Daniel Hernandez, et al.,
Victor L. Robles, &c.,
Sylvia Samuels, et al.,
Jason Seymour, et al.,
The New York State Department of
Julie Holcomb as City Clerk of
Health and the State of New York, the City of Ithaca, et al.,
In the Matter of Elissa Kane,
2006 NY Int. 103
We are asked by the 44 same-sex couples who commenced these four cases to declare that the denial of marriage licenses to same-sex couples violates the Due Process and Equal Protection Clauses of the New York Constitution. Plaintiffs and petitioners (collectively referred to as plaintiffs) are representative of many homosexual couples living in committed relationships in our State, some of whom are raising children. They seek the societal recognition and legal and financial benefits accorded by the State to legally married couples. Respondents are the State of New York, the State Department of Health and local officials from the cities of New York, Albany and Ithaca who are involved either in overseeing the New York marriage licensing process or issuing marriage licenses.
Plaintiffs assert that the restriction of marriage to
This Court has long recognized that "[f]rom time
immemorial the State has exercised the fullest control over the
marriage relation," going so far as to observe that "[t]here are,
in effect, three parties to every marriage, the man, the woman
and the State" ( Fearon v Treanor, 272 NY 268, 272 , app
dismissed 301 US 667 ). The historical conception of
marriage as a union between a man and a woman is reflected in the
civil institution of marriage adopted by the New York
Legislature. The cases before us present no occasion for this
Court to debate whether the State Legislature should, as a matter
of social welfare or sound public policy, extend marriage to
same-sex couples. Our role is limited to assessing whether the
current statutory scheme offends the Due Process or Equal
Protection Clauses of the New York Constitution. Because it does
As a preliminary matter, although plaintiffs have abandoned the argument (raised in Supreme Court in both Kane and Seymour) that the Domestic Relations Law already authorizes same- sex marriage because it does not explicitly define marriage as a union between one man and one woman, several amici continue to suggest that this Court can avoid a constitutional analysis by simply interpreting the statutory scheme to allow same-sex marriage. Our role when construing a statute is to ascertain and implement the will of the Legislature unless we are prevented from doing so by constitutional infirmity. It would be inappropriate for us to interpret the Domestic Relations Law in a manner that virtually all concede would not comport with legislative intent.
There is no basis to conclude that, when the
Legislature adopted the Domestic Relations Law more than a
century ago, it contemplated the possibility of same-sex
marriage, much less intended to authorize it. In fact, the
Domestic Relations Law contains many references to married
persons that demonstrate that the Legislature viewed marriage as
a union between one woman and one man -- as seen by references to
the parties to a marriage as the "bride" and "groom" (Domestic Relations Law § 15[a]) and "wife" and "husband" (Domestic
Plaintiffs argue that the Domestic Relations Law
violates article I, § 6 of the New York Constitution, which
provides that "[n]o person shall be deprived of life, liberty or
property without due process of law." Their substantive due
process challenge is predicated on the assertion that the New
York Constitution precludes the State from defining marriage as a
union between one man and one woman because the right to privacy
derived therein grants each individual the unqualified right to
select and marry the person of his or her choice. If the Due
Process Clause encompasses this right, and if it is one of the
bundle of rights deemed "fundamental" as plaintiffs contend, the
But it is an inescapable fact that New York due process
cases and the relevant federal caselaw cited therein do not
support plaintiffs' argument. While many U.S. Supreme Court
decisions recognize marriage as a fundamental right protected
under the Due Process Clause, all of these cases understood the
marriage right as involving a union of one woman and one man ( see
e.g. Turner v Safley, 482 US 78 ; Zablocki v Redhail, 434 US 374 ; Griswold v Connecticut, 381 US 479 ; Skinner
v Oklahoma, 316 US 535 ). Whether interpreting New York's
Due Process Clause or its federal counterpart (which is textually
identical), when this Court has addressed the fundamental right
to marry, it has relied on federal precedent and similarly used
the word "marriage" in its traditional sense. For example, in
Cooper v Morin, we grounded the right of pretrial detainees to
have contact visits with family on the "fundamental right to
marriage and family life . . . and to bear and rear children" (49
2 69, 80 , cert denied 446 US 984 ), citing U.S.
Supreme Court cases highlighting the link between marriage and
procreation. As the Third Department aptly noted in Samuels, to
ignore the meaning ascribed to the right to marry in these cases
and substitute another meaning in its place is to redefine the
right in question and to tear the resulting new right away from
Nor has this Court recognized a due process right to
privacy distinct from that articulated by the U.S. Supreme Court.
Although our Court has interpreted the New York Due Process
Clause more broadly than its federal counterpart on a few
occasions, all of those cases involved the rights of criminal
defendants, prisoners or pretrial detainees, or other confined
individuals and implicated classic liberty concerns beyond the
right to privacy. Most recently, in People v LaValle (3 NY3d 88
), the Court concluded that the anticipatory deadlock
charge in the Death Penalty Act violated New York's Due Process
Clause, even though it may have been upheld under the United
States Constitution. Likewise, in Cooper (49 2 69), we held
that the New York Due Process Clause protected the right of
pretrial detainees in a county jail to have non-conjugal contact
visits with family members, even though no such right had been
deemed protected under the Federal Due Process Clause. Even
then, our analysis did not turn on recognition of broader family
privacy rights than those articulated by the Supreme Court.
Rather, the analysis focused on rejection of the rational basis
test that the Supreme Court then applied to assess jail
with this Court instead adopting a test that
Most of our Due Process Clause decisions in the right
to privacy realm have cited federal authority interchangeably
with New York precedent, making no distinction between New York's
constitutional provision and the Federal Due Process Clause ( see
e.g. Hope v Perales, , 83 NY2d 563, 575 ; Matter of Raquel
Marie X., , 76 NY2d 387 , cert denied 498 US 984 1990];
Matter of Doe v Coughlin, , 71 NY2d 48 , cert denied 488 US 879 ; Rivers v Katz, , 67 NY2d 485 ). Our Court has
not recognized a fundamental right to marry that departs in any
respect from the right defined by the U.S. Supreme Court in cases
like Skinner which acknowledged that marriage is "fundamental to
the very existence and survival of the [human] race" because it
is the primary institution supporting procreation and child-
rearing (316 US at 541; see also Zablocki, 434 US 374; Griswold,
381 US 479). The binary nature of marriage -- its inclusion of
one woman and one man -- reflects the biological fact that human
procreation cannot be accomplished without the genetic
contribution of both a male and a female. Marriage creates a
supportive environment for procreation to occur and the resulting
offspring to be nurtured. Although plaintiffs suggest that the
connection between procreation and marriage has become
Plaintiffs' reliance on Loving v Virginia (388 US 1 ) for the proposition that the U.S. Supreme Court has established a fundamental "right to marry the spouse of one's choice" outside the male/female construct is misplaced. In Loving, an interracial couple argued that Virginia's anti- miscegenation statute, which precluded "any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian" ( id. at 5 n 4), violated the Federal Due Process and Equal Protection Clauses. The statute made intermarriage in violation of its terms a felony carrying a potential jail sentence of one to five years. The Lovings -- a white woman and a black man -- had married in violation of the law and been convicted, prompting them to challenge the validity of the Virginia law.
The Supreme Court struck the statute on both equal
protection and due process grounds, but the focus of the analysis
was on the Equal Protection Clause. Noting that "[t]he clear and
central purpose of the Fourteenth Amendment was to eliminate all
official state sources of invidious racial discrimination in the
States," the Court applied strict scrutiny review to the racial
classification, finding "no legitimate overriding purpose
independent of invidious racial discrimination which justifies
In its brief due process analysis, the Supreme Court
reiterated that marriage is a right "fundamental to our very
existence and survival" ( id., citing Skinner, 316 US 535, 541) --
a clear reference to the link between marriage and procreation.
It reasoned: "To deny this fundamental freedom on so
unsupportable a basis as the racial classifications embodied in
these statutes . . . is surely to deprive all the State's
citizens of liberty without due process of law" ( id.). Although
the Court characterized the right to marry as a "choice," it did
not articulate the broad "right to marry the spouse of one's
choice" suggested by plaintiffs here. Rather, the Court observed
that "[t]he Fourteenth Amendment requires that the freedom of
choice to marry not be restricted by invidious racial
discriminations" ( id. [emphasis added]).
Needless to say, a
Nor does the Supreme Court's recent Federal due process analysis in Lawrence v Texas (539 US 558 ) support defining the fundamental marriage right in the manner urged by plaintiffs. In Lawrence, the Court overruled its prior decision in Bowers v Hardwick (478 US 186 ) and struck as unconstitutional a Texas statute that criminalized consensual sodomy between adult individuals of the same sex. The holding in Lawrence is consistent with our Court's decision in People v Onofre (, 51 NY2d 476 , cert denied 451 US 987 ), which invalidated under a federal due process analysis a New York penal law provision that criminalized consensual sodomy between non-married persons.
In Lawrence the Supreme Court did not create any new fundamental rights, nor did it employ a strict scrutiny analysis. It acknowledged that laws that criminalize sexual conduct between homosexuals
"have more far-reaching consequences,
touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals" (539 US at 567).
Criticizing the historical analysis in Bowers, it noted that, even though sodomy as well as other nonprocreative sexual activity had been proscribed, criminal statutes "directed at homosexual conduct as a distinct matter" ( id. at 568) were of recent vintage, having developed in the last third of the 20th century, and therefore did not possess "ancient roots" ( id. at 570).
Consistent with our analysis in Onofre, the Lawrence
Court held "that adults may choose to enter upon this
relationship in the confines of their home and their own private
lives and still retain their dignity as free persons" ( id. at
567) because "liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in matters
pertaining to sex" ( id. at 572). It reasoned that "moral
disapproval" -- the only justification Texas proffered for its
law -- is never an adequate basis for a criminal statute, a
conclusion similar to this Court's observation in Onofre that "it
is not the function of the Penal Law in our governmental policy
to provide either a medium for the articulation or the apparatus
for the intended enforcement of moral or theological values" (51
2 at 488 n 3). Thus, in striking the sodomy law, the Supreme
Court found that "[t]he Texas statute furthers no legitimate
The right affirmed by the Supreme Court in Lawrence is not comparable to the new right to marry plaintiffs assert here, nor is the Texas statute criminalizing homosexual sodomy analogous to the marriage statutes under review. The Domestic Relations Law is not a penal provision and New York has not attempted to regulate plaintiffs' private sexual conduct or disturb the sanctity of their homes. And, in contrast to the Texas statute, New York's marriage laws are part of a longstanding tradition with roots dating back long before the adoption of our State Constitution.
New York's Due Process Clause simply does not encompass a fundamental right to marry the spouse of one's choice outside the one woman/one man construct. Strict scrutiny review of the Domestic Relations Law is therefore not warranted and, insofar as due process analysis is concerned, the statutory scheme must be upheld unless plaintiffs prove that it is not rationally related to any legitimate state interest. Equal Protection:
Plaintiffs contend that, even if strict scrutiny analysis is not appropriate under the Due Process Clause, a heightened standard of review is nonetheless mandated under the Equal Protection Clause because New York's marriage laws create gender and sexual orientation classifications that require a more rigorous level of analysis than rational basis review.
The Equal Protection Clause, added to the New York Constitution in 1938, provides:
"No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency of subdivision of the state" (NY Const Art I, § 11).
Soon after the adoption of this provision, this Court recognized that it was modeled after its federal counterpart and "embodies" the federal equal protection command ( Dorsey v Stuyvesant Town Corp., 299 NY 512, 530 , cert denied 339 US 981 ; see also, Under 21, Catholic Home Bur. for Dependent Children v City of New York, , 65 NY2d 344, 360 n 6  ["the State constitutional equal protection clause . . . is no broader in coverage than the Federal provision"]). Accordingly, this Court has consistently cited federal cases and applied federal analysis to resolve equal protection claims brought under the Federal and State Constitutions ( see e.g. Matter of Aliessa v Novello, , 96 NY2d 418 ; People v Liberta, , 64 NY2d 152 , cert denied 471 US 1020 ).
The Equal Protection Clause "is essentially a direction
that all persons similarly situated should be treated alike"
( City of Cleburne v Cleburne Living Ctr., 473 US 432, 439
). Both the U.S. Supreme Court and this Court have applied
three levels of review to legislative classifications. "[W]hen a
statute classifies by race, alienage, or national origin," ( id.
Plaintiffs argue that the Domestic Relations Law creates a classification based on gender that requires intermediate scrutiny because a woman cannot marry another woman due to her gender and a man cannot marry another man due to his gender. Respondents counter that the marriage laws are neutral insofar as gender is concerned because they treat all males and females equally -- neither gender can marry a person of the same sex and both can marry persons of the opposite sex.
Respondents interpretation more closely comports with
the analytical framework for gender discrimination applied by
this Court and the Supreme Court. The precedent establishes that
gender discrimination occurs when men and women are not treated
equally and one gender is benefitted or burdened as opposed to
Plaintiffs cite Loving for the proposition that a
statute can discriminate even if it treats both classes
identically. This misconstrues the Loving analysis because the
anti-miscegenation statute did not treat blacks and white
identically -- it restricted who whites could marry (but did not
restrict intermarriage between non-whites) for the purpose of
In contrast, neither men nor women are disproportionately disadvantaged or burdened by the fact that New York's Domestic Relations Law allows only opposite-sex couples to marry -- both genders are treated precisely the same way. As such, there is no gender classification triggering intermediate scrutiny.
Nor does the statutory scheme create a classification
based on sexual orientation. In this respect, the Domestic
Relations Law is facially neutral: individuals who seek marriage
licenses are not queried concerning their sexual orientation and
are not precluded from marrying if they are not heterosexual.
Regardless of sexual orientation, any person can marry a person
of the opposite sex. Certainly, the marriage laws create a
classification that distinguishes between opposite-sex and same-
sex couples and this has a disparate impact on gays and lesbians.
However, a claim that a facially-neutral statute enacted without
an invidious discriminatory intent has a disparate impact on a
class (even a suspect class, such as one defined by race) is
Thus, under both the Due Process and Equal Protection Clauses, these cases turn on whether the Legislature's decision to confine the institution of marriage to couples composed of one woman and one man is rationally related to any legitimate state interest. In Affronti v Crosson (, 95 NY2d 713, 719 , cert denied 534 US 826  [internal quotation marks, citations and brackets omitted]), we explained that
"[t]he rational basis standard of review is a paradigm of judicial restraint. On rational basis review, a statute will be upheld unless the disparate treatment is so unrelated to the achievement of any combination of legitimate purposes that it is irrational. Since the challenged statute is presumed to
be valid, the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it whether or not the basis has a foundation in the record. Thus, those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker."
Especially in the realm of social or economic legislation, "the Equal Protection Clause allows the States wide latitude . . . and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes" ( City of Cleburne, 473 US at 440; see generally Lovelace v Gross, , 80 NY2d 419, 427 ).
In these cases, respondents articulate a number of interests that they claim are legitimate and are advanced by the current definition of marriage. Given the extremely deferential standard of review, plaintiffs cannot prevail unless they establish that no conceivable legitimate interest is served by the statutory scheme. This means that if this Court finds a rational connection between the classification and any single governmental concern, the marriage laws survive review under both the Due Process and Equal Protection Clauses.
As set forth in the plurality opinion, plaintiffs have
failed to negate respondents' explanation that the current
definition of marriage is rationally related to the state's
legitimate interest in channeling opposite-sex relationships into
marriage because of the natural propensity of sexual contact
between opposite-sex couples to result in pregnancy and
As Justice Robert Cordy pointed out in his dissent in Goodridge v Dept. of Public Health (440 Mass at 381-382 [Cordy, J., dissenting]):
"Civil marriage is the institutional mechanism by which societies have sanctioned and recognized particular family structures, and the institution of marriage has existed as one of the fundamental organizing principles of civil society . . . Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated and socialized. . . [A]n orderly society requires some mechanism for coping with the fact that sexual intercourse [between a man and a woman] commonly results in pregnancy and childbirth. The institution of marriage is that mechanism."
Since marriage was instituted to address the fact that
sexual contact between a man and a woman naturally can result in
pregnancy and childbirth, the Legislature's decision to focus on
opposite-sex couples is understandable. It is not irrational for
the Legislature to provide an incentive for opposite-sex couples
-- for whom children may be conceived from casual, even momentary
intimate relationships -- to marry, create a family environment,
and support their children. Although many same-sex couples share
these family objectives and are competently raising children in a
As respondents concede, the marriage classification is imperfect and could be viewed in some respects as overinclusive or underinclusive since not all opposite-sex couples procreate, opposite-sex couples who cannot procreate may marry, and opposite-sex partners can and do procreate outside of marriage. It is also true that children being raised in same-sex households would derive economic and social benefits if their parents could marry. But under rational basis review, the classification need not be perfectly precise or narrowly tailored -- all that is required is a reasonable connection between the classification and the interest at issue. In light of the history and purpose of the institution of marriage, the marriage classification in the Domestic Relations Law meets that test.
The Legislature has granted the benefits (and
responsibilities) of marriage to the class -- opposite-sex
couples -- that it concluded most required the privileges and
burdens the institution entails due to inherent procreative
capabilities. This type of determination is a central
legislative function and lawmakers are afforded leeway in
fulfilling this function, especially with respect to economic and
social legislation where issues are often addressed incrementally
( see Federal Communication Commission v Beach Communications, 508
KAYE, CHIEF JUDGE (dissenting):
Plaintiffs (including petitioners) are 44 same-sex couples who wish to marry. They include a doctor, a police officer, a public school teacher, a nurse, an artist and a State legislator. Ranging in age from under 30 to 68, plaintiffs reflect a diversity of races, religions and ethnicities. They come from upstate and down, from rural, urban and suburban settings. Many have been together in committed relationships for decades, and many are raising children--from toddlers to teenagers. Many are active in their communities, serving on their local school board, for example, or their cooperative apartment building board. In short, plaintiffs represent a cross-section of New Yorkers who want only to live full lives, raise their children, better their communities and be good neighbors.
For most of us, leading a full life includes
establishing a family. Indeed, most New Yorkers can look back
on, or forward to, their wedding as among the most significant
events of their lives. They, like plaintiffs, grew up hoping to
find that one person with whom they would share their future,
eager to express their mutual lifetime pledge through civil
marriage. Solely because of their sexual orientation, however--
Under both the State and Federal Constitutions, the right to due process of law protects certain fundamental liberty interests, including the right to marry. Central to the right to marry is the right to marry the person of one's choice ( see e.g. Crosby v State of N.Y., Workers' Compensation Bd., , 57 NY2d 305, 312  ["clearly falling within (the right of privacy) are matters relating to the decision of whom one will marry"]; People v Shepard, , 50 NY2d 640, 644  ["the government has been prevented from interfering with an individual's decision about whom to marry"]). The deprivation of a fundamental right is subject to strict scrutiny and requires that the infringement be narrowly tailored to achieve a compelling state interest ( see e.g. Carey v Population Servs. Intl., 431 US 678, 686 ).
Fundamental rights are those "which are, objectively,
deeply rooted in this Nation's history and tradition . . . and
implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed"
( Washington v Glucksberg, 521 US 702, 720-721  [internal
quotation marks and citations omitted]). Again and again, the
Supreme Court and this Court have made clear that the right to
marry is fundamental ( see e.g. Loving v Virginia, 388 US 1
The Court concludes, however, that same-sex marriage is not deeply rooted in tradition, and thus cannot implicate any fundamental liberty. But fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights. Indeed, in recasting plaintiffs' invocation of their fundamental right to marry as a request for recognition of a "new" right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake. In Lawrence v Texas (539 US 558 ), the Supreme Court warned against such error.
Lawrence overruled Bowers v Hardwick (478 US 186
), which had upheld a Georgia statute criminalizing sodomy.
In so doing, the Lawrence Court criticized Bowers for framing the
issue presented too narrowly. Declaring that " Bowers was not
correct when it was decided, and it is not correct today" (539 US
at 578), Lawrence explained that Bowers purported to analyze--
erroneously-- whether the Constitution conferred a "fundamental
right upon homosexuals to engage in sodomy" (539 US at 566
[citation omitted]). This was, however, the wrong question. The
fundamental right at issue, properly framed, was the right to
engage in private consensual sexual conduct--a right that applied
The same failure is evident here. An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it ( see Planned Parenthood of Southeastern Pa. v Casey, 505 US 833, 847  [it is "tempting . . . to suppose that the Due Process Clause protects only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified. . . . But such a view would be inconsistent with our law."]).
Notably, the result in Lawrence was not affected by the
fact, acknowledged by the Court, that there had been no long
history of tolerance for homosexuality. Rather, in holding that
"[p]ersons in a homosexual relationship may seek autonomy for
the purpose[ of making intimate and personal choices], just as
heterosexual persons do" (539 US at 574), Lawrence rejected the
notion that fundamental rights it had already identified could be
restricted based on traditional assumptions about who should be
permitted their protection. As the Court noted, "times can blind
us to certain truths and later generations can see that laws once
Simply put, fundamental rights are fundamental rights. They are not defined in terms of who is entitled to exercise them.
Instead, the Supreme Court has repeatedly held that the
fundamental right to marry must be afforded even to those who
have previously been excluded from its scope--that is, to those
whose exclusion from the right was "deeply rooted."
the twentieth century, the sheer weight of precedent accepting
Just 10 years before Loving declared unconstitutional state laws banning marriage between persons of different races, 96% of Americans were opposed to interracial marriage ( see Br. of NAACP Legal Defense and Educational Fund, Inc. as Amicus Curiae in Support of Plaintiffs, at 5). Sadly, many of the arguments then raised in support of the anti-miscegenation laws were identical to those made today in opposition to same-sex marriage ( see e.g. Kinney v Commonwealth, 71 Va [30 Gratt] 858, 869  [marriage between the races is "unnatural" and a violation of God's will]; Pace v State, 69 Ala 231, 232  ["amalgamation" of the races would produce a "degraded civilization"]; see also Lonas v State, 50 Tenn [3 Heisk] 287, 310  ["(t)he laws of civilization demand that the races be kept apart"]).
To those who appealed to history as a basis for
prohibiting interracial marriage, it was simply inconceivable
that the right of interracial couples to marry could be deemed
"fundamental." Incredible as it may seem today, during the
lifetime of every Judge on this Court, interracial marriage was
Unconstitutional infringements on the right to marry are not limited to impermissible racial restrictions. Inasmuch as the fundamental right to marry is shared by "all the State's citizens" ( Loving, 388 US at 12), the State may not, for example, require individuals with child support obligations to obtain court approval before getting married ( see Zablocki, 434 US 374). Calling Loving the "leading decision of this Court on the right to marry," Justice Marshall made clear in Zablocki that Loving
Similarly, in Turner (482 US 78), the Supreme Court determined that the right to marry was so fundamental that it could not be
"could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause. But the Court went on to hold that laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. . . . Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals" (434 US at 383-384 [internal citation omitted]).
Under our Constitution, discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples. Nor can "deeply rooted" prejudices uphold the infringement of a fundamental right ( see People v Onofre, , 51 NY2d 476, 490 1980] ["disapproval by a majority of the populace . . . may not substitute for the required demonstration of a valid basis for intrusion by the State in an area of important personal decision"]). For these reasons, the NAACP Legal Defense and Educational Fund, as amicus, contends that
"[a]lthough the historical experiences in this country of African Americans, on the one hand, and gay men and lesbians, on the other, are in many important ways quite different, the legal questions raised here and in Loving are analogous. The state law at issue here, like the law struck down in Loving, restricts an individual's right to marry the person of his or her choice. We respectfully submit that the decisions below must be reversed if this Court follows the reasoning of the United States Supreme Court's decision in Loving" (Br. of NAACP Legal Defense and Educational Fund, Inc. as Amicus Curiae in Support of Plaintiffs, at 3-4; see also Br. of New York County Lawyers' Association and National Black Justice Coalition as Amici Curiae in Support of Plaintiffs [detailing history of anti-miscegenation laws and public attitudes toward interracial marriage]).
It is no answer that same-sex couples can be excluded
from marriage because "marriage," by definition, does not include
The claim that marriage has always had a single and
unalterable meaning is a plain distortion of history. In truth,
the common understanding of "marriage" has changed dramatically
over the centuries ( see Br. of Professors of History and Family
Law as Amici Curiae in Support of Plaintiffs). Until well into
the nineteenth century, for example, marriage was defined by the
doctrine of coverture, according to which the wife's legal
identity was merged into that of her husband, whose property she
became. A married woman, by definition, could not own property
and could not enter into contracts.
Such was the very "meaning"
of marriage. Only since the mid-twentieth century has the
institution of marriage come to be understood as a relationship
between two equal partners, founded upon shared intimacy and
mutual financial and emotional support. Indeed, as amici
professors note, "The historical record shows that, through
That restrictions on same-sex marriage are prevalent cannot in itself justify their retention. After all, widespread public opposition to interracial marriage in the years before Loving could not sustain the anti-miscegenation laws. "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice" ( Lawrence, 539 US at 577-578 [internal quotation marks and citation omitted]; see also id. at 571 [fundamental right to engage in private consensual sexual conduct extends to homosexuals, notwithstanding that "for centuries there have been powerful voices to condemn homosexual conduct as immoral"]). The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.
By virtue of their being denied entry into civil
marriage, plaintiff couples are deprived of a number of statutory
benefits and protections extended to married couples under New
York law. Unlike married spouses, same-sex partners may be
denied hospital visitation of their critically ill life partners.
They must spend more of their joint income to obtain equivalent
Correctly framed, the question before us is not whether
the marriage statutes properly benefit those they are intended to
benefit--any discriminatory classification does that--but whether
there exists any legitimate basis for excluding those who are not
covered by the law. That the language of the licensing statute
does not expressly reference the implicit exclusion of same-sex
couples is of no moment ( see Domestic Relations Law § 13
["persons intended to be married" must obtain a marriage
license]). The Court has, properly, construed the statutory
scheme as prohibiting same-sex marriage. That being so, the
statute, in practical effect, becomes identical to--and, for
purposes of equal protection analysis, must be analyzed as if it
were--one explicitly providing that "civil marriage is hereby
On three independent grounds, this discriminatory classification is subject to heightened scrutiny, a test that defendants concede it cannot pass.
Homosexuals meet the constitutional definition of a suspect class, that is, a group whose defining characteristic is "so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy--a view that those in the burdened class are not as worthy or deserving as others" ( Cleburne, 473 US at 440). Accordingly, any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest ( see e.g. Alevy v Downstate Med. Ctr., , 39 NY2d 326, 332 ; Matter of Aliessa v Novello, , 96 NY2d 418, 431 ).
"No single talisman can define those groups likely to
be the target of classifications offensive to the Fourteenth
Amendment and therefore warranting heightened or strict scrutiny"
( Cleburne, 473 US at 472 n 24 [Marshall, J., concurring in the
judgment in part and dissenting in part]). Rather, such scrutiny
is to be applied when analyzing legislative classifications
involving groups who "may well be the target of the sort of
Although no single factor is dispositive, the Supreme Court has generally looked to three criteria in determining whether a group subject to legislative classification must be considered "suspect." First, the Court has considered whether the group has historically been subjected to purposeful discrimination. Homosexuals plainly have been, as the Legislature expressly found when it recently enacted the Sexual Orientation Non-Discrimination Act (SONDA), barring discrimination against homosexuals in employment, housing, public accommodations, education, credit and the exercise of civil rights. Specifically, the Legislature found
"that many residents of this state have encountered prejudice on account of their sexual orientation, and that this prejudice has severely limited or actually prevented access to employment, housing and other basic necessities of life, leading to deprivation and suffering. The legislature further recognizes that this prejudice has fostered a general climate of hostility and distrust, leading in some instances to physical violence against those perceived to be homosexual or bisexual" (L 2002, ch 2, § 1; see also Br. of Parents, Families & Friends of Lesbians and Gays, Inc., et al. as Amici Curiae in Support of Plaintiffs, at 22-49 [detailing history of state-sanctioned discrimination against gays and lesbians]).
Second, the Court has considered whether the trait used
to define the class is unrelated to the ability to perform and
participate in society. When the State differentiates among its
citizens "on the basis of stereotyped characteristics not truly
Third, the Court has taken into account the group's relative political powerlessness. Defendants contend that classifications based on sexual orientation should not be afforded heightened scrutiny because, they claim, homosexuals are sufficiently able to achieve protection from discrimination through the political process, as evidenced by the Legislature's passage of SONDA in 2002. SONDA, however, was first introduced in 1971. It failed repeatedly for 31 years, until it was finally enacted just four years ago. Further, during the Senate debate on the Hate Crimes Act of 2000, one Senator noted that "[i]t's no secret that for years we could have passed a hate-crimes bill if we were willing to take out gay people, if [we] were willing to take out sexual orientation" (New York State Senate Debate on Senate Bill S 4691-A, June 7, 2000, at 4609 [Statement of Sen. Schneiderman]; accord id. at 4548-4549 [Statement of Sen. Connor]). The simple fact is that New York has not enacted anything approaching comprehensive statewide domestic partnership protections for same-sex couples, much less marriage or even civil unions.
In any event, the Supreme Court has never suggested
that racial or sexual classifications are not (or are no longer)
subject to heightened scrutiny because of the passage of even
Nor is plaintiffs' claim legitimately answered by the
argument that the licensing statute does not discriminate on the
basis of sexual orientation since it permits homosexuals to marry
persons of the opposite sex and forbids heterosexuals to marry
persons of the same sex. The purported "right" of gays and
lesbians to enter into marriages with different-sex partners to
whom they have no innate attraction cannot possibly cure the
constitutional violation actually at issue here. "The right to
marry is the right of individuals, not of . . . groups" ( Perez v
Sharp, 32 Cal 2 711, 716, 198 P2d 17, 20 ). "Human beings
are bereft of worth and dignity by a doctrine that would make
them as interchangeable as trains" ( id. at 725 198 P2d at 25).
Limiting marriage to opposite-sex couples undeniably restricts
gays and lesbians from marrying their chosen same-sex partners
The exclusion of same-sex couples from civil marriage also discriminates on the basis of sex, which provides a further basis for requiring heightened scrutiny. Classifications based on sex must be substantially related to the achievement of important governmental objectives ( see e.g. Craig v Boren, 429 US 190, 197 ), and must have an "exceedingly persuasive justification" ( Mississippi Univ. for Women v Hogan, 458 US 718, 724  [citations omitted]).
Under the Domestic Relations Law, a woman who seeks to
marry another woman is prevented from doing so on account of her
sex--that is, because she is not a man. If she were, she would
be given a marriage license to marry that woman. That the
statutory scheme applies equally to both sexes does not alter the
conclusion that the classification here is based on sex. The
"equal application" approach to equal protection analysis was
expressly rejected by the Supreme Court in Loving: "[W]e reject
the notion that the mere 'equal application' of a statute
"Equality of treatment and the due process right to
demand respect for conduct protected by the substantive guarantee
of liberty are linked in important respects, and a decision on
the latter point advances both interests" ( Lawrence, 539 US at
575). Because, as already discussed, the legislative
classification here infringes on the exercise of the fundamental
right to marry, the classification cannot be upheld unless it is
necessary to the achievement of a compelling state interest ( see
Onofre, 51 NY2d at 492 n 6; Alevy, 39 NY2d at 332; Eisenstadt v
Baird, 405 US 438, 447 n 7 ). "[C]ritical examination of
the state interests advanced in support of the classification is
Although the classification challenged here should be analyzed using heightened scrutiny, it does not satisfy even rational-basis review, which requires that the classification "rationally further a legitimate state interest" ( Affronti v Crosson, , 95 NY2d 713, 718 , cert denied sub nom. Affronti v Lippman, 534 US 826 ). Rational-basis review requires both the existence of a legitimate interest and that the classification rationally advance that interest. Although a number of interests have been proffered in support of the challenged classification at issue, none is rationally furthered by the exclusion of same-sex couples from marriage. Some fail even to meet the threshold test of legitimacy.
Properly analyzed, equal protection requires that it be
the legislated distinction that furthers a legitimate state
interest, not the discriminatory law itself ( see e.g. Cooper, 49
NY2d at 78; Romer v Evans, 517 US 620, 633 ). Were it
otherwise, an irrational or invidious exclusion of a particular
group would be permitted so long as there was an identifiable
group that benefitted from the challenged legislation. In other
words, it is not enough that the State have a legitimate interest
Defendants primarily assert an interest in encouraging procreation within marriage. But while encouraging opposite-sex couples to marry before they have children is certainly a legitimate interest of the State, the exclusion of gay men and lesbians from marriage in no way furthers this interest. There are enough marriage licenses to go around for everyone.
Nor does this exclusion rationally further the State's
legitimate interest in encouraging heterosexual married couples
to procreate. Plainly, the ability or desire to procreate is not
a prerequisite for marriage. The elderly are permitted to marry,
and many same-sex couples do indeed have children. Thus, the
statutory classification here--which prohibits only same-sex
couples, and no one else, from marrying--is so grossly
underinclusive and overinclusive as to make the asserted
rationale in promoting procreation "impossible to credit" ( Romer,
517 US at 635).
Indeed, even the Lawrence dissenters observed
Of course, there are many ways in which the government could rationally promote procreation--for example, by giving tax breaks to couples who have children, subsidizing child care for those couples, or mandating generous family leave for parents. Any of these benefits--and many more--might convince people who would not otherwise have children to do so. But no one rationally decides to have children because gays and lesbians are excluded from marriage.
In holding that prison inmates have a fundamental right
to marry--even though they cannot procreate--the Supreme Court
has made it clear that procreation is not the sine qua non of
marriage. "Many important attributes of marriage remain . . .
after taking into account the limitations imposed by prison
life . . . . [I]nmate marriages, like others, are expressions of
emotional support and public commitment. These elements are an
important and significant aspect of the marital relationship"
( Turner, 482 US at 95-96). Nor is there any conceivable rational
Marriage is about much more than producing children, yet same-sex couples are excluded from the entire spectrum of protections that come with civil marriage--purportedly to encourage other people to procreate. Indeed, the protections that the State gives to couples who do marry--such as the right to own property as a unit or to make medical decisions for each other--are focused largely on the adult relationship, rather than on the couple's possible role as parents. Nor does the plurality even attempt to explain how offering only heterosexuals the right to visit a sick loved one in the hospital, for example, conceivably furthers the State's interest in encouraging opposite-sex couples to have children, or indeed how excluding same-sex couples from each of the specific legal benefits of civil marriage--even apart from the totality of marriage itself--does not independently violate plaintiffs' rights to equal protection of the laws. The breadth of protections that the marriage laws make unavailable to gays and lesbians is "so far removed" from the State's asserted goal of promoting procreation that the justification is, again, "impossible to credit" ( Romer, 517 US at 635).
The State plainly has a legitimate interest in the welfare of children, but excluding same-sex couples from marriage in no way furthers this interest. In fact, it undermines it. Civil marriage provides tangible legal protections and economic benefits to married couples and their children, and tens of thousands of children are currently being raised by same-sex couples in New York. Depriving these children of the benefits and protections available to the children of opposite-sex couples is antithetical to their welfare, as defendants do not dispute ( see e.g. Baker v State, 170 Vt 194, 219, 744 A2d 864, 882 1999] ["(i)f anything, the exclusion of same-sex couples from the legal protections incident to marriage exposes their children to the precise risks that the State argues the marriage laws are designed to secure against" (emphasis in original)]; cf. Matter of Jacob, , 86 NY2d 651, 656  ["(t)o rule otherwise would mean that the thousands of New York children actually being raised in homes headed by two unmarried persons could have only one legal parent, not the two who want them"]). The State's interest in a stable society is rationally advanced when families are established and remain intact irrespective of the gender of the spouses.
Nor may the State legitimately seek either to promote
heterosexual parents over homosexual parents, as the plurality
posits, or to discourage same-sex parenting. First, granting
such a preference to heterosexuals would be an acknowledgment of
purposeful discrimination against homosexuals, thus constituting
The government cannot legitimately justify
discrimination against one group of persons as a mere desire to
That civil marriage has traditionally excluded same-sex
couples--i.e., that the "historic and cultural understanding of
marriage" has been between a man and a woman--cannot in itself
provide a rational basis for the challenged exclusion. To say
that discrimination is "traditional" is to say only that the
The State asserts an interest in maintaining uniformity
with the marriage laws of other states. But our marriage laws
currently are not uniform with those of other states. For
example, New York--unlike most other states in the nation--
permits first cousins to marry ( see Domestic Relations Law § 5).
It is, additionally, already impossible to maintain uniformity among all the states, inasmuch as Massachusetts has now legalized same-sex marriage. Indeed, of the seven jurisdictions that border New York State, only Pennsylvania currently affords no legal status to same-sex relationships. Massachusetts, Ontario and Quebec all authorize same-sex marriage; Vermont and Connecticut provide for civil unions ( see 15 Vt Stat Ann tit 15, § 1204 [a]; Conn Gen Stat § 46b-38nn); and New Jersey has a statewide domestic partnership law ( see NJ Stat Ann § 26:8A-1 et seq.). Moreover, insofar as a number of localities within New York offer domestic partnership registration, even the law within the State is not uniform. Finally, and most fundamentally, to justify the exclusion of gay men and lesbians from civil marriage because "others do it too" is no more a justification for the discriminatory classification than the contention that the discrimination is rational because it has existed for a long time. As history has well taught us, separate is inherently unequal.
The Court ultimately concludes that the issue of same-
sex marriage should be addressed by the Legislature. If the
The fact remains that although a number 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 NY Senate-Assembly Bill S 5156, A 7463; 2005 NY Assembly Bill A 1823; 2003 NY Senate Bill S 3816; 2003 NY Assembly Bill A 7392; 2001 NY Senate Bill S 1205; see also 2005 NY Senate-Assembly Bill S 1887-A, A 3693-A [proposing establishment of domestic partnerships]; 2004 NY Senate-Assembly Bill S 3393-A, A 7304-A [same]).
It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court's duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.
I am confident that future generations will look back on today's decision as an unfortunate misstep.
1 Eight years after Cooper was decided, the U.S. Supreme Court strengthened the federal test for assessing the efficacy of prison regulations that implicate fundamental rights, requiring the state to show that the restriction is reasonably related to a legitimate security or penological interest and is not an "exaggerated response" to such interests ( see Turner v Safley, 482 US 78, 90 ).
2 Plaintiffs cite Crosby v State of N.Y., Worker's Compensation Board (57 2 305, 312 ) and People v Shepard (50 2 640, 644 ) for the proposition that the right to marry encompasses the unqualified right to marry the spouse of one's choice. But, in resolving controversies unrelated to the right to marry, those cases did not analyze the fundamental marriage right but merely cited Loving when including marriage in a list of rights that have received constitutional protection.
3 Of course, the rights and responsibilities attendant marriage have changed over time and there have always been differences between the states concerning the legal incidents of marriage, including differing age restrictions, consanguinity provisions and, unfortunately, some states -- although not New York -- once had anti-miscegenation laws. With the exception of the recent extension of marriage to same-sex couples by the Supreme Judicial Court of Massachusetts ( see Opinions of the Justices to the Senate, 440 Mass 1201 , clarifying Goodridge, 440 Mass 309), the one element common to the institution across the nation and despite the passage of time has been its definition as a union between one man and one woman. This is how marriage is defined in the Federal Defense of Marriage Act (Pub L 104 110 Stat 2419; see 1 USC § 7), which provides that no state "shall be required to give effect to any public act, record, or judicial proceeding of any other State . . . respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State" (28 USC § 1738C).
4 Four years after Loving, the Minnesota Supreme Court upheld Minnesota's marriage laws in the face of a challenge brought by same-sex couples ( Baker v Nelson, 291 Minn 310 , app dismissed 409 US 810 ). The Court rejected the argument that the Federal Due Process Clause encompassed a right to marry that extended to same-sex couples, noting that in Loving and its other privacy cases the U.S. Supreme Court had recognized that "[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis" ( id. at 312). The U.S. Supreme Court summarily dismissed the appeal "for want of a substantial federal question" (409 US 810 ). Under Supreme Court decisional law, as far as lower courts are concerned, "summary dismissals are . . . to be taken as rulings on the merits . . . in the sense that they rejected the specific challenges presented in the statement of jurisdiction and left undisturbed the judgment appealed from" ( Washington v Confed. Bands & Tribes of Yakim Indian Nation, 439 US 463, 477 n 20 [internal quotation marks and citation omitted] ) and "lower courts are bound by summary decisions . . . until such time as the [Supreme] Court informs them that they are not" ( Hicks v Miranda, 422 US 332, 344-345  [internal quotation marks and citations omitted]). Thus, with respect to the Federal Due Process Clause, we must presume that Loving did not expand the fundamental right to marry in the manner suggested by plaintiffs in the cases before us. This observation does not, however, preclude this Court from interpreting the New York State Due Process Clause more expansively.
5 Such disparate impact claims are usually brought under civil rights statutes that authorize them, such as the New York City Human Rights Law ( see e.g. Levin v Yeshiva Univ., , 96 NY2d 484 ).
6 In other contexts, this Court has also recognized that due process rights must be afforded to all, even as against a history of exclusion of one group or another from past exercise of these rights ( see e.g. Matter of Raquel Marie X., , 76 NY2d 387, 397  [affording the right to custody of one's children to unwed fathers, despite a long history of excluding unwed fathers from that right]; Rivers v Katz, , 67 NY2d 485, 495-496 1986] [affording the right to refuse medical treatment to the mentally disabled, despite a long history of excluding the mentally ill from that right]).
7 Moreover, until as recently as 1984, a husband could not be prosecuted for raping his wife ( see People v Liberta, , 64 NY2d 152 ).
8 Indeed, the true nature and extent of the discrimination suffered by gays and lesbians in this regard is perhaps best illustrated by the simple truth that each one of the plaintiffs here could lawfully enter into a marriage of convenience with a complete stranger of the opposite sex tomorrow, and thereby immediately obtain all of the myriad benefits and protections incident to marriage. Plaintiffs are, however, denied these rights because they each desire instead to marry the person they love and with whom they have created their family.
9 Although the plurality asserts that the Legislature could not possibly exclude from marriage opposite-sex couples unable to have children because to do so would require "grossly intrusive inquiries" (plurality op at 16), no explanation is given as to why the Legislature could not easily remedy the irrationality inherent in allowing all childless couples to marry--if, as the plurality believes, the sole purpose of marriage is procreation -- by simply barring from civil marriage all couples in which both spouses are older than, say, 55. In that event, the State would have no need to undertake intrusive inquiries of any kind.
10 Nor could the State have a legitimate interest in privileging some children over others depending on the manner in which they were conceived or whether or not their parents were married ( see Jacob, 86 NY2d at 667 [depriving children of legal relationship with de facto parents "based solely on their biological mother's sexual orientation or marital status . . . raise[s] constitutional concerns"]; Levy v Louisiana, 391 US 68, 71  [child born out of wedlock may not be denied rights enjoyed by other citizens]).
11 Ultimately, as the Lawrence dissenters recognized, "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same- sex couples" (539 US at 601 [Scalia, J., dissenting] [emphasis in original]), an illegitimate basis for depriving gay and lesbian couples of the equal protection of the laws.<& /nyctap/inclusions/footer.htm &>