Berger v. Adornato
| Decision Date | 21 November 1973 |
| Citation | 350 N.Y.S.2d 520,76 Misc.2d 122 |
| Parties | In the Matter of Frederick E. BERGER and Linda Condolora, Petitioners, v. Louis F. ADORNATO, as City Clerk of the City of Syracuse, Respondent. |
| Court | New York Supreme Court |
Petitioners seek an order directing the City Clerk of Syracuse to issue a marriage license. The Clerk is not authorized to issue a license because the petitioner Frederick E. Berger is twenty years old, and his parents refuse to give their consent to the marriage as is required under Section 15 subd. 2 of the Domestic Relations Law. Petitioner contends that subdivision 2 of Section 15 is unconstitutional because it violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. He argues that the statute does not come under the recognized exception to the clause, and that there is no compelling justification for the statute.
Section 15(2) establishes a different age standard for marriage between males and females. A female may marry at age 18 without parental consent, while a male may not marry without such consent until he reaches age 21. The constitutionality of this statute was considered in Matter of Friedrich v. Katz, 73 Misc.2d 663, 341 N.Y.S.2d 932 (1973) and upheld. The court felt that the presumption of constitutionality was not overcome (8 N.Y.Juris. Constitutional Law § 79, Lincoln Bldg. Assoc. v. Barr, 1 N.Y.2d 413, 418, 153 N.Y.S.2d 633, 637, 135 N.E.2d 801, 804).
'--in the presence of a legitimate state interest in the marriage relation and the reasonably conceivable fact that the male will be the provider * * * there is a rational basis for the State to provide safeguards * * *'. 73 Misc.2d at p. 665, 341 N.Y.S.2d at p. 935.
Justice Mangan observed that differing age requirements for marriage are 'ancient rule, time-honored, and the public policy of this State and much of the Nation'. (p. 664, 341 N.Y.S.2d p. 934) She argued that 'natural order, taught both by history and reason, designates the male as provider--'. She concluded, (p. 665, 341 N.Y.S.2d p. 934) 'That duty * * * is sufficient reason to require males to be older * * * before they may independently decide to marry'.
The right to marry is fundamental to the existence and survival of the race, Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655, and is 'one of the basic civil rights'. Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1824, 18 L.Ed.2d 1010; Maynard v. Hill, 125 U.S. 190, 8 S.Ct. 723, 31 L.Ed. 654. It is a right of such vital public interest, that it is subject to state regulation, but is limited by the 'commands of the Fourteenth Amendment'. Loving v. Virginia, 388 U.S. 1, at p. 7, 87 S.Ct. 1817, at p. 1821, 18 L.Ed.2d 1010. It is 'established doctrine' that the liberty guaranteed by the Fourteenth Amendment carries with it not only freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to marry, establish a home and bring up children and to enjoy those privileges essential to the orderly pursuit of happiness of free men. Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042.
'This liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect'. Ibid. 262 U.S. pp. 399, 400, 43 S.Ct. p. 627.
In Friedrich v. Katz, supra, the court found that there was a vital public end which justified the discrimination. Assuming arguendo, that this conclusion is accurate, the statute must fail because it is arbitrary in that it does not provide for equal treatment for all members of the affected class.
It is the responsibility of the legislature to respond to the political needs and requirements of its constituent. It may pass discriminatory legislation, but it must have an 'appropriate relation to the object of the legislation'. Railway Express v. New York, 336 U.S. 106, 115, 69 S.Ct. 463, 468, 93 L.Ed. 533. There may be valid state ends served by restricting the marriages of young males, but 'a desirable end cannot be promoted by prohibited means'. Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.Ct. 625, 627, 67 L.Ed. 1042; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90. The discrimination must rest upon some ground of difference related to the end of the legislation and must have some assurances 'so that all persons similarly circumstanced shall be treated alike'. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989; Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225; Matter of Patricia A., 31 N.Y.2d 83, 88, 335 N.Y.S.2d 33, 37, 286 N.E.2d 432, 434.
It is here that Section 15(2) falls short. There is no guarantee of 'alike treatment' to all those in the classification. The burden of fulfilling the state need is assigned to the parents. There are no safeguards, guidelines, limitations or assurances that the parents will perform their responsibility within the framework of the allegedly valid state objective. There is no provision for judicial review, since the authority of the parents is unrestricted, and, therefore, final.
Thus, the parents may use their authority to act on behalf of the state interest. Or, they may do whatever they please. What can result is exactly what has occurred in this case. A mature, emancipated man is denied a fundamental right on what appear to be arbitrary grounds wholly unrelated to the alleged state purpose. As a result within the statutory authority of Section 15(2), at least one member of the affected class has been denied 'alike treatment' which the statute must guarantee. Yick Wo v. Hopkins, 118 U.S. 356, 359, 6 S.Ct. 1064, 30 L.Ed. 220.
It may well be a denial of procedural due process. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25...
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Moe v. Dinkins
...without subject matter jurisdiction, "even were (consent) shown to be unreasonably withheld or refused ...." In Berger v. Adornato, 76 Misc.2d 122, 350 N.Y.S.2d 520 (Sup.Ct.1973), an under-age male whose parents would not consent challenged the constitutionality of an earlier version of the......