So I thought I’d jump back in by discussing the recent NYC same-sex marriage case Hernandez v. Robles. Before we get into a summary of the decision it is worth noting the implications of the decision. The defendant in the case was the City Clerk of the City of New York, and hence it was essentially up to New York City Mayor Michael Bloomberg to decide whether to appeal the ruling. [For what it’s worth disclaimer: I am currently employed by New York City in a capacity in no way related to this case]. When the decision came out on Friday there was some speculation that Mayor Bloomberg might not appeal, thus allowing the clerk to issue marriage licenses within the next 30 days. Bloomberg quickly ended speculation yesterday by announcing that while he supported same-sex marriage--and would work to get legislation for it passed in Albany if the lower court ruling was struck down--he was going to appeal the decision so as to get a definite ruling from the state’s highest court as soon as possible. He also said that he would seek to expedite the appeal directly to the highest court (essentially skipping a review by an intermediate appellate court). There were no disagreements as to the facts in this case; it was entirely a question of law, so there is little consequence to this decision other than to speed up the process of getting the state’s highest court to examine the issue. I figure we should find out soon whether the appeal is indeed expedited. In the meantime, I thought I would summarize the court’s decision anyway below and in a subsequent post weigh in with my own opinions and analysis on some of the controversial issues involved.
Justice Ling-Cohan wrote a 62 page opinion (pdf) which is well worth reading for those who are interested and have the time, but for those who would like a summary I offer the following with the same outline used by her. Throughout I will freely quote from the opinion omitting internal citations.
As noted earlier the facts are not in dispute and are fairly straightforward. Five committed same-sex couples sought marriage licenses from the City Clerk of the City of New York. They were denied and given copies of letters from the city’s Law Department and from the Attorney General of New York both offering the opinion that New York State Law does not currently allow same-sex marriage. (The AG’s letter did note that there were serious constitutional questions about such exclusion that were best resolved by the courts). They were also given some information about New York City's Domestic Partnership registration program.
A. Disadvantages Suffered by Plaintiff Couples and their Children
It's best here to just quote directly from the opinion:
Marriage provides an extensive legal structure that protects the couple and any children. It is not disputed, for example, that among many other disadvantages, plaintiff couples may not own property by the entireties; file joint state income tax returns; obtain health insurance through a partner's coverage; obtain joint liability or homeowner's insurance; collect from a partner's pension benefits; have one partner of the two-women couples be the legal parent of the other partner's artificially inseminated child, without the expense of an adoption proceeding; invoke the spousal evidentiary privilege; recover damages for an injury to, or the wrongful death of, a partner; have the right to make important medical decisions for a partner in emergencies; inherit from a deceased partner's intestate estate; or determine a partner's funeral and burial arrangements...
….One of the most important benefits of marriage is the securing of the bonds between parents and children and the protection of children raised in the family. For example, the children of parents in same-sex relationships are not necessarily covered by the statutory duty of support. Under State law, when a couple elects to conceive a child through donor insemination, only the married couple can ensure that at birth the child has an automatic legal parent-child relationship with each, upon their written consent.
Marriage also imposes reciprocal responsibilities on spouses, which serve to protect the family, including the legal requirement that spouses provide each other with financial support or face legal redress in certain circumstances, such as if one spouse is a recipient of public assistance. Spouses, but not unmarried couples, are permitted to take out insurance policies on each other....
...Furthermore, plaintiff couples and their children suffer numerous intangible burdens as the result of being relegated to a caste-determined status that is different from that of families in which the adult couple has been allowed to marry.
B. New York’s Domestic Relations Law (DRL)
There were two important points discussed in the section. First of all, the court agreed with the Attorney General’s opinion that while the state DRL does not expressly forbid same-sex marriage one can infer from the history and gendered language of the law that the legislature did not intend to authorize such marriages.
The second issue was whether a decision of a higher court (in Matter of Cooper) had settled the question facing this court. Once again the court agreed with the AG opinion that the previous case did not really address the issue of a right to marry (it concerned instead whether the surviving partner of an unmarried same-sex couple had to be treated as a surviving “spouse”). The court also provided a few other reasons for why Matter of Cooper was not too relevant for addressing the current issue before the court. Those concerns generally dealt with the Cooper court’s reliance on a federal case (from Minnesota in 1971) called Baker v. Nelson which found no federal constitutional problem in prohibiting same-sex marriage. The court found Baker v. Nelson to be of little value because (1) The state constitution could offer more protection than the federal constitution and (2) even at the federal level cases subsequent to Baker v. Nelson has little precedential value because of subsequent US Supreme Court doctrine.
C. Plaintiffs Raise State Constitutional Due Process and Equal Protection Claims
The court noted that even when the language in the New York State Constitution was identical to language in the federal constitution, it could provide (and has provided) more protection. It then dealt with the two issues separately.
1. The Restriction on Same-Sex Marriage Violates Fundamental Due Process Protections.
Like the US Constitution, the NY Constitution guarantees that “[n]o person shall be deprived of life, liberty, or property without due process of the law” and it is well established that the right of liberty includes the right to marry. The opinion looked at several cases discussing this right to liberty and the broad principles involved of an individual making their own choices in certain matters. The court looked at this more closely in...
a. The Due Process Right to Liberty Protects the Right to Marry
Again let me turn to quoting the decision (Note that the Court of Appeals is New York State’s highest court and People v. Onofre was a 1980 sodomy case):
New York courts have analyzed the liberty interest at issue in terms that recognize and embrace the broader principles at stake. The Court of Appeals, in holding unconstitutional New York's consensual sodomy prohibition, did not define the nature of the claim with such specificity as to obscure the real right at stake (such as, for example, defining the claim as a fundamental right to engage in non-marital oral sodomy in an automobile parked on a city street). People v. Onofre. Instead, the Court's review of the constitutional deprivation focused on the individual's broader liberty interest, a fundamental right of personal decision extending to non-marital sexual intimacy.
Justice Ling-Cohan returned to the issue of how specific or broad to define the right to marriage later in (II)(C)(1)(d).
b. Defining the Protected Marriage Rights
The court then noted the established right to marry covers not only who may marry, but the right to choose whom one may marry. It is this right that is being infringed in the current case. That, for example, was one of the problems with laws prohibiting interracial marriage. Nobody was forbidden from getting married by such laws, but they were forbidden from making certain choices as to whom to marry. Thus the court subjected this case to strict scrutiny. That is at this point it was up to the state to provide a compelling interest for denying these couples marriage licenses.
c. No Compelling State Interests Require A Bar on Same-Sex Marriage
The court looked at the two interest raised by the defense:
i. The State Interest In Keeping the Traditional Definition of Marriage
The court noted that if tradition alone were even a legitimate state interest to uphold a law, there would still be a marital rape exception. There would still be laws prohibiting sodomy. If one instead looks at the reasons for the tradition, it may be argued that marriage is uniquely tied to the procreation and rearing of children. The court responded,
However, it is also indisputable that the DRL does not bar women who are past child-bearing age to marry, and that the long-term union of a man and a woman is no longer the only familial context for raising children.
It noted how a number of the plaintiffs were raising children. More importantly, there was no argument for how allowing same-sex couples to marry would harm the marital arrangements of any other couple. The court continued,
Excluding same-sex couples from marrying may, in fact, undermine the State’s interest in providing optimal environments for child-rearing, in that children of those families are then not afforded the same legal, financial and health benefits that children of married couples receive.
Finally the court noted that the concept of marriage has evolved, an issue it dealt with later in (II)(D)
ii. Ensuring Consistency with Federal Law and Other States As a State Interest
The court fairly quickly dismissed this claim as being even a legitimate interest. For one thing the same-sex couples (and anybody else) are no worse off if their marriage isn’t recognized elsewhere. Furthermore, “an elaborate body of comity law already exists nationwide to deal with inconsistency in State laws regarding marriage.”
d. Defendant’s Argument That Plaintiffs Must Establish A Fundamental Right to Same-Sex Marriage is Not Persuasive
Here the court returned to the argument that the liberty interest at state was not so much a right to marry, but a right to same-sex marriage. The court noted that this type of thinking (defining the issue with such specificity as to obscure the principles involved) was just the type of thinking criticized by the US Supreme Court in Lawrence when it overturned Bowers. (Federal cases dealing with sodomy). Likewise there was no fundamental right to interracial marriage at the time of Perez (a 1948 California case) or Loving (a 1967 Federal case), or fundamental right of inmates to marry at the time of Turner, etc.
The court further noted in regards to the argument that same-sex marriage is not marriage because that’s not what marriage has been:
Marriage is no more limited by the historical exclusion of same-sex marriage than it was limited by the exclusion of interracial marriage, the legal doctrine of coverture, the pre-1967 restrictions on remarriage following divorce in New York, longstanding restrictions on divorce, or the “marital exemption” to the crime of rape.
The court spent some time discussing each of these examples of marriage changing from what it had traditionally been.
2. Plaintiffs’ Claim That the Restriction on Same-Sex Marriage Violates Equal Protection.
The court sounded skeptical of the sex-based equal protection argument. Justice Ling-Cohan noted that the law treats men and women equally and while this could still be a problem if there were discriminatory intent, but
Here, however, there is no evidence that the Legislature had a specific intent to bar same-sex marriage. Moreover, with the gradual equalization of the rights of men and women in marriage, it cannot be readily argued that the requirement that a married couple consist of a man and a woman is intended to, or does, reinforce traditional sex roles.
The court concluded, though, that it need not address this argument as it “indisputably” discriminated against the couples on the basis of sexual orientation. And regardless of whether that would subject the law to higher scrutiny the state had failed to provide even a legitimate state interest.
D. New York's Evolving Commitment to Protect and Respect Same-Sex Relationships
Justice Ling-Cohan argued that the change being made in this decision was consistent not only with the way marriage was evolving, but with the way New York’s attitude toward respecting and protecting same-sex relationships was changing.
The court first noted that it is indeed the court’s role to rule on challenges to a statute’s constitutionality. As for the actual remedy, there were two possibilities. The court could either strike down the marriage laws, or read them gender neutrally. The latter seemed the more natural choice, and in fact, past constitutional violations of the DRL have been remedied by reading words in a gender-neutral manner. That was what the court would order here.
The court concluded with some words regarding the importance of marriage and the importance of being able to choose our spouse without governmental interference.
[some typos corrected]