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					                              HERNANDEZ v. ROBLES                                  N. Y.   1
                              Cite as 855 N.E.2d 1 (N.Y. 2006)

                                               Appeals, 4 N.Y.3d 825, 796 N.Y.S.2d 579,
              7 N.Y.3d 338                     829 N.E.2d 671, transferred case. The Su-
Daniel HERNANDEZ et al., Appellants,           preme Court, Appellate Division, 29
                   v.                          A.D.3d 9, 811 N.Y.S.2d 136, affirmed. In
                                               third case, same-sex couples appealed from
   Victor L. ROBLES, as City Clerk             judgment of the Supreme Court, Albany
       of the City of New York,                County, Kavanagh, J., upholding denial of
              Respondent.                      their requests for a marriage license. The
   Sylvia Samuels et al., Appellants,          Supreme Court, Appellate Division, 26
                                               A.D.3d 661, 808 N.Y.S.2d 566, affirmed. In
                   v.                          fourth case, appeal was taken from sum-
    New York State Department of               mary judgment of the Supreme Court,
     Health et al., Respondents.               Tompkins County, Mulvey, J., entered in
                                               favor of the Department of Health in ac-
     In the Matter of Elissa Kane
                                               tion challenging those portions of the DRL
           et al., Appellants,
                                               limiting marriage to one woman and one
                   v.                          man. The Supreme Court, Appellate Divi-
    John Marsolais, as Albany City             sion, 26 A.D.3d 661, 811 N.Y.S.2d 134,
      Clerk, et al., Respondents.              affirmed. Plaintiffs in all four cases appeal-
   Jason Seymour et al., Appellants,           Holdings: The Court of Appeals, R.S.
                   v.                          Smith, J., held that:
     Julie Holcomb, as City Clerk              (1) Domestic Relations Law provisions
       of the City of Ithaca, et                   limiting marriage to same-sex couples
           al., Respondents.                       was supported by rational basis;
                                               (2) provisions did not violate due process;
     Court of Appeals of New York.
              July 6, 2006.                    (3) provisions did not violate equal protec-
Background: Same-sex couples brought               tion.
action against administrator of New York       Affirmed.
City Marriage License Bureau, challenging
                                               Graffeo, J., filed opinion concurring in the
constitutionality of Domestic Relations
                                               result in which G.B. Smith concurred.
Law (DRL) provisions that did not permit
same-sex marriage. The Supreme Court,          Kaye, C.J., filed dissenting opinion in
New York County, Doris Ling-Cohan, J.,         which Ciparick, J., concurred.
entered summary judgment for same-sex
couples. Administrator appealed. The Su-       1. Marriage O17.5(1)
preme Court, Appellate Division, 26                 Domestic Relations Law provisions
A.D.3d 98, 805 N.Y.S.2d 354, reversed. In      governing marriage did not permit same-
separate case, same sex couple sued state      sex marriage. McKinney’s DRL §§ 5 et
Department of Health, claiming that DRL        seq., 10 et seq.
provisions limiting marriage to opposite
sex couples was unconstitutional. The Su-      2. Constitutional Law O224(2), 274(5)
preme Court, Albany County, Teresi, J.,           Marriage O17.5(1)
granted summary judgment to Depart-                 Domestic Relations Law provisions
ment, and couple appealed. The Court of        limiting marriage to same-sex couples
2   N. Y.          855 NORTH EASTERN REPORTER, 2d SERIES

were supported by rational basis, for pur-       6. Constitutional Law O274(5)
poses of challenges under the equal protec-        Marriage O17.5(1)
tion and due process clauses of the New               Domestic Relations Law provisions
York Constitution; Legislature could ra-         limiting marriage to same-sex couples did
tionally decide that, for the welfare of chil-   not restrict the exercise of a fundamental
dren, it was more important to promote           right, in violation of due process. (Per
stability, and to avoid instability, in oppo-    opinion of R.S. Smith, J., with two judges
site-sex than in same-sex relationships,         concurring, one judge concurring in the
and that it was better, other things being       result, and one judge not taking part.)
equal, for children to grow up with both a       McKinney’s Const. Art. 1, § 6; McKinney’s
mother and a father. (Per opinion of R.S.        DRL §§ 5 et seq., 10 et seq.
Smith, J., with two judges concurring, one
judge concurring in the result, and one          7. Constitutional Law O274(5)
judge not taking part.)          McKinney’s        Marriage O17.5(1)
Const. Art. 1, §§ 6, 11; McKinney’s DRL               Domestic Relations Law provisions
§§ 5 et seq., 10 et seq.                         limiting marriage to same-sex couples
                                                 were rationally related to legitimate gov-
3. Constitutional Law O18                        ernment interests in protecting the welfare
     New York Constitution cannot afford         of children, as required by due process
less protection to citizens than the Federal     clause of the New York Constitution. (Per
Constitution does, but it can give more.         opinion of R.S. Smith, J., with two judges
(Per opinion of R.S. Smith, J., with two         concurring, one judge concurring in the
judges concurring, one judge concurring in       result, and one judge not taking part.)
the result, and one judge not taking part.)      McKinney’s Const. Art. 1, § 6; McKinney’s
                                                 DRL §§ 5 et seq., 10 et seq.
4. Constitutional Law O252.5
                                                 8. Constitutional Law O224(2)
     In deciding the validity of legislation
                                                      Domestic Relations Law’s restriction
under the Due Process Clause, courts first
                                                 of marriage to opposite-sex couples was
inquire whether the legislation restricts
                                                 subject only to rational basis scrutiny in
the exercise of a fundamental right, one
                                                 determining whether the restriction violat-
that is deeply rooted in this Nation’s histo-
                                                 ed equal protection, not intermediate or
ry and tradition. (Per opinion of R.S.
                                                 heightened scrutiny. (Per opinion of R.S.
Smith, J., with two judges concurring, one
                                                 Smith, J., with two judges concurring, one
judge concurring in the result, and one
                                                 judge concurring in the result, and one
judge not taking part.)         McKinney’s
                                                 judge not taking part.)        McKinney’s
Const. Art. 1, § 6.
                                                 Const. Art. 1, § 11; McKinney’s DRL §§ 5
5. Constitutional Law O274(5)                    et seq., 10 et seq.

     Right to marry is unquestionably a          9. Constitutional Law O213.1(2)
fundamental right for due process pur-                Where rational basis scrutiny applies,
poses; right to marry someone of the same        general rule is that legislation challenged
sex, however, is not ‘‘deeply rooted.’’ (Per     on equal protection grounds is presumed
opinion of R.S. Smith, J., with two judges       to be valid and will be sustained if the
concurring, one judge concurring in the          classification drawn by the statute is ra-
result, and one judge not taking part.)          tionally related to a legitimate state inter-
McKinney’s Const. Art. 1, § 6.                   est. (Per opinion of R.S. Smith, J., with
                                HERNANDEZ v. ROBLES                                    N. Y.   3
                                  Cite as 855 N.E.2d 1 (N.Y. 2006)

two judges concurring, one judge concur-              Roger B. Adler, P.C., New York City
ring in the result, and one judge not taking       (Roger Bennet Adler of counsel), for New
part.) McKinney’s Const. Art. 1, § 11.             York State Conservative Party, amicus cu-
                                                   riae in the first above-entitled action.
10. Constitutional Law O224(2)
    Marriage O17.5(1)                                 American Center for Law & Justice
                                                   Northeast, Inc., New Milford, Connecticut
     Domestic Relations Law’s restriction
                                                   (Vincent P. McCarthy and Kristina J.
of marriage to opposite-sex couples was
                                                   Wenberg of counsel), admitted pro hac
not irrationally over-inclusive or under-in-
                                                   vice, for City Action Coalition, amicus curi-
clusive, in violation of the equal protection
                                                   ae in the first above-entitled action.
clause of the New York Constitution. (Per
opinion of R.S. Smith, J., with two judges            Paul, Weiss, Rifkind, Wharton & Garri-
concurring, one judge concurring in the            son LLP, New York City (Roberta A. Kap-
result, and one judge not taking part.)            lan and Andrew J. Ehrlich of counsel),
McKinney’s Const. Art. 1, § 11; McKin-             American Civil Liberties Union Founda-
ney’s DRL §§ 5 et seq., 10 et seq.                 tion (James D. Esseks and Sharon M.
                                                   McGowan of counsel) and New York Civil
11. Constitutional Law O213.1(2)
                                                   Liberties Union Foundation (Donna Lie-
    Rational basis scrutiny under the              berman and Arthur Eisenberg of counsel),
equal protection clause of the New York            for appellants in the second above-entitled
Constitution is highly indulgent towards           action.
the State’s classifications. (Per opinion of
R.S. Smith, J., with two judges concurring,          Brian M. DeLaurentis, P.C., New York
one judge concurring in the result, and one        City (Brian M. DeLaurentis of counsel),
judge not taking part.)          McKinney’s        for Lesbian, Gay, Bisexual and Transgen-
Const. Art. 1, § 11.                               der Law Association of Greater New York,
                                                   Inc., amicus curiae in the first and second
                                                   above-entitled actions.
                                                     Willkie Farr & Gallagher LLP, New
   Lambda Legal Defense and Education              York City (Martin Klotz, Joanna Rotgers
Fund, Inc., New York City (Susan L. Som-           and Jeffrey S. Siegel of counsel), for Wom-
mer, David S. Buckel and Alphonso David            en’s Bar Association of the State of New
of counsel), and Kramer Levin Naftalis &           York and others, amici curiae in the first
Frankel LLP (Jeffrey S. Trachtman, Nor-            and second above-entitled actions.
man C. Simon and Darren Cohen of coun-                Fried, Frank, Harris, Shriver & Jacob-
sel), for appellants in the first above-enti-      son LLP, New York City (Bonnie Stein-
tled action.                                       gart, Jonathan F. Lewis, Jennifer L.
  Michael A. Cardozo, Corporation Coun-            Colyer, Edward J. Jacobs and Tico A.
sel, New York City (Leonard Koerner,               Almeida of counsel), for Academy for
Marilyn Richter and Ronald E. Sternberg            Jewish Religion and others, amici curiae
of counsel), for respondent in the first           in the first and second above-entitled ac-
above-entitled action.                             tions.
  Richard E. Barnes, Albany, and Paul                Ross D. Levi, Albany, and Cravath,
Benjamin Linton, North-brook, Illinois, for        Swaine & Moore LLP, New York City
New York State Catholic Conference, ami-           (Gary A. Bornstein of counsel), for Empire
cus curiae in the first above-entitled action.     State Pride Agenda and others, amici curi-

ae in the first and second above-entitled     thy N. Giobbe, Joshua A. Brook, Jennifer
actions.                                      L. Hogan, Helene B. Madonick, Christo-
   Jay Weiser, New York City, Lia Brooks,     pher S. Rhee and Joshua I. Kaplan of
Robert H. Cohen, Allen Drexel, Bruce          counsel), and Costello Cooney & Fearon,
Wagner, Albany, William D. Frumkin,           PLLC, Syracuse (Samuel C. Young of
New York City, and Mark B. Wheeler,           counsel), for Suzanne B. Goldberg and oth-
Ithaca, for Association of the Bar of the     ers, amici curiae in the first and second
City of New York and others, amici curiae     above-entitled actions.
in the first and second above-entitled ac-
                                                 Genant Law Offices, Mexico (Robert
                                              Genant of counsel), and Liberty Counsel,
  Norman L. Reimer, New York City,            Lynchburg, Virginia (Rena M. Lindevald-
Ivan J. Dominguez, Kathryn Shreeves,          sen of counsel), for Concerned Women for
Jean M. Swieca and H. Alexander Robin-        America and another, amici curiae in the
son, Washington, D.C., for New York           first and second above-entitled actions.
County Lawyers’ Association and another,
amici curiae in the first and second above-      Whiteman, Osterman & Hanna LLP, Al-
entitled actions.                             bany (Michael Whiteman, Heather D. Did-
                                              del and Andrew M. Johnson of counsel),
  Ropes & Gray LLP, New York City
                                              Jenner & Block LLP, Washington, D.C.
(Douglas H. Meal of counsel), and Mary L.
                                              (Paul M. Smith, William M. Hohengarten
Bonauto, Boston, Massachusetts, admitted
                                              and Eric Berger of counsel), and Nathalie
pro hac vice, for Gay & Lesbian Advocates
                                              F.P. Gilfoyle for American Psychological
& Defenders, amicus curiae in the first and
                                              Association and others, amici curiae in the
second above-entitled actions.
                                              first and second above-entitled actions.
   Simpson Thacher & Bartlett LLP, New
York City (Joseph F. Tringali, Robert J.        Alliance Defense Fund, Scottsdale, Ari-
Pfister and Paul A. Saso of counsel), for     zona (Byron J. Babione, Benjamin W. Bull,
Anti–Defamation League and others, amici      Glen Lavy and Christopher R. Stovall of
curiae in the first and second above-enti-    counsel), for Family Research Council,
tled actions.                                 amicus curiae in the first and second
   LeBoeuf, Lamb, Greene & MacRae             above-entitled actions.
LLP, New York City (Vivian L. Polak,            Kindlon and Shanks, P.C., Albany (Ter-
Jonathan A. Damon, Paul H. Cohen, Ka-         ence L. Kindlon and Kathy Manley of
thryn S. Catenacci, Desiree A. DiCorcia,      counsel), for appellants in the third above-
Angela M. Papalaskaris and Colin G. Stew-     entitled action.
art of counsel), for Association to Benefit
Children and others, amici curiae in the        John J. Reilly, Corporation Counsel, Al-
first and second above-entitled actions.      bany (Patrick K. Jordan of counsel), for
  Norman J. Chachkin, New York City,          John Marsolais, respondent in the third
and Victor A. Bolden for NAACP Legal          above-entitled action.
Defense and Educational Fund, Inc., ami-        Bixler & Stumbar, Ithaca (L. Richard
cus curiae in the first and second above-     Stumbar and Elizabeth J. Bixler of coun-
entitled actions.                             sel), and LoPinto, Schlather, Geldenhuys &
  Suzanne B. Goldberg, New York City,         Salk (Mariette Geldenhuys and Diane V.
Arnold & Porter LLP, New York City and        Bruns of counsel), for appellants in the
Washington, D.C. (Robert C. Mason, Doro-      fourth above-entitled action.
                               HERNANDEZ v. ROBLES                                    N. Y.   5
                                 Cite as 855 N.E.2d 1 (N.Y. 2006)

   Eliot Spitzer, Attorney General, Albany        sel), for Dr. Paul McHugh, M.D., and an-
(Peter H. Schiff, Andrea Oser and Julie M.        other, amici curiae in the first, second,
Sheridan of counsel), for Attorney General,       third and fourth above-entitled actions.
intervenor in the first above-entitled ac-
tion, and for New York State Department                  S 356OPINION OF THE COURT
of Health and another, respondents in the
second, third and fourth above-entitled ac-          R.S. SMITH, J.
tions.                                              We hold that the New York Constitution
   Barth, Sullivan & Behr, Buffalo (Lau-          does not compel recognition of marriages
rence D. Behr of counsel), and Marriage           between members of the same sex.
Law Foundation, Orem, Utah (Monte N.              Whether such marriages should be recog-
Stewart of counsel), for United Families          nized is a question to be addressed by the
International, amicus curiae in the first,        Legislature.
second, third and fourth above-entitled ac-                Facts and Procedural History
                                                      Plaintiffs and petitioners (hereafter
  Shapiro Forman Allen Sava & McPher-
                                                  plaintiffs) are the members of 44 same-sex
son LLP, New York City (Laurie McPher-
                                                  couples. Each couple tried unsuccess-fully
son and Jason Vigna of counsel), Alicia
                                                  to obtain a marriage license. Plaintiffs
Ouellette, Albany, and Stephen Clark for
                                                  then began these four lawsuits, seeking
Alicia Ouellette and others, amici curiae in
                                                  declaratory judgments that the restriction
the first, second, third and fourth above-
                                                  of marriage to opposite-sex couples is in-
entitled actions.
                                                  valid under the State Constitution. Defen-
   Stephen P. Hayford, Albany, and Joshua         dants and respondents (hereafter defen-
K. Baker, Manassas, Virginia, for James           dants) are the license-issuing authorities of
Q. Wilson and others, amici curiae in the         New York City, Albany and Ithaca; the
first, second, third and fourth above-enti-       State Department of Health, which
tled actions.                                     S 357instructs local authorities about the is-
  Coti & Sugrue, New York City (Ralph              suance of marriage licenses; and the State
Coti of counsel), for Alliance for Marriage,       itself. In Hernandez v. Robles, Supreme
amicus curiae in the first, second, third          Court granted summary judgment in
and fourth above-entitled actions.                 plaintiffs’ favor; the Appellate Division re-
  Debevoise & Plimpton LLP, New York               versed. In Samuels v. New York State
City (Kristin D. Kiehn, Eliza M. Sporn,            Department of Health, Matter of Kane v.
Sally S. Pritchard and Jennifer E. Spain of        Marsolais and Seymour v. Holcomb, Su-
counsel), for Parents, Families & Friends         preme Court granted summary judgment
of Lesbians and Gays, Inc. and others,            in defendants’ favor, and the Appellate
amici curiae in the first, second, third and      Division affirmed. We now affirm the or-
fourth above-entitled actions.                    ders of the Appellate Division.
   Ruta & Soulios, LLP, New York City                               Discussion
(Steven Soulios of counsel), for Pastor                                 I
Gregory L. Wilk and others, amici curiae             [1] All the parties to these cases now
in the first, second, third and fourth above-     acknowledge, implicitly or explicitly, that
entitled actions.                                 the Domestic Relations Law limits mar-
 Law Offices of Brian W. Raum, P.C.,              riage to opposite-sex couples. Some amici,
New York City (Brian W. Raum of coun-             however, suggest that the statute can be
6   N. Y.          855 NORTH EASTERN REPORTER, 2d SERIES

read to permit same-sex marriage, thus         does not encompass marriage to same-sex
mooting the constitutional issues. We find     partner]; Morrison v. Sadler, 821 N.E.2d
this suggestion untenable.                     15 [Ind.2005] [Indiana Constitution does
   Articles 2 and 3 of the Domestic Rela-      not require judicial recognition of same-sex
tions Law, which govern marriage, no-          marriage]; Lewis v. Harris, 378 N.J.Su-
where say in so many words that only           per. 168, 875 A.2d 259 [2005] [limitation of
people of different sexes may marry each       marriage to members of opposite sex does
other, but that was the universal under-       not violate New Jersey Constitution];
standing when articles 2 and 3 were            Baehr v. Lewin, 74 Haw. 530, 852 P.2d 44
adopted in 1909, an understanding re-          [1993] [refusal of marriage licenses to cou-
flected in several statutes. Domestic Re-      ples of the same sex subject to strict scru-
lations Law § 12 provides that ‘‘the parties   tiny under Hawaii Constitution]; Baker v.
must solemnly declare TTT that they take       State, 170 Vt. 194, 744 A.2d 864 [1999]
each other as husband and wife.’’ Domes-       [denial to same-sex couples of benefits and
tic Relations Law § 15(1)(a) requires town     protections afforded to married people vio-
and city clerks to obtain specified informa-   lates Vermont Constitution] ).          Here,
tion from ‘‘the groom’’ and ‘‘the bride.’’     plaintiffs claim that, by limiting marriage
Domestic Relations Law § 5 prohibits cer-      to opposite-sex couples, the New York Do-
tain marriages as incestuous, specifying       mestic Relations Law violates two provi-
opposite-sex combinations (brother and         sions of the State Constitution: the Due
sister, uncle and niece, aunt and nephew),     Process Clause (art. I, § 6 [‘‘No person
but not same-sex combinations. Domestic        shall be deprived of life, liberty or proper-
Relations Law § 50 says that the property      ty without due process of law’’] ) and the
of ‘‘a married woman TTT shall not be          Equal Protection Clause (art. I, § 11 [‘‘No
subject to her husband’s control.’’            person shall be denied the equal protection
                                               of the laws of this state or any subdivision
  New York’s statutory law clearly limits
                                               thereof’’] ).
marriage to opposite-sex couples. The
more serious question is whether that limi-       We approach plaintiffs’ claims by first
tation is consistent with the New York         considering, in section III below, whether
Constitution.                                  the challenged limitation can be defended
                                               as a rational legislative decision. The an-
                    II                         swer to this question, as we show in sec-
   New York is one of many states in which     tion IV below, is critical at every stage of
supporters of same-sex marriage have as-       the due process and equal protection anal-
serted it as a state constitutional right.     ysis.
Several other state courts have decided
such cases, under various state constitu-                          III
tional provisions and with divergent re-         [2] It is undisputed that the benefits of
sults (e.g., Goodridge v. Department of        marriage are many. The diligence of
Pub. Health, 440 Mass. 309, 798 N.E.2d         counsel has identified 316 such benefits in
941 [2003] [excluding same-sex couples         New York law, of which it is enough to
from marSriage358 violates Massachusetts       summarize some of the most important:
Constitution]; Standhardt v. Superior Ct.      Married people receive significant tax ad-
ex rel. County of Maricopa, 206 Ariz. 276,     vantages, rights in probate and intestacy
77 P.3d 451 [Ct.App.2004] [constitutional      proceedings, rights to support from their
right to marry under Arizona Constitution      spouses both during the marriage and af-
                               HERNANDEZ v. ROBLES                                    N. Y.   7
                                 Cite as 855 N.E.2d 1 (N.Y. 2006)

ter it is dissolved, and rights to be treated     marriage and its attendant benefits—to
as family members in obtaining insurance          opposite-sex couples who make a solemn,
coverage and making health care decisions.        long-term commitment to each other.
Beyond this, they receive the symbolic               The Legislature could find that this ra-
benefit, or moral satisfaction, of seeing         tionale for marriage does not apply with
their relationships recognized by the State.      comparable force to same-sex couples.
   The critical question is whether a ration-     These couples can become parents by
al legislature could decide that these bene-      adoption, or by artificial insemination or
fits should be given to members of oppo-          other technological marvels, but they do
site-sex couples, but not same-sex couples.       not become parents as a result of accident
The question is not, we emphasize, wheth-         or impulse. The Legislature could find
er the Legislature must or should continue        that unstable relationships between people
to limit marriage in this way; of course          of the opposite sex present a greater dan-
the Legislature S 359may (subject to the ef-      ger that children will be born into or grow
fect of the federal Defense of Marriage Act       up in unstable homes than is the case with
[Pub. L. 104–199, 110 U.S. Stat. 2419] )          same-sex couples, and thus that promoting
extend marriage or some or all of its bene-       stability in opposite-sex relationships will
fits to same-sex couples. We conclude,            help children more. This is one reason
however, that there are at least two              why the Legislature could rationally offer
grounds that rationally support the limita-       the benefits of marriage to opposite-sex
tion on marriage that the Legislature has         couples only.
enacted. Others have been advanced, but              There is a second reason: The Legisla-
we will discuss only these two, both of           ture could rationally believe that it is bet-
which are derived from the undisputed             ter, other things being equal, for children
assumption that marriage is important to          to grow up with both a mother and a
the welfare of children.                          father. Intuition and experience suggest
   First, the Legislature could rationally        that a child benefits from having before his
decide that, for the welfare of children, it      or her eyes, every day, living models of
is more important to promote stability, and       what both a man and a woman are like. It
to avoid instability, in opposite-sex than in     is obvious that there are exceptions to this
same-sex relationships. Heterosexual in-          general rule—some children who never
tercourse has a natural tendency to lead to       know their fathers, or their S 360mothers, do
the birth of children; homosexual inter-          far better than some who grow up with
                                                  parents of both sexes—but the Legislature
course does not. Despite the advances of
                                                  could find that the general rule will usually
science, it remains true that the vast ma-
jority of children are born as a result of a
sexual relationship between a man and a             Plaintiffs, and amici supporting them,
woman, and the Legislature could find that        argue that the proposition asserted is sim-
this will continue to be true. The Legisla-       ply untrue: that a home with two parents
ture could also find that such relationships      of different sexes has no advantage, from
are all too often casual or temporary. It         the point of view of raising children, over a
could find that an important function of          home with two parents of the same sex.
marriage is to create more stability and          Perhaps they are right, but the Legisla-
permanence in the relationships that cause        ture could rationally think otherwise.
children to be born. It thus could choose           To support their argument, plaintiffs
to offer an inducement—in the form of             and amici supporting them refer to social
8   N. Y.          855 NORTH EASTERN REPORTER, 2d SERIES

science literature reporting studies of        Loving v. Virginia, 388 U.S. 1, 87 S.Ct.
same-sex parents and their children.           1817, 18 L.Ed.2d 1010 (1967), a prohibition
Some opponents of same-sex marriage            on inter-Sracial361 marriage that was plainly
criticize these studies, but we need not       ‘‘designed to maintain White Supremacy’’
consider the criticism, for the studies on     (id. at 11, 87 S.Ct. 1817)—we would hold it
their face do not establish beyond doubt       invalid, no matter how long its history. As
that children fare equally well in same-sex    the dissent points out, a long and shameful
and opposite-sex households. What they         history of racism lay behind the kind of
show, at most, is that rather limited obser-   statute invalidated in Loving.
vation has detected no marked differences.
More definitive results could hardly be           But the historical background of Loving
expected, for until recently few children      is different from the history underlying
have been raised in same-sex households,       this case. Racism has been recognized for
and there has not been enough time to          centuries—at first by a few people, and
study the long-term results of such child-     later by many more—as a revolting moral
rearing.                                       evil. This country fought a civil war to
   Plaintiffs seem to assume that they have    eliminate racism’s worst manifestation,
demonstrated the irrationality of the view     slavery, and passed three constitutional
that opposite-sex marriages offer advan-       amendments to eliminate that curse and
tages to children by showing there is no       its vestiges. Loving was part of the civil
scientific evidence to support it. Even        rights revolution of the 1950’s and 1960’s,
assuming no such evidence exists, this rea-    the triumph of a cause for which many
soning is flawed. In the absence of conclu-    heroes and many ordinary people had
sive scientific evidence, the Legislature      struggled since our nation began.
could rationally proceed on the common-
                                                  It is true that there has been serious
sense premise that children will do best
                                               injustice in the treatment of homosexuals
with a mother and father in the home.
                                               also, a wrong that has been widely recog-
(See Goodridge, 440 Mass. at 358–359, 798
                                               nized only in the relatively recent past,
N.E.2d at 979–980 [Sosman, J., dissent-
                                               and one our Legislature tried to address
ing].) And a legislature proceeding on
                                               when it enacted the Sexual Orientation
that premise could rationally decide to of-
                                               Non–Discrimination Act four years ago (L.
fer a special inducement, the legal recogni-
                                               2002, ch. 2). But the traditional definition
tion of marriage, to encourage the forma-
                                               of marriage is not merely a by-product of
tion of opposite-sex households.
                                               historical injustice. Its history is of a
   In sum, there are rational grounds on       different kind.
which the Legislature could choose to re-
strict marriage to couples of opposite sex.      The idea that same-sex marriage is even
Plaintiffs have not persuaded us that this     possible is a relatively new one. Until a
long-accepted restriction is a wholly irra-    few decades ago, it was an accepted truth
tional one, based solely on ignorance and      for almost everyone who ever lived, in any
prejudice against homosexuals. This is         society in which marriage existed, that
the question on which these cases turn. If     there could be marriages only between
we were convinced that the restriction         participants of different sex. A court
plaintiffs attack were founded on nothing      should not lightly conclude that everyone
but prejudice—if we agreed with plaintiffs     who held this belief was irrational, igno-
that it is comparable to the restriction in    rant or bigoted. We do not so conclude.
                               HERNANDEZ v. ROBLES                                    N. Y.   9
                                 Cite as 855 N.E.2d 1 (N.Y. 2006)

                     IV                           Court’s ruling without opinion in Baker v.
   Our conclusion that there is a rational        Nelson, 409 U.S. 810, 93 S.Ct. 37, 34
basis for limiting marriage to opposite-sex       L.Ed.2d 65 (1972) bars us from consider-
couples leads us to hold that that limitation     ing plaintiffs’ equal protection claims. But
is valid under the New York Due Process           both New York and federal decisions guide
and Equal Protection clauses, and that any        us in applying the Due Process and Equal
expansion of the traditional definition of        Protection clauses.
marriage should come from the Legisla-
ture.                                             A.    Due Process

   [3] This Court is the final authority as          [4, 5] In deciding the validity of legisla-
to the meaning of the New York Constitu-          tion under the Due Process Clause, courts
tion. This does not mean, of course, that         first inquire whether the legislation re-
we ignore the United States Supreme               stricts the exercise of a fundamental right,
Court’s interpretations of similarly worded       one that is ‘‘deeply rooted in this Nation’s
clauses of the Federal Constitution. The          history and tradition’’ (Washington v.
governing principle is that our Constitu-         Glucksberg, 521 U.S. 702, 721, 117 S.Ct.
tion cannot afford less protection to our         2258, 138 L.Ed.2d 772 [1997], quoting
citizens than the Federal Constitution            Moore v. East Cleveland, 431 U.S. 494,
does, but it can give more (People v. P.J.        503, 97 S.Ct. 1932, 52 L.Ed.2d 531 [1977]
Video, 68 N.Y.2d 296, 302, 508 N.Y.S.2d           [plurality op.]; Hope v. Perales, 83 N.Y.2d
907, 501 N.E.2d 556 S 362[1986] ). We have        563, 575, 611 N.Y.S.2d 811, 634 N.E.2d 183
at times found our Due Process Clause to          [1994] ). In this case, whether the right in
be more protective of rights than its feder-      question is ‘‘fundamental’’ depends on how
al counterpart, usually in cases involving        it is defined. The right to marry is un-
the rights of criminal defendants (e.g., Peo-     questionably a fundamental right (Loving,
ple v. LaValle, 3 N.Y.3d 88, 783 N.Y.S.2d         388 U.S. at 12, 87 S.Ct. 1817; Zablocki v.
485, 817 N.E.2d 341 [2004] ) or prisoners         Redhail, 434 U.S. 374, 384, 98 S.Ct. 673, 54
(e.g., Cooper v. Morin, 49 N.Y.2d 69, 424         L.Ed.2d 618 [1978]; Cooper, 49 N.Y.2d at
N.Y.S.2d 168, 399 N.E.2d 1188 [1979] ). In        79, 424 N.Y.S.2d 168, 399 N.E.2d 1188).
general, we have used the same analytical         The right to marry someone of the same
framework as the Supreme Court in con-            sex, however, is not ‘‘deeply rooted’’; it
sidering due process cases, though our            has not even been asserted until relatively
analysis may lead to different results. By        recent times. The issue then becomes
contrast, we have held that our Equal             whether the right to marry must be de-
Protection Clause ‘‘is no broader in cover-       fined to include a right to same-sex mar-
age than the Federal provision’’ (Under 21,       riage.
Catholic Home Bur. for Dependent Chil-               Recent Supreme Court decisions show
dren v. City of New York, 65 N.Y.2d 344,          that the definition of a fundamental right
360 n. 6, 492 N.Y.S.2d 522, 482 N.E.2d 1          for due process purposes may be either too
[1985] ).                                         narrow or too broad. In Lawrence v. Tex-
  We find no inconsistency that is signifi-       as, 539 U.S. 558, 566, 123 S.Ct. 2472, 156
cant in this case between our due process         L.Ed.2d 508 (2003), the Supreme Court
and equal protection decisions and the Su-        criticized its own prior decision in Bowers
preme Court’s. No precedent answers for           v. Hardwick, 478 U.S. 186, 190, 106 S.Ct.
us the question we face today; we reject          2841, 92 L.Ed.2d 140 (1986) for defining
defendants’ argument that the Supreme             the right at issue as the right of ‘‘homosex-
10   N. Y.         855 NORTH EASTERN REPORTER, 2d SERIES

uals to engage in sodomy.’’ The Lawrence         ernmental interest, and we have shown
court plainly thought the right should           above that there is a rational relationship
S 363have been defined more broadly, as a        between that interest and the limitation of
 right to privacy in intimate relationships.     marriage to opposite-sex couples. That
 On the other hand, in Washington v.             limitation therefore does not deprive plain-
 Glucksberg, 521 U.S. at 722, 723, 117 S.Ct.     tiffs of due process of law.
 2258, the Court criticized a lower federal
 court for defining the right at issue too       B.   Equal Protection
 broadly as a ‘‘right to die’’; the right at        [8] Plaintiffs claim that the distinction
 issue in Glucksberg, the Court said, was        made by the Domestic Relations Law be-
 really the ‘‘right to commit suicide’’ and to   tween opposite-sex and same-sex couples
 have assistance in doing so.                    deprives them of the equal protection of
   [6] The difference between Lawrence           the laws. This claim raises, first, the issue
and Glucksberg is that in Glucksberg the         of what level of scrutiny should be applied
relatively narrow definition of the right at     to the legislative classification. The plain-
issue was based on rational line-drawing.        tiffs argue for strict scrutiny, on the
In Lawrence, by contrast, the court found        ground that the legislation affects their
the distinction between homosexual sod-          fundamental right to marry (see Alevy v.
omy and intimate relations generally to be       Downstate Med. Ctr. of State of N.Y., 39
essentially arbitrary. Here, there are, as       N.Y.2d 326, 332, 384 N.Y.S.2d 82, 348
we have explained, rational grounds for          N.E.2d 537 [1976] )—a contention we re-
limiting the definition of marriage to oppo-     jected above. Alternatively, plaintiffs ar-
site-sex couples. This case is therefore, in     gue for so-called intermediate or height-
the relevant way, like Glucksberg and not        ened scrutiny on two grounds. They say
at all like Lawrence. Plaintiffs here do         that the legislaStion364 discriminates on the
not, as the petitioners in Lawrence did,         basis of sex, a kind of discrimination that
seek protection against state intrusion on       has been held to trigger heightened scruti-
intimate, private activity. They seek from       ny (e.g., United States v. Virginia, 518
the courts access to a state-conferred ben-      U.S. 515, 532–533, 116 S.Ct. 2264, 135
efit that the Legislature has rationally lim-    L.Ed.2d 735 [1996] ). They also say that
ited to opposite-sex couples. We conclude        discrimination on the basis of sexual pref-
that, by defining marriage as it has, the        erence should trigger heightened scrutiny,
New York Legislature has not restricted          a possibility we left open in Under 21,
the exercise of a fundamental right (see         Catholic Home Bur. for Dependent Chil-
also concurring op. of Judge Graffeo at          dren v. City of New York, 65 N.Y.2d at
368–374, 821 N.Y.S.2d at 782–787, 855            364, 492 N.Y.S.2d 522, 482 N.E.2d 1. We
N.E.2d at 13–18).                                reject both of these arguments, and hold
   [7] Where no fundamental right is at          that the restriction of marriage to oppo-
issue, legislation is valid under the Due        site-sex couples is subject only to rational
Process Clause if it is rationally related to    basis scrutiny.
legitimate government interests (Glucks-           By limiting marriage to opposite-sex
berg, 521 U.S. at 728, 117 S.Ct. 2258;           couples, New York is not engaging in sex
Hope, 83 N.Y.2d at 577, 611 N.Y.S.2d 811,        discrimination. The limitation does not
634 N.E.2d 183). Again, our earlier dis-         put men and women in different classes,
cussion answers this question. Protecting        and give one class a benefit not given to
the welfare of children is a legitimate gov-     the other. Women and men are treated
                                HERNANDEZ v. ROBLES                                    N. Y.   11
                                  Cite as 855 N.E.2d 1 (N.Y. 2006)

alike—they are permitted to marry people           children is relevant to the S 365State’s inter-
of the opposite sex, but not people of their       est in fostering relationships that will
own sex. This is not the kind of sham              serve children best. In this area, there-
equality that the Supreme Court confront-          fore, we conclude that rational basis scruti-
ed in Loving; the statute there, prohibit-         ny is appropriate.
ing black and white people from marrying              [9, 10] Where rational basis scrutiny
each other, was in substance anti-black            applies, ‘‘[t]he general rule is that legisla-
legislation. Plaintiffs do not argue here          tion is presumed to be valid and will be
that the legislation they challenge is de-         sustained if the classification drawn by the
signed to subordinate either men to wom-           statute is rationally related to a legitimate
en or women to men as a class.                     state interest’’ (id. at 440, 105 S.Ct. 3249).
   However, the legislation does confer ad-        Plaintiffs argue that a classification distin-
vantages on the basis of sexual preference.        guishing between opposite-sex couples and
Those who prefer relationships with people         same-sex couples cannot pass rational ba-
of the opposite sex and those who prefer           sis scrutiny, because if the relevant state
relationships with people of the same sex          interest is the protection of children, the
are not treated alike, since only opposite-        category of those permitted to marry—
sex relationships may gain the status and          opposite-sex couples—is both underinclu-
benefits associated with marriage. This            sive and overinclusive. We disagree.
case thus presents the question of what               Plaintiffs argue that the category is un-
level of scrutiny is to be applied to legisla-     derinclusive because, as we recognized
tion that classifies people on this basis.         above, same-sex couples, as well as oppo-
We held in Under 21 that ‘‘classifications         site-sex couples, may have children. That
based on sexual orientation’’ would not be         is indeed a reason why the Legislature
subject to strict scrutiny, but left open the      might rationally choose to extend marriage
question of ‘‘whether some level of ‘height-       or its benefits to same-sex couples; but it
ened scrutiny’ would be applied’’ in such          could also, for the reasons we have ex-
cases (id. at 364, 492 N.Y.S.2d 522, 482           plained, rationally make another choice,
N.E.2d 1).                                         based on the different characteristics of
   We resolve this question in this case on        opposite-sex and same-sex relationships.
the basis of the Supreme Court’s observa-          Our earlier discussion demonstrates that
tion that no more than rational basis scru-        the definition of marriage to include only
tiny is generally appropriate ‘‘where indi-        opposite-sex couples is not irrationally un-
viduals in the group affected by a law have        derinclusive.
distinguishing characteristics relevant to            In arguing that the definition is overin-
interests the State has the authority to           clusive, plaintiffs point out that many op-
implement’’ (Cleburne v. Cleburne Living           posite-sex couples cannot have or do not
Center, Inc., 473 U.S. 432, 441, 105 S.Ct.         want to have children. How can it be
3249, 87 L.Ed.2d 313 [1985] ). Perhaps             rational, they ask, to permit these couples,
that principle would lead us to apply              but not same-sex couples, to marry? The
heightened scrutiny to sexual preference           question is not a difficult one to answer.
discrimination in some cases, but not              While same-sex couples and opposite-sex
where we review legislation governing              couples are easily distinguished, limiting
marriage and family relationships. A per-          marriage to opposite-sex couples likely to
son’s preference for the sort of sexual            have children would require grossly intru-
activity that cannot lead to the birth of          sive inquiries, and arbitrary and unreliable
12   N. Y.         855 NORTH EASTERN REPORTER, 2d SERIES

line-drawing. A legislature that regarded       generation should have a chance to decide
marriage primarily or solely as an institu-     the issue through its elected representa-
tion for the benefit of children could ra-      tives. We therefore express our hope that
tionally find that an attempt to exclude        the participants in the controversy over
childless opposite-sex couples from the in-     same-sex marriage will address their argu-
stitution would be a very bad idea.             ments to the Legislature; that the Legis-
                                                lature will listen and decide as wisely as it
   [11] Rational basis scrutiny is highly
                                                can; and that those unhappy with the re-
indulgent towards the State’s classifica-
                                                sult—as many undoubtedly will be—will
tions (see Heller v. Doe, 509 U.S. 312, 320–
                                                respect it as people in a democratic state
321, 113 S.Ct. 2637, 125 L.Ed.2d 257            should respect choices democratically
[1993] ). Indeed, it is ‘‘a paradigm of judi-   made.
cial restraint’’ (Affronti v. Crosson, 95
                                                  Accordingly, the orders of the Appellate
N.Y.2d 713, 719, 723 N.Y.S.2d 757, 746
                                                Division in each case should be affirmed
N.E.2d 1049 [2001], cert. denied sub nom.
                                                without costs.
Affronti v. Lippman, 534 U.S. 826, 122
S.Ct. 66, 151 L.Ed.2d 32 [2001] ). We             GRAFFEO, J. (concurring).
conclude that permitting marriage by all
                                                   We are asked by the 44 same-sex cou-
opposite-sex couples does not create an
                                                ples who commenced these four cases to
irrationally overnarrow or overbroad clas-
                                                declare that the denial of marriage licens-
sification. The distinction between oppo-       es to same-sex couples violates the Due
site-sex and same-sex couples enacted by        Process and Equal Protection clauses of
the Legislature does not violate the Equal      the New York Constitution. Plaintiffs and
Protection Clause.                              petitioners (collectively referred to as
                                                plaintiffs) are representative of many ho-
                    S 366V
                                                mosexual couples living in committed rela-
   We hold, in sum, that the Domestic Re-       tionships in our state, some of whom are
lations Law’s limitation of marriage to op-     raising children. They seek the societal
posite-sex couples is not unconstitutional.     recognition and legal and financial benefits
We emphasize once again that we are de-         accorded by the State to legally married
ciding only this constitutional question. It    couples. Respondents are the State of
is not for us to say whether same-sex           New York, the State Department of
marriage is right or wrong. We have pre-        Health and local officials from the cities of
sented some (though not all) of the argu-       New York, Albany and Ithaca who are
ments against same-sex marriage because         involved either in overseeing the New
our duty to defer to the Legislature re-        York marriage licensing process or issuing
quires us to do so. We do not imply that        marriage licenses.
there are no persuasive arguments on the            Plaintiffs assert that the restriction of
other side—and we know, of course, that         marriage to opposite-sex couples impedes
there are very powerful emotions on both        the fundamental right to marry and
sides of the question.                          amounts to gender or sexual orientation
   The dissenters assert confidently that       discrimination that does not withstand any
‘‘future generations’’ will agree with their    level of constitutional analysis, whether
view of this case (dissenting op at 396, 821    S 367strict scrutiny, intermediate scrutiny or
N.Y.S.2d at 803, 855 N.E.2d at 34). We do        rational basis review. Because the deter-
not predict what people will think genera-       mination of the proper level of constitu-
tions from now, but we believe the present       tional review is crucial to the judicial reso-
                                 HERNANDEZ v. ROBLES                                 N. Y.   13
                                  Cite as 855 N.E.2d 1 (N.Y. 2006)

lution of the issues in this case, I write         this Court can avoid a constitutional analy-
separately to elaborate on the standard of         sis by simply interpreting the statutory
review that should be applied under the            scheme to allow same-sex marriage. Our
precedent of this Court and the United             role when construing a statute is to ascer-
States Supreme Court. I conclude that              tain and implement the will of the Legisla-
rational basis analysis is appropriate and,        ture unless we are prevented from doing
applying this standard, I concur in the            so by constitutional infirmity. It would be
result reached by the plurality that an            inappropriate for us to interpret the Do-
affirmance is warranted in each of these           mestic Relations Law in a manner that
cases.                                             virtually all concede would not comport
    This Court has long recognized that            with legislative intent.
‘‘[f]rom time immemorial the State has
                                                      There is no basis to conclude that, when
exercised the fullest control over the mar-
                                                   the Legislature adopted the Domestic Re-
riage relation,’’ going so far as to observe
                                                   lations Law more than a century ago, it
that ‘‘[t]here are, in effect, three parties to
                                                   contemplated the possibility of same-sex
every marriage, the man, the woman and
                                                   marriage, S 368much less intended to author-
the State’’ (Fearon v. Treanor, 272 N.Y.
                                                   ize it. In fact, the Domestic Relations
268, 272, 5 N.E.2d 815 [1936], appeal dis-
                                                   Law contains many references to married
missed 301 U.S. 667, 57 S.Ct. 933, 81 L.Ed.
                                                   persons that demonstrate that the Legisla-
1332 [1937] ). The historical conception of
                                                   ture viewed marriage as a union between
marriage as a union between a man and a
                                                   one woman and one man—as seen by ref-
woman is reflected in the civil institution of
                                                   erences to the parties to a marriage as the
marriage adopted by the New York Legis-
                                                   ‘‘bride’’ and ‘‘groom’’ (Domestic Relations
lature. The cases before us present no
                                                   Law § 15[1][a] ) and ‘‘wife’’ and ‘‘husband’’
occasion for this Court to debate whether
                                                   (Domestic Relations Law §§ 6, 12, 221,
the State Legislature should, as a matter
                                                   248; see also CPLR 4502[b] ). Notably,
of social welfare or sound public policy,
                                                   high courts of other states with statutory
extend marriage to same-sex couples. Our
                                                   schemes comparable to New York’s have
role is limited to assessing whether the
                                                   interpreted the pertinent statutes as not
current statutory scheme offends the Due
                                                   authorizing same-sex marriage (see Goo-
Process or Equal Protection clauses of the
                                                   dridge v. Department of Pub. Health, 440
New York Constitution. Because it does
                                                   Mass. 309, 798 N.E.2d 941 [2003]; Baker
not, we must affirm. Absent a constitu-
                                                   v. Nelson, 291 Minn. 310, 191 N.W.2d 185
tional violation, we may not disturb duly
                                                   [1971], appeal dismissed 409 U.S. 810, 93
enacted statutes to, in effect, substitute
                                                   S.Ct. 37, 34 L.Ed.2d 65 [1972] ). And sev-
another policy preference for that of the
                                                   eral of our prior cases alluded to the fact
                                                   that the Domestic Relations Law precludes
The Statutory Scheme:                              same-sex couples from marrying (Levin v.
   As a preliminary matter, although plain-        Yeshiva Univ., 96 N.Y.2d 484, 494, 730
tiffs have abandoned the argument (raised          N.Y.S.2d 15, 754 N.E.2d 1099 [2001];
in Supreme Court in both Kane and Sey-             Braschi v. Stahl Assoc. Co., 74 N.Y.2d 201,
mour ) that the Domestic Relations Law             210, 544 N.Y.S.2d 784, 543 N.E.2d 49
already authorizes same-sex marriage be-           [1989] ). Because the Domestic Relations
cause it does not explicitly define marriage       Law does not authorize marriage between
as a union between one man and one wom-            persons of the same sex, this Court must
an, several amici continue to suggest that         address plaintiffs’ constitutional challenges
14   N. Y.          855 NORTH EASTERN REPORTER, 2d SERIES

to the validity of the marriage scheme,           it has relied on federal precedent and simi-
which are at the heart of this litigation.        larly used the word ‘‘marriage’’ in its tradi-
Due Process:                                      tional sense. For example, in Cooper v.
   Plaintiffs argue that the Domestic Rela-       Morin, we grounded the right of pretrial
tions Law violates article I, § 6 of the New      detainees to have contact visits with family
York Constitution, which provides that            on the ‘‘fundamental right to marriage and
‘‘[n]o person shall be deprived of life, liber-   family life TTT and to bear and rear chil-
ty or property without due process of law.’’      dren’’ (49 N.Y.2d 69, 80, 424 N.Y.S.2d 168,
Their substantive due process challenge is        399 N.E.2d 1188 [1979], cert. denied sub
predicated on the assertion that the New          nom. Lombard v. Cooper, 446 U.S. 984,
York Constitution precludes the State             100 S.Ct. 2965, 64 L.Ed.2d 840 [1980] ),
from defining marriage as a union between         citing U.S. Supreme Court cases highlight-
one man and one woman because the right           ing the link between marriage and pro-
to privacy derived therein grants each in-        creation. As the Third Department aptly
dividual the unqualified right to select and      noted in Samuels, to ignore the meaning
marry the person of his or her choice. If         ascribed to the right to marry in these
the Due Process Clause encompasses this           cases and substitute another meaning in
right, and if it is one of the bundle of          its place is to redefine the right in question
rights deemed ‘‘fundamental’’ as plaintiffs       and to tear the resulting new right away
contend, the Domestic Relations Law               from the very roots that caused the U.S.
would be subjected to the most demanding          Supreme Court and this Court to recog-
form of constitutional review, with the           nize marriage as a fundamental right in
State having the burden to prove that it is       the first place.
narrowly tailored to serve compelling state          Nor has this Court recognized a due
interests.                                        process right to privacy distinct from that
  But it is an inescapable fact that New          articulated by the U.S. Supreme Court.
York due process cases and the relevant           Although our Court has interpreted the
federal case law cited therein do not sup-        New York Due Process Clause more
port plaintiffs’ argument. While many             broadly than its federal counterpart on a
U.S. Supreme Court decisions recognize            few occasions, all of those cases involved
marriage as a fundamental right protected         the rights of criminal defendants, prison-
under the Due Process Clause, all of these        ers or pretrial detainees, or other confined
cases understood the marriage S 369right as       individuals and implicated classic liberty
involving a union of one woman and one            concerns beyond the right to privacy.
man (see e.g. Turner v. Safley, 482 U.S. 78,      Most recently, in People v. LaValle, 3
107 S.Ct. 2254, 96 L.Ed.2d 64 [1987]; Za-         N.Y.3d 88, 783 N.Y.S.2d 485, 817 N.E.2d
blocki v. Redhail, 434 U.S. 374, 98 S.Ct.         341 (2004), the Court concluded that the
673, 54 L.Ed.2d 618 [1978]; Griswold v.           anticipatory deadlock charge in the Death
Connecticut, 381 U.S. 479, 85 S.Ct. 1678,         Penalty Act violated New York’s Due Pro-
14 L.Ed.2d 510 [1965]; Skinner v. Okla-           cess Clause, even though it may have been
homa ex rel. Williamson, 316 U.S. 535, 62         upheld under the United States Constitu-
S.Ct. 1110, 86 L.Ed. 1655 [1942] ). Wheth-        tion. Likewise, in Cooper, 49 N.Y.2d 69,
er interpreting New York’s Due Process            424 N.Y.S.2d 168, 399 N.E.2d 1188 (1979),
Clause or its federal counterpart (which is       we held that the New York Due Process
textually identical), when this Court has         Clause protected the right of pretrial de-
addressed the fundamental right to marry,         tainees in a county jail to have nonconjugal
                                       HERNANDEZ v. ROBLES                                     N. Y.   15
                                        Cite as 855 N.E.2d 1 (N.Y. 2006)

contact visits with family members, even                 supporting procreation and child-rearing
though no such right had been deemed                     (316 U.S. at 541, 62 S.Ct. 1110; see also
protected under the federal Due Process                  Zablocki, 434 U.S. 374, 98 S.Ct. 673;
Clause. Even then, our analysis did not                  Griswold, 381 U.S. 479, 85 S.Ct. 1678).
turn on recognition of broader family pri-               The binary nature of marriage—its inclu-
vacy rights than those articulated by the                sion of one woman and one man—reflects
Supreme Court. Rather, the analysis fo-                  the biological fact that human procreation
cused on rejection of the rational basis test            cannot be accomplished without the genet-
that the Supreme Court then applied to
                                                         ic contribution of both a male and a fe-
S 370assess jail regulations,1 with this Court
                                                         male. Marriage creates a supportive en-
instead adopting a test that ‘‘balanc[ed]
                                                         vironment for procreation to occur and
TTT the harm to the individual resulting
                                                         the resulting offspring to be nurtured.
from the condition imposed against the
                                                         Although plaintiffs suggest that the con-
benefit sought by the government through
its enforcement’’ (id. at 79, 424 N.Y.S.2d               nection between procreation and marriage
168, 399 N.E.2d 1188).                                   has become anachronistic because of sci-
                                                         entific advances in assisted reproduction
   Most of our Due Process Clause deci-
                                                         technology, the fact remains that the vast
sions in the right to privacy realm have
                                                         majority of children are conceived natural-
cited federal authority interchangeably
                                                         ly through sexual contact between a wom-
with New York precedent, making no dis-
tinction between New York’s constitution-                an and a man.
al provision and the federal Due Process                    Plaintiffs’ reliance on Loving v. Virgi-
Clause (see e.g. Hope v. Perales, 83                     nia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d
N.Y.2d 563, 575, 611 N.Y.S.2d 811, 634                   1010 (1967) for the proposition that the
N.E.2d 183 [1994]; Matter of Raquel Ma-                  U.S. Supreme Court has established a fun-
rie X., 76 N.Y.2d 387, 559 N.Y.S.2d 855,
                                                         damental ‘‘right to marry the spouse of
559 N.E.2d 418 [1990], cert. denied sub
                                                         one’s choice’’ outside the male/female con-
nom. Robert C. v. Miguel T., 498 U.S.
                                                         struct is misplaced. In Loving, an interra-
984, 111 S.Ct. 517, 112 L.Ed.2d 528 [1990];
                                                         cial couple argued that Virginia’s antimis-
Matter of Doe v. Coughlin, 71 N.Y.2d 48,
                                                         cegenation statute, which precluded ‘‘any
523 N.Y.S.2d 782, 518 N.E.2d 536 [1987],
                                                         white person in this State to marry any
cert. denied 488 U.S. 879, 109 S.Ct. 196,
102 L.Ed.2d 166 [1988]; Rivers v. Katz,                  save a white person, or a person with no
67 N.Y.2d 485, 504 N.Y.S.2d 74, 495                      other admixture of S 371blood than white and
N.E.2d 337 [1986] ). Our Court has not                   American Indian’’ (id. at 5 n. 4, 87 S.Ct.
recognized a fundamental right to marry                  1817), violated the federal Due Process
that departs in any respect from the right               and Equal Protection clauses. The statute
defined by the U.S. Supreme Court in                     made intermarriage in violation of its
cases like Skinner which acknowledged                    terms a felony carrying a potential jail
that marriage is ‘‘fundamental to the very               sentence of one to five years. The Lov-
existence and survival of the [human]                    ings—a white man and a black woman—
race’’ because it is the primary institution             had married in violation of the law and

1.     Eight years after Cooper was decided, the            reasonably related to a legitimate security or
     U.S. Supreme Court strengthened the federal            penological interest and is not an ‘‘exaggerat-
     test for assessing the efficacy of prison regula-      ed response’’ to such interests (see Turner v.
     tions that implicate fundamental rights, re-           Safley, 482 U.S. 78, 90, 107 S.Ct. 2254, 96
     quiring the state to show that the restriction is      L.Ed.2d 64 [1987] ).
16      N. Y.           855 NORTH EASTERN REPORTER, 2d SERIES

been convicted, prompting them to chal-                 and survival’’ (id., citing Skinner, 316 U.S.
lenge the validity of the Virginia law.                 at 541, 62 S.Ct. 1110)—a clear reference to
   The Supreme Court struck the statute                 the link between marriage and procrea-
on both equal protection and due process                tion. It reasoned: ‘‘To deny this funda-
grounds, but the focus of the analysis was              mental freedom on so unsupportable a ba-
on the Equal Protection Clause. Noting                  sis as the racial classifications embodied in
that ‘‘[t]he clear and central purpose of the           these statutes TTT is surely to deprive all
Fourteenth Amendment was to eliminate                   the State’s citizens of liberty without due
all official state sources of invidious racial          process of law’’ (id.). Although the Court
discrimination in the States,’’ the Court               characterized the right to marry as a
applied strict scrutiny review to the racial            ‘‘choice,’’ it did not articulate the broad
classification, finding ‘‘no legitimate over-           ‘‘right to marry the spouse of one’s choice’’
riding purpose independent of invidious ra-             suggested by plaintiffs here. Rather, the
cial discrimination which justifies this clas-          Court observed that ‘‘[t]he Fourteenth
sification’’ (id. at 10, 11, 87 S.Ct. 1817). It         Amendment requires that the freedom of
made clear ‘‘that restricting the freedom to            choice to marry not be restricted by invid-
marry solely because of racial classifica-              ious racial discriminations ’’ (id. [empha-
tions violates the central meaning of the               sis added] ).2 Needless to say, a statutory
Equal Protection Clause’’ (id. at 12, 87                scheme that burdens a fundamental right
S.Ct. 1817). There is no question that the              by making conduct criminal based on the
Court viewed this antimiscegenation stat-               race of the individual who engages in it is
ute as an affront to the very purpose for               inimical to the S 372values embodied in the
the adoption of the Fourteenth Amend-                   state and federal Due Process clauses.
ment—to combat invidious racial discrimi-               Far from recognizing a right to marry
nation.                                                 extending beyond the one woman and one
  In its brief due process analysis, the                man union,3 it is evident from the Loving
Supreme Court reiterated that marriage is               decision that the Supreme Court viewed
a right ‘‘fundamental to our very existence             marriage as fundamental precisely because

2.     Plaintiffs cite Crosby v. State of N.Y., Work-    laws. With the exception of the recent ex-
     ers’ Compensation Bd., 57 N.Y.2d 305, 312,          tension of marriage to same-sex couples by
     456 N.Y.S.2d 680, 442 N.E.2d 1191 (1982)            the Supreme Judicial Court of Massachusetts
     and People v. Shepard, 50 N.Y.2d 640, 644,          (see Opinions of the Justices to the Senate,
     431 N.Y.S.2d 363, 409 N.E.2d 840 (1980) for         440 Mass. 1201, 802 N.E.2d 565 [2004],
     the proposition that the right to marry encom-      clarifying Goodridge, 440 Mass. 309, 798
     passes the unqualified right to marry the           N.E.2d 941), the one element common to
     spouse of one’s choice. But, in resolving           the institution across the nation and despite
     controversies unrelated to the right to marry,      the passage of time has been its definition
     those cases did not analyze the fundamental
                                                         as a union between one man and one wom-
     marriage right but merely cited Loving when
                                                         an. This is how marriage is defined in the
     including marriage in a list of rights that have
                                                         federal Defense of Marriage Act (Pub. L.
     received constitutional protection.
                                                         104–199, 110 U.S. Stat 2419; see 1 USC
3.     Of course, the rights and responsibilities        § 7), which provides that no state ‘‘shall be
     attendant marriage have changed over time           required to give effect to any public act, rec-
     and there have always been differences be-          ord, or judicial proceeding of any other
     tween the states concerning the legal inci-         State TTT respecting a relationship between
     dents of marriage, including differing age          persons of the same sex that is treated as a
     restrictions, consanguinity provisions and,         marriage under the laws of such other
     unfortunately, some states—although not             State’’ (28 USC § 1738C).
     New York—once had antimiscegenation
                                       HERNANDEZ v. ROBLES                                      N. Y.   17
                                        Cite as 855 N.E.2d 1 (N.Y. 2006)

of its relationship to human procreation.4                  ‘‘have more far-reaching consequences,
                                                            touching upon the most private human
   Nor does the Supreme Court’s recent
                                                            conduct, sexual behavior, and in the
federal due process analysis in Lawrence
                                                            most private of places, the home. The
v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156
                                                            statutes do seek to control a personal
L.Ed.2d 508 (2003) support defining the
                                                            relationship that, whether or not entitled
fundamental marriage right in the manner
                                                            to formal recognition in the law, is with-
urged by S 373plaintiffs. In Lawrence, the
                                                            in the liberty of persons to choose with-
Court overruled its prior decision in Bow-                  out being punished as criminals’’ (539
ers v. Hardwick, 478 U.S. 186, 106 S.Ct.                    U.S. at 567, 123 S.Ct. 2472).
2841, 92 L.Ed.2d 140 (1986) and struck as
                                                         Criticizing the historical analysis in Bow-
unconstitutional a Texas statute that crimi-
                                                         ers, it noted that, even though sodomy as
nalized consensual sodomy between adult
                                                         well as other nonprocreative sexual activi-
individuals of the same sex. The holding
                                                         ty had been proscribed, criminal statutes
in Lawrence is consistent with our Court’s
                                                         ‘‘directed at homosexual conduct as a dis-
decision in People v. Onofre, 51 N.Y.2d
                                                         tinct matter’’ (id. at 568, 123 S.Ct. 2472)
476, 434 N.Y.S.2d 947, 415 N.E.2d 936
                                                         were of recent vintage, having developed
(1980), cert. denied 451 U.S. 987, 101 S.Ct.
                                                         in the last third of the 20th century, and
2323, 68 L.Ed.2d 845 (1981), which invali-
                                                         therefore did not possess ‘‘ancient roots’’
dated under a federal due process analysis
                                                         (id. at 570, 123 S.Ct. 2472).
a New York Penal Law provision that
                                                            Consistent with our analysis in Onofre,
criminalized consensual sodomy between
                                                         the Lawrence court held ‘‘that adults may
nonmarried persons.
                                                         choose to enter upon this relationship in
   In Lawrence the Supreme Court did not                 the confines of their homes and their own
create any new fundamental rights, nor did               private lives and still retain their dignity
it employ a strict scrutiny analysis. It                 as free persons’’ (id. at 567, 123 S.Ct. 2472)
acknowledged that laws that criminalize                  because ‘‘liberty gives substantial protec-
sexual conduct between homosexuals                       tion to adult persons in deciding how to

4.     Four years after Loving, the Minnesota Su-           are TTT to be taken as rulings on the merits
     preme Court upheld Minnesota’s marriage                TTT in the sense that they rejected the specific
     laws in the face of a challenge brought by             challenges presented in the statement of juris-
     same-sex couples (Baker v. Nelson, 291 Minn.           diction and left undisturbed the judgment ap-
     310, 191 N.W.2d 185 [1971], appeal dismissed           pealed from’’ (Washington v. Confederated
     409 U.S. 810, 93 S.Ct. 37, 34 L.Ed.2d 65               Bands & Tribes of Yakima Nation, 439 U.S.
     [1972] ). The court rejected the argument              463, 477 n. 20, 99 S.Ct. 740, 58 L.Ed.2d 740
     that the federal Due Process Clause encom-             [1979] [internal quotation marks and citation
     passed a right to marry that extended to               omitted] ) and ‘‘lower courts are bound by
     same-sex couples, noting that in Loving and            summary decisions TTT until such time as the
     its other privacy cases the U.S. Supreme               [Supreme] Court informs (them) that (they)
     Court had recognized that ‘‘[t]he institution of       are not’’ (Hicks v. Miranda, 422 U.S. 332,
     marriage as a union of man and woman,                  344–345, 95 S.Ct. 2281, 45 L.Ed.2d 223
     uniquely involving the procreation and rear-           [1975] [internal quotation marks omitted] ).
     ing of children within a family, is as old as the      Thus, with respect to the federal Due Process
     book of Genesis’’ (291 Minn. at 312, 191               Clause, we must presume that Loving did not
     N.W.2d at 186). The U.S. Supreme Court                 expand the fundamental right to marry in the
     summarily dismissed the appeal ‘‘for want of           manner suggested by plaintiffs in the cases
     a substantial federal question’’ (409 U.S. 810,        before us. This observation does not, howev-
     93 S.Ct. 37, 34 L.Ed.2d 65 [1972] ). Under             er, preclude this Court from interpreting the
     Supreme Court decisional law, as far as lower          New York State Due Process Clause more
     courts are concerned, ‘‘summary dismissals             expansively.
18   N. Y.          855 NORTH EASTERN REPORTER, 2d SERIES

conduct their private lives in matters per-       Equal Protection:
taining to sex’’ (id. at 572, 123 S.Ct. 2472).       Plaintiffs contend that, even if strict
It reasoned that ‘‘moral disapproval’’—the        scrutiny analysis is not appropriate under
only justification Texas proffered for its        the Due Process Clause, a heightened
law—is never an adequate basis for a              standard of review is nonetheless mandat-
criminal statute, a conclusion similar to         ed under the Equal Protection Clause be-
this Court’s observation in Onofre that ‘‘it      cause New York’s marriage laws create
is not the function of the Penal Law in our       gender and sexual orientation classifica-
governmental policy to provide either a           tions that require a more rigorous level of
medium for the articulation or the appara-        analysis than rational basis review.
tus for the intended enforcement of moral           The Equal Protection Clause, added to
or theological values’’ (51 N.Y.2d at 488 n.      the New York Constitution in 1938, pro-
3, 434 N.Y.S.2d 947, 415 N.E.2d 936).             vides:
Thus, in striking the sodomy law, the Su-           ‘‘No person shall be denied the equal
preme Court found that ‘‘[t]he Texas stat-          protection of the laws of this state or
ute furthers no legitimate state interest           any subdivision thereof. No person
which can justify its intrusion into the            shall, because of race, color, creed or
personal and private life of the individual’’       religion, be subjected to any discrimina-
(Lawrence, 539 U.S. at 578, 123 S.Ct.               tion in his or her civil rights by any
2472).                                              other person or by any firm, corpora-
                                                    tion, or institution, or by the state or
   S 374The right affirmed by the Supreme
                                                    any agency or subdivision of the state’’
Court in Lawrence is not comparable to
                                                    (N.Y. Const., art. I, § 11).
the new right to marry plaintiffs assert
here, nor is the Texas statute criminalizing      Soon after the adoption of this provision,
homosexual sodomy analogous to the mar-           this Court recognized that it was modeled
riage statutes under review. The Domes-           after its federal counterpart and ‘‘embod-
tic Relations Law is not a penal provision        ies’’ the federal equal protection command
and New York has not attempted to regu-           (Dorsey v. Stuyvesant Town Corp., 299
late plaintiffs’ private sexual conduct or        N.Y. 512, 530, 87 N.E.2d 541 [1949], cert.
disturb the sanctity of their homes. And,         denied 339 U.S. 981, 70 S.Ct. 1019, 94
in contrast to the Texas statute, New             L.Ed. 1385 [1950]; see also, Under 21,
York’s marriage laws are part of a long-          Catholic Home Bur. for Dependent Chil-
standing tradition with roots dating back         dren v. City of New York, 65 N.Y.2d 344,
long before the adoption of our State Con-        360 n. 6, 492 N.Y.S.2d 522, 482 N.E.2d 1
stitution.                                        [1985] [‘‘the State constitutional equal pro-
                                                  tection clause TTT is no broader in cover-
   New York’s Due Process Clause simply           age than the Federal provision’’] ). Ac-
does not encompass a fundamental right to         cordingly, this Court has consistently cited
marry the spouse of one’s choice outside          federal cases and applied federal
the one woman/one man construct. Strict           S 375analysis to resolve equal protection
scrutiny review of the Domestic Relations          claims brought under the federal and state
Law is therefore not warranted and, inso-          constitutions (see e.g. Matter of Aliessa v.
far as due process analysis is concerned,          Novello, 96 N.Y.2d 418, 730 N.Y.S.2d 1,
the statutory scheme must be upheld un-            754 N.E.2d 1085 [2001]; People v. Liberta,
less plaintiffs prove that it is not rationally    64 N.Y.2d 152, 485 N.Y.S.2d 207, 474
related to any legitimate state interest.          N.E.2d 567 [1984], cert. denied 471 U.S.
                                 HERNANDEZ v. ROBLES                                 N. Y.   19
                                  Cite as 855 N.E.2d 1 (N.Y. 2006)

1020, 105 S.Ct. 2029, 85 L.Ed.2d 310               ry a person of the same sex and both can
[1985] ).                                          marry persons of the opposite sex.
   The Equal Protection Clause ‘‘is essen-            Respondents’ interpretation more close-
tially a direction that all persons similarly      ly comports with the analytical framework
situated should be treated alike’’ (Cleburne       for gender discrimination applied by this
v. Cleburne Living Center, Inc., 473 U.S.          Court and the Supreme Court. The prece-
432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313           dent establishes that gender discrimination
[1985] ). Both the U.S. Supreme Court              occurs when men and women are not
and this Court have applied three levels of        treated equally and one gender is benefit-
review     to    legislative   classifications.    ted or burdened as opposed to the other.
‘‘[W]hen a statute classifies by race, alien-      For example, in Liberta, 64 N.Y.2d 152,
age, or national origin’’ (id. at 440, 105         485 N.Y.S.2d 207, 474 N.E.2d 567, we held
S.Ct. 3249), or when it burdens a funda-           that the Penal Law’s restriction of the
mental right protected under the Due Pro-          crime of forcible rape to male offenders
cess Clause, it is subjected to strict scruti-     constituted gender discrimination and the
ny meaning that it will be sustained only if       restriction was struck on the basis that it
it is narrowly tailored to serve a compel-         failed to meet the intermediate scrutiny
ling state interest (see Golden v. Clark, 76       standard. Men and women were not
N.Y.2d 618, 623, 563 N.Y.S.2d 1, 564               treated equally because only men could be
N.E.2d 611 [1990] ). Classifications based         convicted of forcible rape; women who
on gender or illegitimacy are reviewed un-         engaged in precisely the same conduct
der an intermediate level of scrutiny—             could S 376not be charged or convicted of the
meaning they will be sustained if ‘‘substan-       same offense. Similarly, in Mississippi
tially related to the achievement of an            Univ. for Women v. Hogan, 458 U.S. 718,
important governmental objective’’ (Liber-         102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982), the
ta, 64 N.Y.2d at 168, 485 N.Y.S.2d 207, 474        Supreme Court found that a publically-
N.E.2d 567; Clark v. Jeter, 486 U.S. 456,          funded state university that refused to al-
108 S.Ct. 1910, 100 L.Ed.2d 465 [1988] ).          low men admission to its nursing program
Neither the Supreme Court nor this Court           had engaged in gender discrimination.
has recognized any other classifications as        The university improperly privileged fe-
triggering heightened scrutiny and, there-         male students by allowing them a benefit
fore, all other statutory distinctions have        not available to similarly-situated male ap-
been sustained if rationally related to a          plicants. Likewise, in J.E.B. v. Alabama
legitimate government interest (see e.g.           ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419,
Golden, 76 N.Y.2d 618, 563 N.Y.S.2d 1, 564         128 L.Ed.2d 89 (1994), a prosecutor was
N.E.2d 611).                                       determined to have engaged in gender dis-
   Plaintiffs argue that the Domestic Rela-        crimination when he exercised 9 of his 10
tions Law creates a classification based on        peremptory challenges to strike males
gender that requires intermediate scrutiny         from the venire panel resulting in an all-
because a woman cannot marry another               female jury. There, the prosecutor did not
woman due to her gender and a man can-             apply jury selection criteria equally among
not marry another man due to his gender.           males and females—he used almost all of
Respondents counter that the marriage              his challenges to exclude men from the
laws are neutral insofar as gender is con-         jury.
cerned because they treat all males and              Plaintiffs cite Loving for the proposition
females equally—neither gender can mar-            that a statute can discriminate even if it
20      N. Y.         855 NORTH EASTERN REPORTER, 2d SERIES

treats both classes identically. This mis-          Equity v. State of New York, 86 N.Y.2d
construes the Loving analysis because the           307, 321, 631 N.Y.S.2d 565, 655 N.E.2d 661
antimiscegenation statute did not treat             [1995]; People v. New York City Tr. Auth.,
blacks and whites identically—it restricted         59 N.Y.2d 343, 350, 465 N.Y.S.2d 502, 452
who whites could marry (but did not re-             N.E.2d 316 [1983]; Washington v. Davis,
strict intermarriage between non-whites)            426 U.S. 229, 240, 96 S.Ct. 2040, 48
for the purpose of promoting white su-              L.Ed.2d 597 [1976] ). Plaintiffs concede
premacy.     Virginia’s antimiscegenation           that the Domestic Relations Law was not
statute was the quintessential example of           enacted with an invidiously discriminatory
invidious racial discrimination as it was           intent—the Legislature did not craft the
intended to advantage one race and disad-           marriage laws for the purpose of disadvan-
vantage all others, which is why the Su-            taging gays and lesbians (cf. Romer v.
preme Court applied strict scrutiny and             Evans, 517 U.S. 620, 116 S.Ct. 1620, 134
struck it down as violating the core inter-         L.Ed.2d 855 [1996] ). Hence, there is no
est of the Equal Protection Clause.                 basis to address plaintiffs’ argument that
   In contrast, neither men nor women are           classifications based on sexual orientation
disproportionately disadvantaged or bur-            should be subjected to intermediate scruti-
dened by the fact that New York’s Domes-            ny.
tic Relations Law allows only opposite-sex          Rational Basis Review:
couples to marry—both genders are treat-               Thus, under both the Due Process and
ed precisely the same way. As such, there           Equal Protection clauses, these cases turn
is no gender classification triggering inter-       on whether the Legislature’s decision to
mediate scrutiny.                                   confine the institution of marriage to cou-
   Nor does the statutory scheme create a           ples composed of one woman and one man
classification based on sexual orientation.         is rationally related to any legitimate state
In this respect, the Domestic Relations             interest. In Affronti v. Crosson, 95
Law is facially neutral: individuals who            N.Y.2d 713, 719, 723 N.Y.S.2d 757, 746
seek marriage licenses are not queried              N.E.2d 1049 (2001), cert. denied sub nom.
concerning their sexual orientation and are         Affronti v. Lippman, 534 U.S. 826, 122
not precluded from marrying if they are             S.Ct. 66, 151 L.Ed.2d 32 (2001), we ex-
not heterosexual. Regardless of sexual or-          plained that
ientation, any person can marry a person               ‘‘[t]he rational basis standard of review
of the opposite sex. Certainly, the mar-               is a paradigm of judicial restraint. On
riage laws create a classification that dis-           rational basis review, a statute will be
tinguishes between opposite-sex and same-              upheld unless the disparate treatment is
sex couples and this has a disparate impact            so unrelated to the achievement of any
on gays and lesbians. However, a claim                 combination of legitimate purposes that
that a facially-neutral statute enacted with-          it is irrational. Since the challenged
out an invidious discriminatory intent has             statute is presumed to be valid, the bur-
a disparate impact on a class (even a sus-             den is on the one attacking the legisla-
pect class, such as one defined by race) is            tive arrangement to negative every con-
insufficient S 377to establish an equal protec-        ceivable basis which might support it
tion violation 5 (see Campaign for Fiscal              TTT whether or not the basis has a foun-

5.     Such disparate impact claims are usually      Human Rights Law (see e.g. Levin v. Yeshiva
     brought under civil rights statutes that au-    Univ., 96 N.Y.2d 484, 730 N.Y.S.2d 15, 754
     thorize them, such as the New York City         N.E.2d 1099 [2001] ).
                               HERNANDEZ v. ROBLES                                  N. Y.   21
                                 Cite as 855 N.E.2d 1 (N.Y. 2006)

  dation in the record. Thus, those chal-         here we are concerned with the State’s
  lenging the legislative judgment must           interest in promoting the institution of
  convince the court that the legislative         marriage.
  facts on which the classification is appar-       As Justice Robert Cordy pointed out in
  ently based could not reasonably be con-        his dissent in Goodridge v. Department of
  ceived to be true by the governmental           Pub. Health, 440 Mass. at 381–382, 798
  decisionmaker.’’    (Internal quotation         N.E.2d at 995 [Cordy, J., dissenting]:
  marks, citations, brackets and emphasis           ‘‘Civil marriage is the institutional mech-
  omitted.)                                         anism by which societies have sanc-
Especially in the realm of social or eco-           tioned and recognized particular family
nomic legislation, ‘‘the Equal Protection           structures, and the institution of mar-
Clause allows the States wide latitude TTT          riage has existed as one of the funda-
and the Constitution presumes that even             mental organizing principles of human
improvident decisions will eventually be            societyTTTT Paramount among its many
rectified by the democratic processes’’             important functions, the institution of
S 378(Cleburne, 473 U.S. at 440, 105 S.Ct.          marriage has systematically provided for
 3249; see generally Lovelace v. Gross, 80          the regulation of heterosexual behavior,
 N.Y.2d 419, 427, 590 N.Y.S.2d 852, 605             brought order to the resulting procrea-
 N.E.2d 339 [1992] ).                               tion, and ensured a stable family struc-
   In these cases, respondents articulate a         ture in which children will be reared,
number of interests that they claim are             educated, and socializedTTTT [A]n order-
legitimate and are advanced by the current          ly society requires some mechanism for
definition of marriage. Given the ex-               coping with the fact that sexual inter-
tremely deferential standard of review,             course [between a man and a woman]
plaintiffs cannot prevail unless they estab-        commonly results in pregnancy and
lish that no conceivable legitimate interest        childbirth. The institution of marriage
is served by the statutory scheme. This             is that mechanism.’’
means that if this Court finds a rational           Since marriage was instituted to ad-
connection between the classification and         dress the fact that sexual contact be-
any single governmental concern, the mar-         tween a man and a woman naturally can
riage laws survive review under both the          result in S 379pregnancy and childbirth,
Due Process and Equal Protection clauses.         the Legislature’s decision to focus on op-
   As set forth in the plurality opinion,         posite-sex couples is understandable. It
plaintiffs have failed to negate respon-          is not irrational for the Legislature to
dents’ explanation that the current defini-       provide an incentive for opposite-sex
tion of marriage is rationally related to the     couples—for whom children may be con-
State’s legitimate interest in channeling         ceived from casual, even momentary inti-
opposite-sex relationships into marriage          mate relationships—to marry, create a
because of the natural propensity of sexual       family environment, and support their
contact between opposite-sex couples to           children. Although many same-sex cou-
result in pregnancy and childbirth. Of            ples share these family objectives and
course, marriage can and does serve indi-         are competently raising children in a
vidual interests that extend well beyond          stable environment, they are simply not
creating an environment conducive to pro-         similarly situated to opposite-sex couples
creation and child-rearing, such as com-          in this regard given the intrinsic differ-
panionship and emotional fulfillment. But         ences in the assisted reproduction or
22   N. Y.         855 NORTH EASTERN REPORTER, 2d SERIES

adoption processes that most homosexual         to do so rests with our elected representa-
couples rely on to have children.               tives.

   As respondents concede, the marriage           S 380Chief Judge KAYE (dissenting).
classification is imperfect and could be
                                                  Plaintiffs (including petitioners) are 44
viewed in some respects as overinclusive
                                                same-sex couples who wish to marry.
or underinclusive since not all opposite-sex    They include a doctor, a police officer, a
couples procreate, opposite-sex couples         public school teacher, a nurse, an artist
who cannot procreate may marry, and op-         and a state legislator. Ranging in age
posite-sex partners can and do procreate        from under 30 to 68, plaintiffs reflect a
outside of marriage. It is also true that       diversity of races, religions and ethnicities.
children being raised in same-sex house-        They come from upstate and down, from
holds would derive economic and social          rural, urban and suburban settings. Many
benefits if their parents could marry. But      have been together in committed relation-
under rational basis review, the classifica-    ships for decades, and many are raising
tion need not be perfectly precise or nar-      children—from toddlers to teenagers.
rowly tailored—all that is required is a        Many are active in their communities,
reasonable connection between the classifi-     serving on their local school board, for
cation and the interest at issue. In light of   example, or their cooperative apartment
the history and purpose of the institution      building board. In short, plaintiffs repre-
of marriage, the marriage classification in     sent a cross-section of New Yorkers who
the Domestic Relations Law meets that           want only to live full lives, raise their
test.                                           children, better their communities and be
                                                good neighbors.
   The Legislature has granted the bene-
fits (and responsibilities) of marriage to         For most of us, leading a full life in-
the class—opposite-sex couples—that it          cludes establishing a family. Indeed, most
concluded most required the privileges and      New Yorkers can look back on, or forward
burdens the institution entails due to in-      to, their wedding as among the most sig-
herent procreative capabilities. This type      nificant events of their lives. They, like
of determination is a central legislative       plaintiffs, grew up hoping to find that one
function and lawmakers are afforded lee-        person with whom they would share their
way in fulfilling this function, especially     future, eager to express their mutual life-
with respect to economic and social legisla-    time pledge through civil marriage. Solely
tion where issues are often addressed in-       because of their sexual orientation, howev-
crementally (see FCC v. Beach Communi-          er—that is, because of who they love—
cations, Inc., 508 U.S. 307, 315–316, 113       plaintiffs are denied the rights and respon-
S.Ct. 2096, 124 L.Ed.2d 211 [1993] ). It        sibilities of civil marriage. This State has
may well be that the time has come for the      a proud tradition of affording equal rights
Legislature to address the needs of same-       to all New Yorkers. Sadly, the Court
sex couples and their families, and to con-     today retreats from that proud tradition.
sider granting these individuals additional                   I. Due Process
benefits through marriage or whatever             Under both the state and federal consti-
status the Legislature deems appropriate.       tutions, the right to due process of law
Because the New York Constitution does          protects certain fundamental liberty inter-
not compel such a revision of the Domestic      ests, including the right to marry. Central
Relations Law, the decision whether or not      to the right to marry is the right to marry
                               HERNANDEZ v. ROBLES                                  N. Y.   23
                                 Cite as 855 N.E.2d 1 (N.Y. 2006)

the person of one’s choice (see e.g. Crosby       tradition, and thus cannot implicate any
v. State of N.Y., Workers’ Compensation           fundamental liberty. But fundamental
Bd., 57 N.Y.2d 305, 312, 456 N.Y.S.2d 680,        rights, once recognized, cannot be denied
442 N.E.2d 1191 [1982] [‘‘clearly falling         to particular groups on the ground that
within (the right of privacy) are matters         these groups have historically been denied
relating to the decision of whom one will         those rights. Indeed, in recasting plain-
marry’’]; People v. Shepard, 50 N.Y.2d            tiffs’ invocation of their fundamental right
640, 644, 431 N.Y.S.2d 363, 409 N.E.2d 840        to marry as a request for recognition of a
[1980] [‘‘the government has been prevent-        ‘‘new’’ right to same-sex marriage, the
ed from interfering with an individual’s          Court misapprehends the nature of the
decision about whom to marry’’] ). The            liberty interest at stake. In Lawrence v.
deprivation of a fundamental right is sub-        Texas, 539 U.S. 558, 123 S.Ct. 2472, 156
ject to strict scrutiny and requires that the     L.Ed.2d 508 (2003), the Supreme Court
infringement be narrowly tailored to              warned against such error.
achieve a compelling state interest (see e.g.        Lawrence overruled Bowers v. Hard-
Carey v. Population Services Int’l, 431           wick, 478 U.S. 186, 106 S.Ct. 2841, 92
U.S. 678, 686, 97 S.Ct. 2010, 52 L.Ed.2d          L.Ed.2d 140 (1986), which had upheld a
675 [1977] ).                                     Georgia statute criminalizing sodomy. In
    Fundamental rights are those ‘‘which          so doing, the Lawrence court criticized
are, objectively, deeply rooted in this Na-       Bowers for framing the issue presented
tion’s history and tradition TTT and implicit     too narrowly. Declaring that ‘‘Bowers was
in the concept of ordered liberty, such that      not correct when it was decided, and it is
neither liberty nor justice would exist if        not correct today’’ (539 U.S. at 578, 123
they were sacrificed’’ (Washington v.             S.Ct. 2472), Lawrence explained that Bow-
S 381Glucksberg, 521 U.S. 702, 720–721, 117       ers purported to analyze—erroneously—
 S.Ct. 2258, 138 L.Ed.2d 772 [1997] [inter-       whether the Constitution conferred a ‘‘fun-
 nal quotation marks and citations omit-          damental right upon homosexuals to en-
 ted] ). Again and again, the Supreme             gage in sodomy’’ (539 U.S. at 566, 123
 Court and this Court have made clear that        S.Ct. 2472 [citation omitted] ). This was,
 the right to marry is fundamental (see e.g.      however, the wrong question. The funda-
 Loving v. Virginia, 388 U.S. 1, 87 S.Ct.         mental right at issue, properly framed,
 1817, 18 L.Ed.2d 1010 [1967]; Zablocki v.        was the right to engage in private consen-
 Redhail, 434 U.S. 374, 98 S.Ct. 673, 54          sual sexual conduct—a right that applied
 L.Ed.2d 618 [1978]; Turner v. Safley, 482        to both homosexuals and heterosexuals
 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64           alike. In narrowing the claimed liberty
 [1987]; Matter of Doe v. Coughlin, 71            interest to embody the very exclusion be-
 N.Y.2d 48, 52, 523 N.Y.S.2d 782, 518             ing challenged, Bowers ‘‘disclose[d] the
 N.E.2d 536 [1987]; Cooper v. Morin, 49           Court’s own failure to appreciate the ex-
 N.Y.2d 69, 80, 424 N.Y.S.2d 168, 399             tent of the liberty at stake’’ (Lawrence, 539
 N.E.2d 1188 [1979]; Levin v. Yeshiva             U.S. at 567, 123 S.Ct. 2472).
 Univ., 96 N.Y.2d 484, 500, 730 N.Y.S.2d 15,        The same failure is evident here. An
 754 N.E.2d 1099 [2001] [G.B. Smith, J.,          asserted liberty interest is not to be char-
 concurring] [‘‘marriage is a fundamental         acterized so narrowly as to make inevitable
 constitutional right’’] ).                       the conclusion that the claimed right could
  The Court concludes, however, that              not be fundamental because historically it
same-sex marriage is not deeply rooted in         has been denied to those who now seek to
24      N. Y.           855 NORTH EASTERN REPORTER, 2d SERIES

exercise it (see Planned Parenthood of                   3249, 87 L.Ed.2d 313 [1985] [Marshall, J.,
Southeastern Pa. v. Casey, 505 U.S. 833,                 concurring in the judgment in part and
847, 112 S.Ct. 2791, 120 L.Ed.2d 674 [1992]              dissenting in part] [‘‘what once was a ‘nat-
[it is ‘‘tempting TTT to suppose that the                ural’ and ‘self-evident’ ordering later
Due Process Clause protects only those                   comes to be seen as an artificial and invidi-
practices, defined at the most specific lev-             ous constraint on human potential and
el, that were protected against government               freedom’’] ).
S 382interference by other rules of law when
                                                           Simply put, fundamental rights are fun-
 the Fourteenth Amendment was rati-
                                                         damental rights. They are not defined in
 fiedTTTT But such a view would be incon-
                                                         terms of who is entitled to exercise them.
 sistent with our law’’] ).
                                                            Instead, the Supreme Court has re-
   Notably, the result in Lawrence was not
                                                         peatedly held that the fundamental right
affected by the fact, acknowledged by the
                                                         to marry must be afforded even to those
Court, that there had been no long history
of tolerance for homosexuality. Rather, in               who have previously been excluded from
holding that ‘‘[p]ersons in a homosexual                 its scope—that is, to those whose exclu-
relationship may seek autonomy for the[ ]                sion from the right was ‘‘deeply rooted.’’ 1
purpose[ of making intimate and personal                 Well into the twentieth century, the sheer
choices], just as heterosexual persons do’’              weight of precedent accepting the constitu-
(539 U.S. at 574, 123 S.Ct. 2472), Lawrence              tionality of bans on interracial marriage
rejected the notion that fundamental                     was deemed sufficient justification in and
rights it had already identified could be                of itself to perpetuate these discriminatory
restricted based on traditional assump-                  laws (see e.g. Jones v. Lorenzen, 441 P.2d
tions about who should be permitted their                986, 989 S 383[Okla. 1965] [upholding antimis-
protection. As the Court noted, ‘‘times                  cegenation law since the ‘‘great weight of
can blind us to certain truths and later                 authority holds such statutes constitution-
generations can see that laws once thought               al’’] )—much as defendants now contend
necessary and proper in fact serve only to               that same-sex couples should be prohibited
oppress. As the Constitution endures,                    from marrying because historically they
persons in every generation can invoke its               always have been.
principles in their own search for greater                  Just 10 years before Loving declared
freedom’’ (Lawrence, 539 U.S. at 579, 123                unconstitutional state laws banning mar-
S.Ct. 2472; see also id. at 572, 123 S.Ct.               riage between persons of different races,
2472 [‘‘(h)istory and tradition are the start-           96% of Americans were opposed to interra-
ing point but not in all cases the ending                cial marriage (see brief of NAACP Legal
point of the substantive due process inqui-              Defense and Educational Fund, Inc., as
ry’’ (internal quotation marks and citation              amicus curiae in support of plaintiffs, at 5).
omitted) ]; Cleburne v. Cleburne Living                  Sadly, many of the arguments then raised
Center, Inc., 473 U.S. 432, 466, 105 S.Ct.               in support of the antimiscegenation laws

1.     In other contexts, this Court has also recog-       spite a long history of excluding unwed fa-
     nized that due process rights must be afforded        thers from that right]; Rivers v. Katz, 67
     to all, even as against a history of exclusion of     N.Y.2d 485, 495–496, 504 N.Y.S.2d 74, 495
     one group or another from past exercise of            N.E.2d 337 [1986] [affording the right to re-
     these rights (see e.g. Matter of Raquel Marie X.,     fuse medical treatment to the mentally dis-
     76 N.Y.2d 387, 397, 559 N.Y.S.2d 855, 559             abled, despite a long history of excluding the
     N.E.2d 418 [1990] [affording the right to cus-        mentally ill from that right] ).
     tody of one’s children to unwed fathers, de-
                                HERNANDEZ v. ROBLES                                   N. Y.   25
                                  Cite as 855 N.E.2d 1 (N.Y. 2006)

were identical to those made today in op-             ‘‘could have rested solely on the ground
position to same-sex marriage (see e.g.               that the S 384statutes discriminated on the
Kinney v. Commonwealth, 71 Va. [30                    basis of race in violation of the Equal
Gratt] 858, 869 [1878] [marriage between              Protection Clause. But the Court went
the races is ‘‘unnatural’’ and a violation of         on to hold that laws arbitrarily deprived
God’s will]; Pace v. State, 69 Ala. 231, 232          the couple of a fundamental liberty pro-
[1881] [‘‘amalgamation’’ of the races would           tected by the Due Process Clause, the
produce a ‘‘degraded civilization’’]; see             freedom to marryTTTT
also Lonas v. State, 50 Tenn. [3 Heisk]               ‘‘Although Loving arose in the context of
287, 310 [1871] [‘‘(t)he laws of civilization         racial discrimination, prior and subse-
demand that the races be kept apart’’] ).             quent decisions of this Court confirm
                                                      that the right to marry is of fundamen-
   To those who appealed to history as a              tal importance for all individuals’’ (434
basis for prohibiting interracial marriage,           U.S. at 383–384, 98 S.Ct. 673 [citation
it was simply inconceivable that the right            omitted] ).
of interracial couples to marry could be
                                                   Similarly, in Turner, 482 U.S. 78, 107 S.Ct.
deemed ‘‘fundamental.’’ Incredible as it
                                                   2254 (1987), the Supreme Court deter-
may seem today, during the lifetime of
                                                   mined that the right to marry was so
every Judge on this Court, interracial mar-
                                                   fundamental that it could not be denied to
riage was forbidden in at least a third of
                                                   prison inmates (see also Boddie v. Con-
American jurisdictions. In 1948, New
                                                   necticut, 401 U.S. 371, 91 S.Ct. 780, 28
York was one of only 18 states in the
                                                   L.Ed.2d 113 [1971] [state requirement that
nation that did not have such a ban. By
                                                   indigent individuals pay court fees to ob-
1967, when Loving was decided, 16 states
                                                   tain divorce unconstitutionally burdened
still outlawed marriages between persons
                                                   fundamental right to marry] ).
of different races. Nevertheless, even
                                                     Under our Constitution, discriminatory
though it was the ban on interracial mar-
                                                   views about proper marriage partners can
riage—not interracial marriage itself—that
                                                   no more prevent same-sex couples from
had a long and shameful national tradition,
                                                   marrying than they could different-race
the Supreme Court determined that inter-
                                                   couples. Nor can ‘‘deeply rooted’’ preju-
racial couples could not be deprived of
                                                   dices uphold the infringement of a funda-
their fundamental right to marry.
                                                   mental right (see People v. Onofre, 51
   Unconstitutional infringements on the           N.Y.2d 476, 490, 434 N.Y.S.2d 947, 415
right to marry are not limited to impermis-        N.E.2d 936 [1980] [‘‘disapproval by a ma-
sible racial restrictions. Inasmuch as the         jority of the populace TTT may not substi-
fundamental right to marry is shared by            tute for the required demonstration of a
‘‘all the State’s citizens’’ (Loving, 388 U.S.     valid basis for intrusion by the State in an
at 12, 87 S.Ct. 1817), the State may not, for      area of important personal decision’’] ).
example, require individuals with child            For these reasons, the NAACP Legal De-
support obligations to obtain court approv-        fense and Educational Fund, as amicus,
al before getting married (see Zablocki,           contends that
434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618            ‘‘[a]lthough the historical experiences in
[1978] ). Calling Loving the ‘‘leading deci-          this country of African Americans, on
sion of this Court on the right to marry,’’           the one hand, and gay men and lesbians,
Justice Marshall made clear in Zablocki               on the other, are in many important
that Loving                                           ways quite different, the legal questions
26      N. Y.          855 NORTH EASTERN REPORTER, 2d SERIES

     raised here and in Loving are analogous.        fined by the doctrine of coverture, accord-
     The state law at issue here, like the law       ing to which the wife’s legal identity was
     struck down in Loving, restricts an indi-       merged into that of her husband, whose
     vidual’s right to marry the person of his       property she became. A married woman,
     or her choice. We respectfully submit           by definition, could not own property and
     that the decisions below must be re-            could not enter into contracts.2 Such was
     versed if this Court follows the reason-        the very ‘‘meaning’’ of marriage. Only
     ing of the United States Supreme                since the mid-twentieth century has the
     Court’s decision in Loving ’’ (brief of         institution of marriage come to be under-
     NAACP Legal Defense and Educational             stood as a relationship between two equal
     Fund, Inc., as amicus curiae in support         partners, founded upon shared intimacy
     of plaintiffs, at 3–4; see also brief of        and mutual financial and emotional sup-
     New York County Lawyers’ Association            port. Indeed, as amici professors note,
     and National Black Justice Coalition, as        ‘‘The historical record shows that, through
     amici curiae in support of plaintiffs [de-      adjudication and legislation, all of New
     tailing history of antimiscegenation laws       York’s sex-specific rules for marriage have
     and public attitudes toward interracial         been invalidated save for the one at issue
     marriage] ).                                    here.’’
   S 385It is no answer that same-sex couples
                                                        That restrictions on same-sex marriage
can be excluded from marriage because
                                                     are prevalent cannot in itself justify their
‘‘marriage,’’ by definition, does not include
                                                     retention. After all, widespread public op-
them. In the end, ‘‘an argument that mar-
                                                     position to interracial marriage in the
riage is heterosexual because it ‘just is’
                                                     years before Loving could not sustain the
amounts to circular reasoning’’ (Halpern v.
                                                     antimiscegenation laws. ‘‘[T]he fact that
Attorney Gen. of Can., 65 OR3d 161, 172
                                                     the governing majority in a State has tra-
OAC 276, ¶ 71 [2003] ). ‘‘To define the
                                                     ditionally viewed a particular practice as
institution of marriage by the characteris-
                                                     immoral is not a sufficient reason for up-
tics of those to whom it always has been
                                                     holding a law prohibiting the practice’’
accessible, in order to justify the exclusion
                                                     (Lawrence, 539 U.S. at 577–578, 123 S.Ct.
of those to whom it never has been accessi-
                                                     2472 [internal quotation marks and citation
ble, is conclusory and bypasses the core
                                                     omitted]; see also id. at 571, 123 S.Ct.
question we are asked to decide’’ (Goo-
                                                     2472 [fundamental right to engage in pri-
dridge v. Department of Pub. Health, 440
                                                     vate consensual sexual conduct extends to
Mass. 309, 348, 798 N.E.2d 941, 972–973
                                                     homosexuals, notwithstanding that ‘‘for
[2003] [Greaney, J., concurring] ).
                                                     centuries there have been powerful voices
   The claim that marriage has always had            to condemn homoSsexual386 conduct as im-
a single and unalterable meaning is a plain          moral’’] ). The long duration of a constitu-
distortion of history. In truth, the com-            tional wrong cannot justify its perpetua-
mon understanding of ‘‘marriage’’ has                tion, no matter how strongly tradition or
changed dramatically over the centuries              public sentiment might support it.
(see brief of Professors of History and
                                                               II. Equal Protection
Family Law, as amici curiae in support of
plaintiffs). Until well into the nineteenth            By virtue of their being denied entry
century, for example, marriage was de-               into civil marriage, plaintiff couples are

2.     Moreover, until as recently as 1984, a hus-    wife (see People v. Liberta, 64 N.Y.2d 152, 485
     band could not be prosecuted for raping his      N.Y.S.2d 207, 474 N.E.2d 567 [1984] ).
                                  HERNANDEZ v. ROBLES                                   N. Y.   27
                                   Cite as 855 N.E.2d 1 (N.Y. 2006)

deprived of a number of statutory benefits          synonymously, ‘‘marriage between persons
and protections extended to married cou-            of the same sex is prohibited.’’
ples under New York law. Unlike married
                                                      On three independent grounds, this dis-
spouses, same-sex partners may be denied
                                                    criminatory classification is subject to
hospital visitation of their critically ill life
                                                    heightened scrutiny, a test that defendants
partners. They must spend more of their
                                                    concede it cannot pass.
joint income to obtain equivalent levels of
health care coverage. They may, upon the                      S 387A.   Heightened Scrutiny
death of their partners, find themselves at
                                                       1.    Sexual Orientation Discrimination
risk of losing the family home. The record
is replete with examples of the hundreds of           Homosexuals meet the constitutional
ways in which committed same-sex couples            definition of a suspect class, that is, a
and their children are deprived of equal            group whose defining characteristic is ‘‘so
benefits under New York law. Same-sex               seldom relevant to the achievement of any
families are, among other things, denied            legitimate state interest that laws ground-
equal treatment with respect to intestacy,          ed in such considerations are deemed to
inheritance, tenancy by the entirety, taxes,        reflect prejudice and antipathy—a view
insurance, health benefits, medical deci-           that those in the burdened class are not as
sionmaking, workers’ compensation, the              worthy or deserving as others’’ (Cleburne,
right to sue for wrongful death and spous-          473 U.S. at 440, 105 S.Ct. 3249). Accord-
al privilege. Each of these statutory ineq-         ingly, any classification discriminating on
uities, as well as the discriminatory exclu-        the basis of sexual orientation must be
sion of same-sex couples from the benefits          narrowly tailored to meet a compelling
and protections of civil marriage as a              state interest (see e.g. Alevy v. Downstate
whole, violates their constitutional right to       Med. Ctr. of State of N.Y., 39 N.Y.2d 326,
equal protection of the laws.                       332, 384 N.Y.S.2d 82, 348 N.E.2d 537
   Correctly framed, the question before us         [1976]; Matter of Aliessa v. Novello, 96
is not whether the marriage statutes prop-          N.Y.2d 418, 431, 730 N.Y.S.2d 1, 754
erly benefit those they are intended to             N.E.2d 1085 [2001] ).
benefit—any discriminatory classification              ‘‘No single talisman can define those
does that—but whether there exists any
                                                    groups likely to be the target of classifica-
legitimate basis for excluding those who
                                                    tions offensive to the Fourteenth Amend-
are not covered by the law. That the
                                                    ment and therefore warranting heightened
language of the licensing statute does not
                                                    or strict scrutiny’’ (Cleburne, 473 U.S. at
expressly reference the implicit exclusion
                                                    472 n. 24, 105 S.Ct. 3249 [Marshall, J.,
of same-sex couples is of no moment (see
                                                    concurring in the judgment in part and
Domestic Relations Law § 13 [‘‘persons
                                                    dissenting in part] ). Rather, such scruti-
intended to be married’’ must obtain a
                                                    ny is to be applied when analyzing legisla-
marriage license] ). The Court has, proper-
                                                    tive classifications involving groups who
ly, construed the statutory scheme as pro-
                                                    ‘‘may well be the target of the sort of
hibiting same-sex marriage. That being
                                                    prejudiced, thoughtless, or stereotyped ac-
so, the statute, in practical effect, becomes
                                                    tion that offends principles of equality
identical to—and, for purposes of equal
                                                    found in’’ the Constitution (id. at 472, 105
protection analysis, must be analyzed as if
                                                    S.Ct. 3249).
it were—one explicitly providing that ‘‘civil
marriage is hereby established for couples            Although no single factor is dispositive,
consisting of a man and a woman,’’ or,              the Supreme Court has generally looked to
28   N. Y.         855 NORTH EASTERN REPORTER, 2d SERIES

three criteria in determining whether a             Third, the Court has taken into account
group subject to legislative classification      the group’s relative political powerless-
must be considered ‘‘suspect.’’ First, the       ness. Defendants contend that classifica-
Court has considered whether the group           tions based on sexual orientation should
has historically been subjected to purpose-      not be afforded heightened scrutiny be-
ful discrimination. Homosexuals plainly          cause, they claim, homosexuals are suffi-
have been, as the Legislature expressly          ciently able to achieve protection from dis-
found when it recently enacted the Sexual        crimination through the political process,
Orientation Non–Discrimination Act (SON-         as evidenced by the Legislature’s passage
DA), barring discrimination against homo-        of SONDA in 2002. SONDA, however,
sexuals in employment, housing, public ac-       was first introduced in 1971. It failed
commodations, education, credit and the          repeatedly for 31 years, until it was finally
exercise of civil rights. Specifically, the      enacted just four years ago. Further, dur-
Legislature found                                ing the Senate debate on the Hate Crimes
  ‘‘that many residents of this state have       Act of 2000, one Senator noted that ‘‘[i]t’s
  encountered prejudice on account of            no secret that for years we could have
  their sexual orientation, and that this        passed a hate-crimes bill if we were willing
  prejudice has severely limited or actual-      to take out gay people, if we were willing
  ly prevented access to employment,             to take out sexual orientation’’ (New York
  housing and other basic necessities of         State Senate Debate on Senate Bill S
  life, leading to deprivation and suffering.    4691–A, June 7, 2000, at 4609 [statement of
  The legislature further recognizes that        Senator Schneiderman]; accord id. at
  this prejudice has fostered a general          4548–4549 [statement of Senator Connor] ).
  climate of hostility and distrust, leading     The simple fact is that New York has not
  in some instances to S 388physical violence    enacted anything approaching comprehen-
  against those perceived to be homosexu-        sive statewide domestic partnership pro-
  al or bisexual’’ (L. 2002, ch. 2, § 1; see     tections for same-sex couples, much less
  also brief of Parents, Families &              marriage or even civil unions.
  Friends of Lesbians and Gays, Inc., et             In any event, the Supreme Court has
  al., as amici curiae in support of plain-      never suggested that racial or sexual clas-
  tiffs, at 22–49 [detailing history of state-   sifications are not (or are no longer) sub-
  sanctioned discrimination against gays         ject to heightened scrutiny because of the
  and lesbians] ).                               passage of even comprehensive civil rights
   Second, the Court has considered wheth-       laws (see Cleburne, 473 U.S. at 467, 105
er the trait used to define the class is         S.Ct. 3249 [Marshall, J., concurring in the
unrelated to the ability to perform and          judgment in part and dissenting in part] ).
participate in society. When the State           Indeed, sex discrimination was first held to
differentiates among its citizens ‘‘on the       deserve heightened scrutiny in 1973—after
basis of stereotyped characteristics not         passage of title VII of the Civil Rights Act
truly indicative of their abilities’’ (Massa-    of 1964 and the Equal Pay Act of 1963,
chusetts Bd. of Retirement v. Murgia, 427        federal laws prohibiting sex discrimination.
U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d         Such      measures     acknowledge—rather
520 [1976] ), the legislative classification     S 389than mark the end of—a history of pur-
must be closely scrutinized. Obviously,           poseful discrimination (see Frontiero v.
sexual orientation is irrelevant to one’s         Richardson, 411 U.S. 677, 687–688, 93
ability to perform or contribute.                 S.Ct. 1764, 36 L.Ed.2d 583 [1973] [citing
                                      HERNANDEZ v. ROBLES                                    N. Y.   29
                                        Cite as 855 N.E.2d 1 (N.Y. 2006)

antidiscrimination legislation to support                458 U.S. 718, 724, 102 S.Ct. 3331, 73
conclusion that classifications based on sex             L.Ed.2d 1090 [1982] [citations omitted] ).
merit heightened scrutiny] ).
                                                            Under the Domestic Relations Law, a
   Nor is plaintiffs’ claim legitimately an-
                                                         woman who seeks to marry another wom-
swered by the argument that the licensing
                                                         an is prevented from doing so on account
statute does not discriminate on the basis
                                                         of her sex—that is, because she is not a
of sexual orientation since it permits homo-
                                                         man. If she were, she would be given a
sexuals to marry persons of the opposite
sex and forbids heterosexuals to marry                   marriage license to marry that woman.
persons of the same sex. The purported                   That S 390the statutory scheme applies
‘‘right’’ of gays and lesbians to enter into             equally to both sexes does not alter the
marriages with different-sex partners to                 conclusion that the classification here is
whom they have no innate attraction can-                 based on sex. The ‘‘equal application’’ ap-
not possibly cure the constitutional viola-              proach to equal protection analysis was
tion actually at issue here. ‘‘The right to              expressly rejected by the Supreme Court
marry is the right of individuals, not of TTT            in Loving: ‘‘[W]e reject the notion that the
groups’’ (Perez v. Sharp, 32 Cal.2d 711,                 mere ‘equal application’ of a statute con-
716, 198 P.2d 17, 20 [1948] ). ‘‘Human                   taining [discriminatory] classifications is
beings are bereft of worth and dignity by a              enough to remove the classifications from
doctrine that would make them as inter-                  the [constitutional] proscription of all in-
changeable as trains’’ (32 Cal.2d at 725,                vidious TTT discriminations’’ (388 U.S. at 8,
198 P.2d at 25). Limiting marriage to                    87 S.Ct. 1817). Instead, the Loving court
opposite-sex couples undeniably restricts                held that ‘‘[t]here can be no question but
gays and lesbians from marrying their                    that Virginia’s miscegenation statutes rest
chosen same-sex partners whom ‘‘to [them]                solely upon distinctions drawn according to
may be irreplaceable’’ (id.)—and thus con-               race [where the] statutes proscribe gener-
stitutes discrimination based on sexual or-              ally accepted conduct if engaged in by
ientation.3                                              members of different races’’ (id. at 11, 87
              2.   Sex Discrimination                    S.Ct. 1817; see also Johnson v. California,
   The exclusion of same-sex couples from                543 U.S. 499, 506, 125 S.Ct. 1141, 160
civil marriage also discriminates on the                 L.Ed.2d 949 [2005]; McLaughlin v. Flori-
basis of sex, which provides a further basis             da, 379 U.S. 184, 191, 85 S.Ct. 283, 13
for requiring heightened scrutiny. Classi-               L.Ed.2d 222 [1964]; Anderson v. Martin,
fications based on sex must be substantial-              375 U.S. 399, 403–404, 84 S.Ct. 454, 11
ly related to the achievement of important               L.Ed.2d 430 [1964]; Shelley v. Kraemer,
governmental objectives (see e.g. Craig v.               334 U.S. 1, 21–22, 68 S.Ct. 836, 92 L.Ed.
Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50               1161 [1948]; J.E.B. v. Alabama ex rel.
L.Ed.2d 397 [1976] ), and must have an                   T.B., 511 U.S. 127, 141–142, 114 S.Ct. 1419,
‘‘exceedingly    persuasive    justification’’           128 L.Ed.2d 89 [1994] [government exer-
(Mississippi Univ. for Women v. Hogan,                   cise of peremptory challenges on the basis

3.     Indeed, the true nature and extent of the            ately obtain all of the myriad benefits and
     discrimination suffered by gays and lesbians           protections incident to marriage. Plaintiffs
     in this regard is perhaps best illustrated by          are, however, denied these rights because
     the simple truth that each one of the plaintiffs       they each desire instead to marry the person
     here could lawfully enter into a marriage of           they love and with whom they have created
     convenience with a complete stranger of the            their family.
     opposite sex tomorrow, and thereby immedi-
30   N. Y.           855 NORTH EASTERN REPORTER, 2d SERIES

of gender constitutes impermissible sex             fication rationally advance that interest.
discrimination even though based on gen-            Although a number of interests have been
der stereotyping of both men and wom-               proffered in support of the challenged clas-
en] ).                                              sification at issue, none is rationally fur-
          3.   Fundamental Right                    thered by the exclusion of same-sex cou-
   ‘‘Equality of treatment and the due pro-         ples from marriage. Some fail even to
cess right to demand respect for conduct            meet the threshold test of legitimacy.
protected by the substantive guarantee of              Properly analyzed, equal protection re-
liberty are linked in important respects,           quires that it be the legislated distinction
and a decision on the latter point advances         that furthers a legitimate state interest,
both interests’’ (Lawrence, 539 U.S. at 575,        not the discriminatory law itself (see e.g.
123 S.Ct. 2472). Because, as already dis-           Cooper, 49 N.Y.2d at 78, 424 N.Y.S.2d 168,
cussed, the legislative classification here         399 N.E.2d 1188; Romer v. Evans, 517
infringes on the exercise of the fundamen-          U.S. 620, 633, 116 S.Ct. 1620, 134 L.Ed.2d
tal right to marry, the classification cannot       855 [1996] ). Were it otherwise, an irra-
be upheld unless it is necessary to the             tional or invidious exclusion of a particular
achievement of a compelling state interest          group would be permitted so long as there
(see Onofre, 51 N.Y.2d at 492 n. 6, 434             was an identifiable group that benefitted
N.Y.S.2d 947, 415 N.E.2d 936; Alevy, 39             from the challenged legislation. In other
N.Y.2d at 332, 384 N.Y.S.2d 82, 348 N.E.2d          words, it is not enough that the State have
537; Eisenstadt v. Baird, 405 U.S. 438,             a legitimate interest in recognizing or sup-
447 n. 7, 92 S.Ct. 1029, 31 L.Ed.2d 349             porting opposite-sex marriages. The rele-
[1972] ). ‘‘[C]ritical examination of the           vant question here is whether there exists
state interests advanced in support of the          a rational basis for excluding same-sex
classification is required’’ (Zablocki, 434         couples from marriage, and, in fact, wheth-
U.S. at 383, 98 S.Ct. 673 [internal quota-          er the State’s interests in recognizing or
tion marks and citations omitted] ). And if         supporting opposite-sex marriages are ra-
‘‘the means selected by the State for               tionally furthered by the exclusion.
achieving’’ even ‘‘legitimate and substantial                      1.   Children
interests’’ unnecessarily impinge on the               Defendants primarily assert an interest
right to marry, the statutory distinction           in encouraging procreation within mar-
‘‘cannot be sustained’’ (id. at 388, 98 S.Ct.       riage. But while encouraging opposite-sex
673).                                               couples to marry before they have children
        B. Rational–Basis Analysis                  is certainly a legitimate interest of the
   Although the classification challenged           State, the exclusion of gay men and lesbi-
here should be analyzed using heightened            ans from marriage in no way furthers this
scrutiny, it does not satisfy even rational-        interest. There are enough marriage li-
basis review, which requires that the clas-         censes to go around for everyone.
sification ‘‘rationally further S 391a legitimate      Nor does this exclusion rationally fur-
state interest’’ (Affronti v. Crosson, 95           ther the State’s legitimate interest in en-
N.Y.2d 713, 718, 723 N.Y.S.2d 757, 746              couraging heterosexual married couples to
N.E.2d 1049 [2001], cert. denied sub nom.           procreate. Plainly, the ability or desire to
Affronti v. Lippman, 534 U.S. 826, 122              procreate is not a prerequisite for mar-
S.Ct. 66, 151 L.Ed.2d 32 [2001] ). Ration-          riage. The elderly are permitted to mar-
al-basis review requires both the existence         ry, and many same-sex couples do indeed
of a legitimate interest and that the classi-       have children. Thus, the statutory classifi-
                                       HERNANDEZ v. ROBLES                                    N. Y.   31
                                        Cite as 855 N.E.2d 1 (N.Y. 2006)

cation here—which prohibits only same-                   These elements are an important and sig-
sex couples, and no one else, from marry-                nificant aspect of the marital relationship’’
ing—is so grossly underinclusive and over-               (Turner, 482 U.S. at 95–96, 107 S.Ct.
inclusive as to make the asserted rationale              2254). Nor is there any conceivable ra-
in promoting procreation ‘‘impossible to                 tional basis for allowing prison inmates to
credit’’ (Romer, 517 U.S. at 635, 116 S.Ct.              marry, but not homosexuals. It is, of
1620).4 Indeed, even the Lawrence dissen-                course, no answer that inmates could po-
ters observed that ‘‘encouragement of pro-               tentially procreate once they are re-
creation’’ could not ‘‘possibly’’ be a justifi-          leased—that is, once they are no longer
cation S 392for denying marriage to gay and              prisoners—since, as nonprisoners, they
lesbian couples, ‘‘since the sterile and the             would then undeniably have a right to
elderly are allowed to marry’’ (539 U.S. at              marry even in the absence of Turner.
605, 123 S.Ct. 2472 [Scalia, J., dissenting];
                                                             Marriage is about much more than pro-
see also Lapides v. Lapides, 254 N.Y. 73,
                                                         ducing children, yet same-sex couples are
80, 171 N.E. 911 [1930] [‘‘inability to bear
                                                         excluded from the entire spectrum of pro-
children’’ does not justify an annulment
                                                         tections that come with civil marriage—
under the Domestic Relations Law] ).
                                                         purportedly to encourage other people to
   Of course, there are many ways in which               procreate. Indeed, the protections that
the government could rationally promote                  the State gives to couples who do marry—
procreation—for example, by giving tax                   such as the right to own property as a unit
breaks to couples who have children, subsi-              or to make medical decisions for each oth-
dizing child care for those couples, or man-             er—are focused largely on the adult rela-
dating generous family leave for parents.                tionship, rather than on the couple’s possi-
Any of these benefits—and many more—                     ble role as parents. Nor does the
might convince people who would not oth-                 S 393plurality even attempt to explain how
erwise have children to do so. But no one                 offering only heterosexuals the right to
rationally decides to have children because               visit a sick loved one in the hospital, for
gays and lesbians are excluded from mar-                  example, conceivably furthers the State’s
riage.                                                    interest in encouraging opposite-sex cou-
   In holding that prison inmates have a                  ples to have children, or indeed how ex-
fundamental right to marry—even though                    cluding same-sex couples from each of the
they cannot procreate—the Supreme                         specific legal benefits of civil marriage—
Court has made it clear that procreation is               even apart from the totality of marriage
not the sine qua non of marriage. ‘‘Many                  itself—does not independently violate
important attributes of marriage remain                   plaintiffs’ rights to equal protection of the
TTT after taking into account the limita-                 laws. The breadth of protections that the
tions imposed by prison lifeTTTT [I]nmate                 marriage laws make unavailable to gays
marriages, like others, are expressions of                and lesbians is ‘‘so far removed’’ from the
emotional support and public commitment.                  State’s asserted goal of promoting procrea-

4.      Although the plurality asserts that the Legis-      inherent in allowing all childless couples to
     lature could not possibly exclude from mar-            marry—if, as the plurality believes, the sole
     riage opposite-sex couples unable to have              purpose of marriage is procreation—by sim-
     children because to do so would require                ply barring from civil marriage all couples in
     ‘‘grossly intrusive inquiries’’ (plurality op. at      which both spouses are older than, say, 55.
     365, 821 N.Y.S.2d at 780, 855 N.E.2d at 11),           In that event, the State would have no need to
     no explanation is given as to why the Legisla-
                                                            undertake intrusive inquiries of any kind.
     ture could not easily remedy the irrationality
32      N. Y.          855 NORTH EASTERN REPORTER, 2d SERIES

tion that the justification is, again, ‘‘impos-       purposeful discrimination against homo-
sible to credit’’ (Romer, 517 U.S. at 635,            sexuals, thus constituting a flagrant equal
116 S.Ct. 1620).                                      protection violation. Second, such a pref-
   The State plainly has a legitimate inter-          erence would be contrary to the stated
est in the welfare of children, but exclud-           public policy of New York, and therefore
ing same-sex couples from marriage in no              irrational (see 18 NYCRR 421.16[h][2] [ap-
way furthers this interest. In fact, it un-           plicants to be adoptive parents ‘‘shall not
dermines it. Civil marriage provides                  be rejected solely on the basis of homosex-
tangible legal protections and economic               uality’’]; see also Jacob, 86 N.Y.2d at 668,
benefits to married couples and their chil-           636 N.Y.S.2d 716, 660 N.E.2d 397 [same-
dren, and tens of thousands of children are           sex partner of a legal parent may adopt
currently being raised by same-sex couples            that parent’s S 394child; ‘‘(a)ny proffered
in New York. Depriving these children of              justification for rejecting (adoptions) based
the benefits and protections available to             on a governmental policy disapproving of
the children of opposite-sex couples is anti-         homosexuality or encouraging marriage
thetical to their welfare, as defendants do           would not apply’’]; brief of American Psy-
not dispute (see e.g. Baker v. State, 170 Vt.         chological Association et al., as amici curi-
194, 219, 744 A.2d 864, 882 [1999] [‘‘(i)f            ae in support of plaintiffs, at 34–43 [collect-
anything, the exclusion of same-sex cou-              ing the results of social scientific research
ples from the legal protections incident to           studies which conclude that children raised
marriage exposes their children to the pre-           by same-sex parents fare no differently
cise risks that the State argues the mar-             from, and do as well as, those raised by
riage laws are designed to secure                     opposite-sex parents in terms of the quali-
against’’]; cf. Matter of Jacob, 86 N.Y.2d            ty of the parent-child relationship and the
651, 656, 636 N.Y.S.2d 716, 660 N.E.2d 397            mental health, development and social ad-
[1995] [‘‘(t)o rule otherwise would mean              justment of the child]; brief of Association
that the thousands of New York children               to Benefit Children et al., as amici curiae
actually being raised in homes headed by              in support of plaintiffs, at 31–35 [same
two unmarried persons could have only                 conclusion] ).5
one legal parent, not the two who want
                                                                 2.   Moral Disapproval
them’’] ). The State’s interest in a stable
society is rationally advanced when fami-                The government cannot legitimately jus-
lies are established and remain intact irre-          tify discrimination against one group of
spective of the gender of the spouses.                persons as a mere desire to preference
   Nor may the State legitimately seek ei-            another group (see Metropolitan Life Ins.
ther to promote heterosexual parents over             Co. v. Ward, 470 U.S. 869, 882 and n. 10,
homosexual parents, as the plurality pos-             105 S.Ct. 1676, 84 L.Ed.2d 751 [1985] ).
its, or to discourage same-sex parenting.             Further, the Supreme Court has held that
First, granting such a preference to heter-           classifications ‘‘drawn for the purpose of
osexuals would be an acknowledgment of                disadvantaging the group burdened by the

5.     Nor could the State have a legitimate inter-     parents ‘‘based solely on their biological
     est in privileging some children over others       mother’s sexual orientation or marital status
     depending on the manner in which they were         TTT raise(s) constitutional concerns’’]; Levy v.
     conceived or whether or not their parents          Louisiana, 391 U.S. 68, 71, 88 S.Ct. 1509, 20
     were married (see Jacob, 86 N.Y.2d at 667,         L.Ed.2d 436 [1968] [child born out of wed-
     636 N.Y.S.2d 716, 660 N.E.2d 397 [depriving        lock may not be denied rights enjoyed by
     children of legal relationship with de facto       other citizens] ).
                                        HERNANDEZ v. ROBLES                                     N. Y.   33
                                        Cite as 855 N.E.2d 1 (N.Y. 2006)

law’’ can never be legitimate (Romer, 517                est that is separate from the classification
U.S. at 633, 116 S.Ct. 1620), and that ‘‘a               itself (see Romer, 517 U.S. at 633, 635, 116
bare TTT desire to harm a politically un-                S.Ct. 1620). Because the ‘‘tradition’’ of
popular group cannot constitute a legiti-                excluding gay men and lesbians from civil
mate governmental interest’’ (Department                 marriage is no different from the classifi-
of Agriculture v. Moreno, 413 U.S. 528,                  cation itself, the exclusion cannot be justi-
534, 93 S.Ct. 2821, 37 L.Ed.2d 782 [1973];               fied on the basis of ‘‘history.’’ Indeed, the
see also Onofre, 51 N.Y.2d at 490, 434                   justification of ‘‘tradition’’ does not explain
N.Y.S.2d 947, 415 N.E.2d 936 [‘‘disapprov-               the classification; it merely repeats it.
al by a majority of the populace TTT may                 Simply put, a history or tradition of dis-
not substitute for the required demonstra-               crimination—no matter how entrenched—
tion of a valid basis for intrusion by the               does not make the discrimination constitu-
State in an area of important personal                   tional (see also Goodridge, 440 Mass. at
decision’’]; Palmore v. Sidoti, 466 U.S.                 332 n. 23, 798 N.E.2d at 961 n. 23 [‘‘it is
429, 433, 104 S.Ct. 1879, 80 L.Ed.2d 421                 circular reasoning, not analysis, to main-
[1984] [‘‘(p)rivate biases may be outside                tain that marriage must remain a hetero-
the reach of the law, but the law cannot,                sexual institution because that is what it
directly or indirectly, give them effect’’];             historically has been’’] ).6
Lawrence, 539 U.S. at 571, 123 S.Ct. 2472                                  4.   Uniformity
[no legitimate basis to penalize gay and                    The State asserts an interest in main-
lesbian relationships notwithstanding that               taining uniformity with the marriage laws
‘‘for centuries there have been powerful                 of other states. But our marriage laws
voices to condemn homosexual conduct as                  currently are not uniform with those of
immoral’’]; id. at 583, 123 S.Ct. 2472                   other states. For example, New York—
[O’Connor, J., concurring in the judgment]               unlike most other states in the nation—
[‘‘(m)oral disapproval’’ of homosexuals can-             permits first cousins to marry (see Domes-
not be a legitimate state interest] ).                   tic Relations Law § 5). This disparity has
                  S 3953.   Tradition                    caused no trouble, however, because well-
   That civil marriage has traditionally ex-             settled principles of comity resolve any
cluded same-sex couples—i.e., that the                   conflicts. The same well-settled principles
‘‘historic and cultural understanding of                 of comity would resolve any conflicts aris-
marriage’’ has been between a man and a                  ing from any disparity involving the recog-
woman—cannot in itself provide a rational                nition of same-sex marriages.
basis for the challenged exclusion. To say                  It is, additionally, already impossible to
that discrimination is ‘‘traditional’’ is to say         maintain uniformity among all the states,
only that the discrimination has existed for             inasmuch as Massachusetts has now legal-
a long time. A classification, however,                  ized same-sex marriage. Indeed, of the
cannot be maintained merely ‘‘for its own                seven jurisdictions that border New York
sake’’ (Romer, 517 U.S. at 635, 116 S.Ct.                State, only Pennsylvania curSrently396 af-
1620). Instead, the classification (here,                fords no legal status to same-sex relation-
the exclusion of gay men and lesbians from               ships. Massachusetts, Ontario and Quebec
civil marriage) must advance a state inter-              all authorize same-sex marriage; Vermont

6.     Ultimately, as the Lawrence dissenters rec-          same-sex couples’’ (539 U.S. at 601, 123 S.Ct.
     ognized, ‘‘ ‘preserving the traditional institu-       2472 [Scalia, J., dissenting] ), an illegitimate
     tion of marriage’ is just a kinder way of              basis for depriving gay and lesbian couples of
     describing the State’s moral disapproval of            the equal protection of the laws.
34   N. Y.          855 NORTH EASTERN REPORTER, 2d SERIES

and Connecticut provide for civil unions      Senate–Assembly Bill S 5156, A 7463;
(see Vt. Stat. Ann., tit. 15, § 1204[a];      2005 N.Y. Assembly Bill A 1823; 2003
Conn. Gen. Stat. § 46b–38nn); and New         N.Y. Senate Bill S 3816; 2003 N.Y. Assem-
Jersey has a statewide domestic partner-      bly Bill A 7392; 2001 N.Y. Senate Bill S
ship law (see NJ Stat. Ann. § 26:8A–1 et      1205; see also 2005 N.Y. Senate–Assembly
seq.). Moreover, insofar as a number of       Bill S 1887–A, A 3693–A [proposing estab-
localities within New York offer domestic     lishment of domestic partnerships]; 2004
partnership registration, even the law        N.Y. Senate–Assembly Bill S 3393–A, A
within the state is not uniform. Finally,     7304–A [same] ).
and most fundamentally, to justify the ex-
                                                 It is uniquely the function of the Judi-
clusion of gay men and lesbians from civil
                                              cial Branch to safeguard individual liber-
marriage because ‘‘others do it too’’ is no
                                              ties guaranteed by the New York State
more a justification for the discriminatory
                                              Constitution, and to order redress for
classification than the contention that the
                                              their violation. The Court’s duty to pro-
discrimination is rational because it has
                                              tect constitutional rights is an imperative
existed for a long time. As history has
                                              of the separation of powers, not its enemy.
well taught us, separate is inherently un-
equal.                                          I am confident that future generations
             III. The Legislature             will look back on today’s decision as an
                                              unfortunate misstep.
   The Court ultimately concludes that the
issue of same-sex marriage should be ad-
                                                S 397Judges G.B. SMITH and READ
dressed by the Legislature. If the Legis-
                                              concur with Judge R.S. SMITH.
lature were to amend the statutory scheme
by making it gender neutral, obviously the      Judge GRAFFEO concurs in result in a
instant controversy would disappear. But      separate opinion in which Judge G.B.
this Court cannot avoid its obligation to     SMITH concurs.
remedy constitutional violations in the
hope that the Legislature might some day        Chief Judge KAYE dissents in another
render the question presented academic.       opinion in which Judge CIPARICK
After all, by the time the Court decided      concurs.
Loving in 1967, many states had already         Judge ROSENBLATT taking no part.
repealed their antimiscegenation laws.
Despite this trend, however, the Supreme        In each case: Order affirmed, without
Court did not refrain from fulfilling its     costs.
constitutional obligation.
  The fact remains that although a num-
ber of bills to authorize same-sex marriage               ,
have been introduced in the Legislature
over the past several years, none has ever
made it out of committee (see 2005 N.Y.

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