(dissenting). Plaintiffs in all three actions are nonprofit charitable organizations operating under religious auspices. They are under contract with New York City to perform certain social services mandated upon the city. The services which they have contracted to perform are paid for in part through charitable contributions and in part by funding from the city. They seek, by separate actions, to declare invalid Executive Order No. 50 issued by the Mayor of the city on April 25, 1980. The purpose, as declared in section 1 of the executive order, is to “ensure compliance with the equal employment opportunity requirements of City, State and Federal law in City contracting”. In one respect, however, it differs markedly from the City and State Human Rights Laws (Administrative Code of City of New York § Bl-1.0 et seq.; Executive Law § 290 et seq.) and the Federal Equal Employment Opportunity Act (42 USC § 2000e et seq.; Presidential Executive Order No. 11246 as amended). It precludes discrimination in employment because of “sexual orientation or affectional preference”, a category not included either in the Human Rights Laws or the Equal Employment Opportunity Act.
*260The background against which the executive order was adopted is of importance. Bills have been introduced in the City Council over a period of 10 or more years to amend the City Human Rights Law to include within the protected categories those whose “sexual preference” was different from what is perceived to be the norm in our society. On each occasion the bill died in committee.
When the contracts between plaintiffs and the city approached expiration, negotiations commenced for new agreements. In each instance the Bureau of Labor Services, the administrative agency vested with the obligation of monitoring Executive Order No. 50, insisted that any new agreement contain a provision barring discrimination against all the categories of persons enumerated in Executive Order No. 50. The plaintiffs in these three actions then sought declaratory judgments decreeing that the executive order was invalid. Each plaintiff sought a temporary injunction restraining enforcement of Executive Order No. 50, summary judgment declaring the executive order invalid and permanent injunctive relief. Special Term granted the motion to the extent of awarding plaintiffs summary judgment, holding that the issuance of the executive order was a legislative act and thus, beyond the power of the executive. I agree. Accordingly, I would affirm.
We may start with the premise that discrimination whatever its cause and regardless of against whom it may be directed is not alone ugly; it is an evil to be eliminated. However, the question of morality is not before us. The question which we are called upon to decide is one of executive power.
Ours is a tripartite form of government. “The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy” (Myers v United States, 272 US 52, 293 [Brandeis, J., dissenting], quoted in Youngstown Co. v Sawyer, 343 US 579, 629 [Douglas, J., concurring]). Determining where the powers of the Legislature and the executive begin and end and where they may overlap in the context of the problem presented, is a task far from simple of solution. “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be devined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for *261Pharaoh” (Youngstown Co. v Sawyer, 343 US 579, 634 [Jackson, J., concurring]). It is a task which, nevertheless, we are required to pursue.
In the endeavor to ascertain the limits of executive power, we are aided by the discussion in the concurring opinion of Mr. Justice Jackson in the once famous but now almost forgotten steel seizure case (Youngstown Co. v Sawyer, 343 US 579, 635-638, supra). In that matter a labor dispute occurred between the steel industry and the union of steel workers. The country was then in the throes of the Korean conflict. President Truman referred the dispute to the Federal Wage Stabilization Board. That body was unable to achieve a settlement. When the union gave notice of a nationwide strike the President, by executive order, without any basis therefor in statutory authority and predicated upon a presidential finding that it was necessary to avoid a national catastrophe, directed the Secretary of Commerce to take possession of the steel mills and to operate them. The industry challenged the seizure and sought a temporary injunction restraining the Secretary from taking possession of the mills. The District Court granted the industry a temporary injunction. In joining in the affirmance by the Supreme Court, Mr. Justice Jackson, in his classical dissertation on executive power, stated (pp 635-638):
“1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.
“2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
*262“3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.”
We think the dismissal of Youngstown Co. (supra) by our brethren in the majority as a “vestigial relic” of the great constitutional controversies of two generations ago somewhat cavalier. Indeed, less than a year ago it was cited by our Court of Appeals to support the proposition that in our tripartite form of government the power of the executive is limited. “Respect for this structure and the system of checks and balances inherent therein requires that none of these branches be allowed to usurp powers residing entirely in another branch” (Subcontractors Trade Assn. v Koch, 62 NY2d 422, 427, supra). Its teaching has been applied both to Mayors (Subcontractors Trade Assn. v Koch 62 NY2d 422, supra; Matter of Fullilove v Beame, 48 NY2d 376; Matter of Broidrick v Lindsay, 39 NY2d 641) and to Governors (Matter of Fullilove v Carey, 48 NY2d 826; Rapp v Carey, 44 NY2d 157). In Subcontractors Trade Assn. v Koch (62 NY2d 422, supra) an executive order issued by the Mayor mandating that 10% of all construction contracts be given to “locally based enterprises” was struck down on the ground that no legislative base existed therefor and, absent such base, the executive order constituted an unconstitutional usurpation of legislative power. The two Fullilove cases dealt with executive orders, one by the Governor and the other by the Mayor requiring affirmative action programs. In the case of the City of New York, the executive order required a contractor to submit a written plan of affirmative action before any contract for city or city-assisted construction work could be awarded. In the case of the State, the executive order required that all State contracts contain a provision for affirmative action and that before such contracts were awarded the contractor was required to submit an affirmative action program. Despite the underpinning of the broad declaration of purpose contained in the Human Rights Laws (Executive Law §§ 290, 291; Administrative Code of City of New York §§ Bl-1.0, Bl-7.0) these executive orders were deemed to be an unconstitutional usurpation of legislative power by the executive. In Rapp v Carey (44 NY2d 157, supra), the Governor promulgated an executive order requiring certain classes of *263employees of the State and of independent agencies such as public authorities over which the Governor had no control, to file detailed financial statements with the Board of Public Disclosure and to abstain from certain types of political and business activity. In holding the executive order invalid, the court noted that an act of the Legislature toward the same end might well be within constitutional limits. However, since the acts sought to be compelled and prohibited were not barred either by the State Constitution or statute, the endeavor to compel and prohibit by executive fiat was improper. In Matter of Broidrick v Lindsay (39 NY2d 641, supra), the matter at issue was the authority of the Deputy Mayor-City Administrator to compel affirmative action by prescribing percentages of minorities required to be employed by contractors engaged in the performance of work for the city. While noting that the Administrative Code prohibited discrimination in employment by those entering into contracts with the city, the court held that the City Administrator was powerless to prescribe a remedial device not embraced by statute.
True it may be that Executive Order No. 50 covers an area not included in any of the cases discussed above. However, it is evident from the struggles waged in the City Council with respect to amendment of the law on the proposed inclusion among the protected categories of those added by Executive Order No. 50, that the matter is one of legislative concern. While the Mayor is given broad powers by New York City Charter chapter 1, those are limited to administration. They do not include the power to legislate.
The constitutional argument raised by the city is concededly troublesome. In most of the cases cited, the issues raised include 1st and 14th Amendment rights. The one case in which the Supreme Court has ruled (Board of Educ. v National Gay Task Force, 470 US__, 53 USLW 4408) resulted in an affirmance, by an equally divided court, of a Tenth Circuit determination. That holding struck down that portion of an Oklahoma statute which authorized dismissal of teachers who advocated or encouraged homosexuality (729 F2d 1270). The Court of Appeals held the statute overly broad on the ground that it penalized speech deserving of constitutional protection. The affirmance by the Supreme Court was by a 4 to 4 vote, Mr. Justice Powell not participating. In light of the nature of the affirmance, it has no value as precedent. Rowland v Mad Riv. Local School Dist. (_ US__, 105 S Ct 1373) posed similar questions. There, the Sixth Circuit held that neither 1st nor 14th Amendment rights were violated (730 F2d 444). The Supreme Court, by a vote of 6 to 2 *264denied certiorari. Indeed, Mr. Justice Brennan, in his dissent in Rowland, was of the opinion that certiorari ought be allowed “[b]ecause determination of the appropriate constitutional analysis to apply in such a case continues to puzzle lower courts and because this Court has never addressed the issues presented” (_ US, at p__, 105 S Ct, at p 1373). Still more recently the Supreme Court again denied certiorari in a matter which has, at least, tangential bearing on the subject before us (Ulane v Eastern Airlines, 742 F2d 1081, cert denied __ US __ [Apr. 15, 1985]). There, a transexual pilot who had undergone a sex change operation was fired by his employer. He sought relief under the Federal Equal Employment Opportunity Act (EEOA). The District Court granted relief. The Seventh Circuit reversed and directed the entry of judgment in favor of the defendant. What makes the case of particular interest in the context of the problem before us is the discussion in the Circuit Court opinion of the endeavor, by members of Congress, to amend the EEOA to prohibit discrimination based upon “affectational or sexual orientation” (supra, p 1085) and the failure of these attempts with the result that both it, and the District Court were of the opinion that the EEOA did not protect homosexuals (p 1084).
Although many cases involving homosexual activity have been called to our attention, some of which are cited in the majority opinion, we know of no definitive, final and conclusive authority which holds that homosexual conduct is within the category of activity protected by the 14th Amendment. In the absence of such authority, we are of the opinion that Executive Order No. 50 cannot be sustained on the basis of constitutional underpinning. It may well be that the Federal Constitution prohibits recourse to the imposition of criminal sanctions for acts of consensual sodomy (People v Onofre, 51 NY2d 476). That merely is a recognition of the right of privacy. It does not extend to the Mayor the power to legislate.
Moreover, in these proceedings no person claims the invasion of a constitutional right. Such rights are not to be determined in the abstract. Only where there is some specific claimed deprivation of such right will the issue have matured sufficiently to warrant determination on constitutional grounds.
The failure of the City Council to act in a matter within its sphere of action has not created a vacuum into which the Mayor may step. The remedy for the Legislature’s failure to act or for faulty action lies, as Mr. Justice Holmes long admonished, at the ballot box. It does not reside with the executive or the courts.
*265Finally, even if ultimately it be held that discrimination bottomed upon “sexual orientation or affectional preference” is invidious and proscribed by the 14th Amendment, we have grave doubt that an executive order is the means whereby such prohibition can be effected. In that connection we note that Subcontractors Trade Assn. v Koch (62 NY2d 422, supra), Matter of Fullilove v Beame (48 NY2d 376, supra), Matter of Fullilove v Carey (48 NY2d 826, supra), and Matter of Broidrick v Lindsay (39 NY2d 641, supra), all dealt with the evil of racial discrimination, an odious practice outlawed by the equal protection clause of the 14th Amendment (Brown v Board of Educ., 347 US 483) and of the 5th Amendment (Bolling v Sharpe, 347 US 497). Nonetheless, the executive was held powerless to proscribe it if, in the process, it usurped a legislative function.
Accordingly, the orders and judgments of the Supreme Court, New York County (Alvin Klein, J.), entered October 5, 1984, and the order and judgment of the Supreme Court, New York County (Alvin Klein, J.), entered October 4, 1984, should be affirmed.
Carro, J. P., and Kassal, J., concur with Asch, J.; Bloom, J., dissents in an opinion.
Three orders and judgments (three papers), Supreme Court, New York County, one of which was entered on October 4,1984, and the other two entered on October 5, 1984, modified, on the law, without costs and without disbursements, the motions for summary judgment denied, and upon search of the record (CPLR 3212 [b]), summary judgment granted to defendants declaring that Mayoral Executive Order No. 50 and regulations promulgated thereunder are constitutional and valid, and otherwise affirmed.