Hernandez v. Robles

• Decision Date: 08 December 2005
• Docket Number: 6599.,6598.
• Citation: 26 A.D.3d 98,805 N.Y.S.2d 354,2005 NY Slip Op 09436
• Parties: DANIEL HERNANDEZ et al., Respondents, v. VICTOR L. ROBLES, as City Clerk of the City of New York, Appellant.
• Court: New York Supreme Court — Appellate Division

26 A.D.3d 98

805 N.Y.S.2d 354

2005 NY Slip Op 09436

DANIEL HERNANDEZ et al., Respondents, v. VICTOR L. ROBLES, as City Clerk of the City of New York, Appellant.

6598.

6599.

Appellate Division of the Supreme Court of the State of New York, First Department.

December 8, 2005.

APPEAL from an order and judgment of the Supreme Court, New York County (Doris Ling-Cohan, J.), entered February 7, 2005. The order and judgment granted plaintiffs' motion for summary judgment and denied defendant's cross motion for summary judgment; declared that certain provisions of the Domestic Relations Law relating to marriage were unconstitutional; declared that the words "husband," "wife," "groom" and "bride" as they appeared in the relevant sections of the Domestic Relations Law were construed to apply equally to either men or women, and permanently enjoined defendant from denying a marriage license to any couple solely on the ground that the two persons in that couple were of the same sex.

Hernandez v. Robles, 7 Misc 3d 459, reversed.

Michael A. Cardozo, Corporation Counsel, New York City (Leonard Koerner, Marilyn Richter and Ronald E. Sternberg of counsel), for appellant.

Lambda Legal Defense and Education Fund, New York City (Susan L. Sommer, David S. Buckel and Alphonso David of counsel), and Kramer Levin Naftalis & Frankel LLP, New York City (Jeffrey S. Trachtman and Norman C. Simon of counsel), for respondents.

Whiteman, Osterman & Hanna LLP, Albany (Michael Whiteman and Heather D. Diddel of counsel); Jenner & Block LLP, Washington, DC (William M. Hohengarten and Paul M. Smith of counsel); American Psychological Association, Washington, DC (Nathalie F.P. Gilfoyle of counsel); and National Association of Social Workers, Washington, DC (Carolyn I. Polowy and Sherri Morgan of counsel), for American Psychological Association and others, amici curiae.

Simpson Thacher & Bartlett LLP, New York City (Joseph F. Tringali, Robert J. Pfister and Paul A. Saso of counsel), for Asian American Legal Defense and Education Fund and others, amici curiae.

Jay Weiser, New York City (Kate Webber, Robert H. Cohen, Kristin Bebelaar and Alvan L. Bobrow of counsel), for The Association of the Bar of the City of New York; Bruce J. Wagner, Albany, for American Academy of Matrimonial Lawyers-New York Chapter; William D. Frumkin, New York City, for National Employment Lawyers Association/New York; Richard M. Wallace, Ithaca, for Tompkins County Bar Association; and Tara Rice, New York City, for The Lesbian, Gay, Bisexual and Transgender Law Association of Greater New York, amici curiae.

Liberty Counsel, Longwood, Florida (Rena M. Lindevaldsen and Mathew D. Staver of counsel), and American Center for Law & Justice, New Milford, Connecticut (Vincent P. McCarthy and Kristina J. Wenberg of counsel), for Ruben Diaz and others, amici curiae.

Cravath, Swaine & Moore LLP, New York City (Gary A. Bornstein of counsel), and Empire State Pride Agenda, Albany (Ross D. Levi of counsel), for Empire State Pride Agenda and others, amici curiae.

Alliance Defense Fund, Scottsdale, Arizona (Byron Babione, Benjamin W. Bull, Glen Lavy, Randall Wenger and Dale Schowengerdt of counsel), for Family Research Counsel, amicus curiae.

Norman L. Reimer, New York City (Ivan J. Dominguez, Kathryn Shreeves and Jean M. Swieca of counsel), for New York County Lawyers' Association; H. Alexander Robinson, Washington, DC, for National Black Justice Coalition; and Nadine C. Johnson, New York City (Cornett L. Lewers of counsel), for Metropolitan Black Bar Association, amici curiae.

Richard E. Barnes, Albany, and Paul Benjamin Linton, Northbrook Illinois, for New York State Catholic Conference, amicus curiae.

Debevoise & Plimpton LLP, New York City (Kristin D. Kiehn, Eliza M. Sporn and Jennifer E. Spain of counsel), for Parents, Families & Friends of Lesbians and Gays, Inc., and others, amici curiae.

Suzanne B. Goldberg, New York City; Arnold & Porter LLP, New York City (Robert C. Mason and Dorothy N. Giobbe of counsel); and Arnold & Porter LLP, Washington, DC (Helene B. Madonick, Jennifer S. Brannan, Leslie M. Hill and Lisa Adelson of counsel), for Professors of History and Family Law, amici curiae.

Marriage Law Foundation, Provo, Utah (William C. Duncan and Monte N. Stewart of counsel), and Adam Anderson, New York City, for United Families International, amicus curiae.

Willkie Farr & Gallagher LLP, New York City (Martin Klotz, Yuriko Tada and Suzanne C. Hess of counsel), for Women's Bar Association of the State of New York and others, amici curiae.

Fried, Frank, Harris, Shriver & Jacobson LLP, New York City (Bonnie Steingart, Jonathan F. Lewis, Jennifer L. Colyer, Edward J. Jacobs and Tico A. Almeida of counsel), for Religious Organizations and others, amici curiae.

OPINION OF THE COURT

WILLIAMS, J.

Plaintiff same-sex couples seek to enter into civil marriage in New York City. Defendant Victor Robles, the City Clerk of the City of New York, administers the Marriage License Bureau and is responsible for issuing and recording marriage licenses and solemnizing civil marriages in New York City. In March 2004, each of the plaintiff couples applied for a marriage license at defendant's office. Their applications were denied on the ground that "New York State law does not authorize this office to grant marriage licenses to same-sex couples."

Plaintiffs brought an action in Supreme Court, New York County seeking declaratory and injunctive relief arguing that the Domestic Relations Law denies them their rights to equal protection and due process as guaranteed by the Constitution of the State of New York. They alleged that aside from the fact that they are same-sex couples, they are otherwise legally qualified to marry under New York State law. Plaintiffs eventually moved, and defendant cross-moved, for summary judgment. The court granted the motion and denied the cross motion, holding that the Domestic Relations Law violated the equal protection and due process provisions of the New York State Constitution, and that the words "husband," "wife," "bride," and "groom" as used in the relevant sections of the Domestic Relations Law should be construed to apply equally to either men or women. The court permanently enjoined defendant from denying a marriage license to any couple solely on the ground that the couple is comprised of persons of the same sex.

The court agreed with the New York State Attorney General and the Corporation Counsel of the City of New York that the Domestic Relations Law does not and was not intended to authorize same-sex marriage. It reasoned, among other things, that the fundamental right to marry, as recognized by federal and New York State due process case law, is both a liberty right and a privacy right and includes the right to choose whom one marries. Thus, the appropriate test of the Domestic Relations Law's constitutionality in this regard should be strict scrutiny, which requires that the State demonstrate a compelling state interest for the statutory classification and that the legislation be narrowly tailored to meet that interest. The court found that the asserted state interests, fostering traditional heterosexual marriage and avoiding problems raised by other jurisdictions' failure to grant comity to same-sex marriages, did not meet the test. It stated that the issue as posed by defendant, whether plaintiffs had a fundamental right to same-sex marriage, was a misstatement of the issue according to the United States Supreme Court in Lawrence v. Texas (539 US 558 [2003]).

The court also found that the Domestic Relations Law violated the Equal Protection Clause of the State Constitution in that it discriminates against plaintiffs on the basis of sexual orientation and rationally serves no legitimate state purpose. Finally the court rejected the argument that the issue of whether to permit same-sex marriage is one in which the courts should defer to the Legislature, finding that it was well within its mandate in ruling on the statute's constitutionality and that the United States Supreme Court rejected the same argument in Loving v. Virginia (388 US 1 [1967]), where it struck down an antimiscegenation law.

We find that the motion court erred in granting plaintiffs summary judgment and finding the provisions of the Domestic Relations Law unconstitutional to the extent that they do not permit same-sex marriage. However, we find it even more troubling that the court, upon determining the statute to be unconstitutional, proceeded to rewrite it and purportedly create a new constitutional right, an act that exceeded the court's constitutional mandate and usurped that of the Legislature.

As we stated in Raum v. Restaurant Assoc. (252 AD2d 369, 370 [1998], appeal dismissed 92 NY2d 946 [1998]), "[s]ince it is not within the judicial province to redefine terms given clear meaning in a statute, [a] plaintiff's sole recourse [in such instance] lies in legislative action" (citation omitted; see also Greenwald v. H & P 29th St. Assoc., 241 AD2d 307 [1997]; Matter of Cooper, 187 AD2d 128 [1993], appeal dismissed 82 NY2d 801 [1993]). Here, the relevant provisions of the Domestic Relations Law, despite the absence of an express prohibition against same-sex marriage, clearly do not contemplate such unions (2004 Ops Atty Gen No. I 2004-1, at 1005 ["the inclusion in the DRL of gender-specific terms to describe parties to a marriage, as well as the historical context of its enactment, indicates that the Legislature did not intend to authorize same-sex marriage"]). Generally, in such circumstances, "courts [should not] correct supposed . . . omissions or defects in legislation" (McKinney's Cons Laws of NY, Book 1, Statutes § 73, at 148 [1971]).

The role of the courts is "to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes" (...