NYS Gay Marriage Setback

Albany intermediate appellate panel rejects three upstate cases; points to Legislature as recourse

Insisting that “the Legislature is where changes to marriage of the nature urged by plaintiffs should be addressed,” a unanimous five-judge panel of the New York Appellate Division for the 3rd Department, based in Albany, rejected a constitutional challenge to the denial of marriage to same-sex couples in New York on February 16.

This ruling can still be appealed to the Court of Appeals, the state’s highest.

The court was ruling on an appeal by the ACLU on behalf of same-sex couples who sued after being denied marriage licenses. Two other cases, in which gay and lesbian couples also sued for the right to marry and were represented by other counsel, were also decided in the court’s ruling. The plaintiffs claimed that denial of the right to marry violates state constitutional rights of due process of law, equal protection, and freedom of speech.

They were not challenging prior rulings holding that the state’s Domestic Relations Law cannot be interpreted to allow same-sex marriage, a point that has been rejected by all prior courts that considered it, even though some legal analysts have concluded otherwise.

The decisive issue for the court, as Justice John A. Lahtinen explained in his opinion, was the standard of judicial review to be used in the case. Whether proceeding on a due process theory that the right to marry is a fundamental right, or the equal protection theory that the law discriminates on the basis of gender or sexual orientation, the big issue is whether the court will put the burden on the government to justify the law, or whether the burden will be placed on the plaintiffs to prove that the law as it now exists is not supported by any rational justification.

Also particularly important for this court is whether there is any strong reason to depart from the precedents established in prior cases, including recent rulings by the Appellate Division in the 1st and 2nd Departments. As Lahtinen noted, the 1st Department recently ruled against a same-sex marriage claim in Lambda Legal’s case against the New York City clerk, Hernandez v. Robles, and the 2nd Department also ruled recently, in Langan v. St. Vincent’s Hospital, that there is no constitutional violation in refusing to let a surviving Vermont civil union partner bring a wrongful death action, an action generally limited to a legal spouse or other relation. In the course of its Langan decision, the 2nd Department raised and rejected the notion that denying same-sex couples the right to marry violates the state Constitution.

Perhaps most importantly in terms of precedent, the 3rd Department recently rejected a constitutional challenge to the failure of the Workers Compensation Board to award survivor’s benefits to the same-sex partner of a flight attendant who died in an airplane disaster shortly after September 11, 2001, concluding that not treating surviving same-sex domestic partners as equal to spouses does not violate the state Constitution’s equality requirements. Ruling in favor of the plaintiffs in this case would be logically inconsistent with that recent decision.

Turning first to the due process argument, Lahtinen emphasized the reluctance of courts to recognize new due process rights. While admitting that it is well established in federal and state constitutional law that marriage is a “fundamental right,” Lahtinen argued that every case recognizing such a right has done so in the context of one man and one woman.

“We find merit in defendants’ assertion that this case is not simply about the right to marry the person of one’s choice,” he wrote, “but represents a significant expansion into new territory which is, in reality, a redefinition of marriage. The cornerstone cases acknowledging marriage as a fundamental right are laced with language referring to the ancient recognized nature of that institution, specifically tying part of its critical importance to its role in procreation and, thus, to the union of a woman and a man.”

Lahtinen contended that “to remove from ‘marriage’ a definitional component of that institution (i.e., one woman, one man) which long predates the constitutions of this country and state would, to a certain extent, extract some of the ‘deep roots’ that support its elevation to a fundamental right.”

In other words, according to this reasoning, it is the procreative component of marriage that makes the right to marry so fundamental in our legal tradition.

Consequently, Lahtinen concluded that same-sex marriage is different enough from traditional marriage to fall outside the sphere of “fundamental rights.” As a result, the level of judicial review is termed “rational basis,” which is relatively deferential to the existing law. Under rational basis review, any plausible justification for the law will be accepted.

Turning to the equal protection argument, Lahtinen found that existing precedents solidly established that the level of review of a sexual orientation discrimination claim is “rational basis” review, referring to numerous federal and New York cases, including the 3rd Department’s recent decision in the Workers Compensation case resulting from the 2001 airline crash, Valentine v. American Airlines. He rejected the contention that this was really a sex discrimination claim.

The state provided three arguments in support of the constitutionality of the existing marriage law: “preserving the historic legal and cultural understanding of marriage; recognizing heterosexual marriage as a social institution in which procreation occurs; and conforming with the current legal landscape nationwide.”

Lahtinen noted that in her concurring opinion in Lawrence v. Texas, the Supreme Court’s 2003 sodomy law decision, Justice Sandra Day O’Connor had stated that “preserving the traditional institution of marriage” would be a rational basis for denying the right to marry to same-sex couples, and that the opinion for the Supreme Court by Justice Anthony M. Kennedy, Jr., made clear that the Court was not deciding in that case whether the government had to extend formal legal recognition to same-sex relationships.

Rejecting the plaintiffs’ reliance on Loving v. Virginia, in which the Supreme Court invalidated a state ban against interracial marriage in 1967, Lahtinen argued that Loving was really about race discrimination, and under the Constitution any law setting up a racial classification is presumed unconstitutional.

By contrast, he noted, the federal government has legislated against same-sex marriage in the Defense of Marriage Act (DOMA), and more than 40 states—but not New York—have specifically legislated against it in the so-called “mini-DOMAs” as well as more than a dozen state constitutional amendments. Consequently, he concluded that it would be difficult to reject the legitimacy of this justification.

Turning to the procreation issue, Lahtinen seized upon a rationale that the Indiana Supreme Court embraced last year in its rejection of a same-sex marriage case—that because only opposite-sex couples are capable of procreation “on their own by engaging in sex with little or no contemplation of the consequences that might result, i.e., a child,” the state could seek to encourage “responsible” procreation by making marriage available to such couples.

“The institution of opposite-sex marriage both encourages such couples to enter into a stable relationship before having children and to remain in such a relationship if children arrive during the marriage unexpectedly,” said the Indiana court in a passage Lahtinen quotes in his opinion.

Lahtinen noted that plenty of evidence for and against this argument had been presented to the court, but “the Legislature is the better forum for sorting through this type of conflicting data on an important social issue.”

Interestingly, Lahtinen commented that the evidence plaintiffs submitted concerning the realities of family life for same-sex couples, including that many are raising children, that modern reproductive technology makes it possible for same-sex couples to have children through donor insemination and surrogacy, that same-sex couples are allowed to adopt children in New York, and so forth, would possibly tip the decision the other way if this was not a “rational basis” case, leaving open the possibility that were the Court of Appeals to determine that some form of heightened judicial review were appropriate in this case, the plaintiffs might win it.

However—and this point is critical—an intermediate appellate court is not so free to depart from existing precedent.

Lahtinen rejected the contention that the existing marriage law violates the free speech rights of same-sex couples. While acknowledging that the act of marriage has expressive content, he adopted the view expressed in some other recent cases that this was not sufficient to bring it within the core of First Amendment free speech case law.

“This state’s laws defining marriage are general in nature and do not target any speech or expressive conduct,” he wrote, concluding, “The Legislature acted consistent with its constitutional role, and the parameters that it placed on marriage are undergirded by sufficient governmental interests to uphold marriage as historically understood and defined.”

The unanimity of the decision was surprising, since at oral argument many observers thought that the questioning by the justices reflected the possibility that some of them might rule for the plaintiffs. The unanimous decision is a reminder of the risks of over-interpreting such questioning as indicating how a judge will ultimately rule on the merits of a case.

In any event, in light of the existing body of appellate precedent in New York State, the negative result is not all that surprising.

Roberta Kaplan, a partner at the firm of Paul, Weiss, Rifkind Wharton & Garrison who argued the case for the ACLU, made the same point to the press that Lambda Legal made several weeks ago when the 1st Department decision was issued: “As we’ve known all along, this issue will ultimately be decided by New York’s highest court.”

The ACLU immediately announced it will appeal to the Court of Appeals, which is already set to consider an appeal of Lambda Legal’s case from the 1st Department. One remaining sex-sex marriage lawsuit in the state awaits an Appellate Division ruling. Most likely the Court of Appeals will end up consolidating all the cases for joint consideration.