980], appeal dismissed for want of a substantial federal question 454 US 803 [1981]).

Plaintiffs’ claimed reliance on the fundamental right to marry is without merit. The United States Supreme Court recognizes traditional, heterosexual marriage as a fundamental right pursuant to both equal protection and substantive due process liberty and privacy doctrines (Washington v Glucksberg, 521 US at 720; Zablocki v Redhail, 434 US at 383; Loving v Virginia, 388 US at 12; Griswold v Connecticut, 381 US at 486; Skinner v Oklahoma ex rel. Williamson, 316 US at 541). New York apparently recognizes a parallel right (see e.g. Levin v Yeshiva Univ., 96 NY2d 484, 500 [2001] [G.B. Smith, J., concurring]; Matter of Doe v Coughlin, 71 NY2d 48, 52-53 [1987], cert denied 488 US 879 [1988]; People v Onofre, 51 NY2d 476, 486 [1980], cert denied 451 US 987 [1981]; Cooper v Morin, 49 NY2d 69, 80 [1979], cert denied sub nom. Lombard v Cooper, 446 US 984 [1980]; Matter of Mary of Oakknoll v Coughlin, 101 AD2d 931, 932 [1984]). Fundamental rights are defined as those “which are, objectively, ‘deeply rooted in this Nation’s history and tradition’ . . . and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed’ ” (Washington, 521 US at 720-721). Courts are admonished to “ ‘exercise the utmost care’ in conferring fundamental-right status on a newly asserted interest lest we transform the liberty protected by due process into judicial policy preferences rather than principles born of public debate and legislative action” (Standhardt v Superior Ct. ex rel. County of Maricopa, 206 Ariz 276, 284, 76 P3d 451, 459 [2003], quoting Washington, 521 US at 720). No appellate court, other than the Goodridge court, has held that a fundamental right exists to same-sex marriage (but see e.g. Dean v District of Columbia, 653 A2d 307, 333 [1995] [same-sex marriage not a fundamental right protected by the Due Process Clause]; Standhardt, 206 Ariz at 284, 76 P3d at 459 [“same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state nor are they implicit in the concept of ordered liberty”]; Lawrence v Texas, 539 US at 585 [O’Connor, J., concurring] [opines that on a same-sex bias challenge traditional marriage statute could withstand rational basis analysis]). Thus, we reject plaintiffs’ argument in support of a fundamental right. Their reliance on Loving v Virginia (388 US 1 [1967]) is misplaced, since that Court held that the intent of the antimiscegenation statute directly conflicted with the fundamental right to be free from racial discrimination based on the Equal Protection Clause, as well as with the fundamental right to traditional marriage based on substantive due process (Loving at 11-12; see also Perez v Sharp, 32 Cal 2d 711, 198 P2d 17 [1948] [California antimiscegenation statute violated the Equal Protection Clause]).

The motion court’s decision, by redefining traditional marriage, 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. It effectively dismantled the legislative construct and treats all intimate and dependent relationships as equal. This is an impermissible intrusion by the Judiciary upon the legislative domain. The question of what statutory recognition, if any, same-sex couples should receive in New York is one that must be referred to the Legislature in accordance with its historical role.

Having ruled as it did, the motion court should have, as the Vermont and Massachusetts courts did in Baker v State (170 Vt 194, 744 A2d 864 [1999]) and Goodridge v Department of Pub. Health (440 Mass 309, 798 NE2d 941 [2003]), respectively, suspended the effect of its decision for a reasonable period of time and retained jurisdiction giving the Legislature the opportunity to consider and enact legislation consistent with the alleged constitutional mandate. “A sudden change in the marriage laws or the statutory benefits traditionally incidental to marriage may have disruptive and unforeseen consequences” (Baker, 170 Vt at 225, 744 A2d at 887). “The implementation by the Vermont Legislature of a constitutional right expounded by this Court pursuant to the Vermont Constitution ... is not an abdication of judicial duty, it is the fulfillment of constitutional responsibility” (Baker, 170 Vt at 228, 744 A2d at 888).

Accordingly, the order and judgment of the Supreme Court, New York County (Doris Ling-Cohan, J.), entered February 7, 2005, which granted plaintiffs’ motion for summary judgment; denied defendant’s cross motion for summary judgment; adjudged and declared that the Domestic Relations Law violates article I, §§ 6 and 11 of the New York State Constitution; adjudged and declared that the words “husband,” “wife,” “groom,” and “bride,” as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to either men or women; and ordered that defendant be permanently enjoined from denying a marriage license to any couple solely on the ground that the two persons in that couple are of the same sex, should be reversed, on the law, without costs, the judgment vacated, plaintiffs’ motion for summary judgment denied, defendant’s cross motion for summary judgment granted and a declaration issued in defendant’s favor that Domestic Relations Law §§ 10, 12 and 15 (1) (a), and the other relevant sections of the Domestic Relations Law at issue, are constitutional and valid.