Hernandez v. Robles

• Decision Date: 04 February 2005
• Docket Number: No. 103434/2004,103434/2004
• Citation: 2005 NY Slip Op 25057,794 N.Y.S.2d 579,7 Misc.3d 459
• Parties: DANIEL HERNANDEZ et al., Plaintiffs v. VICTOR L. ROBLES, as City Clerk of the City of New York, Defendant.
• Court: New York Supreme Court

7 Misc.3d 459

794 N.Y.S.2d 579

2005 NY Slip Op 25057

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

No. 103434/2004

Supreme Court, New York County.

February 4, 2005.

Kramer Levin Naftalis & Frankel, LLP, New York City (Jeffrey S. Trachtman of counsel), and Lambda Legal Defense & Education Fund, New York City (Susan Sommer of counsel), for plaintiffs.

Michael A. Cardozo, Corporation Counsel, New York City (Marilyn Richter of counsel), for defendant.

OPINION OF THE COURT

DORIS LING-COHAN, J.

From the literary references of Shakespeare's Romeo and Juliet, to the anti-miscegenation laws of this country's recent past barring interracial marriage, the freedom to choose whom to marry has consistently been the subject of public outcry and controversy. In fact, ironically, the parents of one of the named plaintiffs¹ were, themselves, barred from marrying each other by an anti-miscegenation law that made it illegal for interracial couples to marry. In 1966, in order to marry, plaintiff Curtis Woolbright's parents moved to California,² the only state at that time whose courts had declared bans on interracial marriage unconstitutional.

Thirty-eight years later, their son (Curtis Woolbright), his partner, and four other couples, bring suit to secure the fundamental right to choose one's partner in marriage. Karen Woolbright, mother of plaintiff Curtis Woolbright, understands from her own experience a generation ago what this means for her son:

"My son . . . and his beloved partner, Daniel Reyes, should have the right to get married for the same reasons I should have had the right to marry my husband, Curtis Woolbright Sr., in the early 1960's. My husband's home state Texas, and many other states at the time, restricted us from getting married, because he was black and I am white. There was no reason to exclude us from marriage other than fear and prejudice . . . I cannot express how important it was to get married. As a married couple, we received protections and respect for our family that were still withheld in many parts of the country to inter-racial couples . . . [G]etting married also affected my self-esteem. Looking back I can say that the first day I referred to Curt as my husband validated my relationship and my feelings for him." (Affidavit of Karen Woolbright ¶¶ 3, 9, attached to affirmation of Susan L. Sommer in support of plaintiffs' motion for summary judgment dated July 29, 2004 [plaintiffs' motion].)

An instructive lesson can be learned from the history of the anti-miscegenation laws and the court decisions which struck them down as unconstitutional. The challenges to laws banning whites and nonwhites from marriage demonstrate that the fundamental right to marry the person of one's choice may not be denied based on long-standing and deeply held traditional beliefs about appropriate marital partners.

Although anti-miscegenation laws were first enacted in colonial days, such laws were still common into the 1960's and upheld in case after case based on tradition rooted in perceived "natural" law.³ For example, the Indiana Supreme Court relied on the "undeniable fact" that the "distribution of men by race and color is as visible in the providential arrangement of the earth as that of heat and cold." (State v Gibson, 36 Ind 389, 405 [1871].) According to the Indiana Supreme Court, the laws requiring separation of the races derive not from "`prejudice, nor caste, nor injustice of any kind, but simply to suffer men to follow the law of races established by the Creator himself, and not to compel them to intermix contrary to their instincts.'" (Id., quoting West Chester & Philadelphia R.R. Co. v Miles, 55 Pa 209, 214 [1867]; see also Scott v State, 39 Ga 321, 326 [1869] ["moral or social equality between the different races . . . does not in fact exist, and never can"].)

It was not until 1948 that the first state Supreme Court rejected the reigning doctrine that laws limiting marriage to partners of the same race reflected natural law impervious to constitutional challenge. (Perez v Sharp, 32 Cal 2d 711, 198 P2d 17 [1948].) The California anti-miscegenation law prohibited marriages of "white persons" to "negroes, Mongolians, members of the Malay race, or mulattoes." (32 Cal 2d at 712, 198 P2d at 17.)

Almost two decades after the groundbreaking and controversial California Supreme Court decision in Perez, the United States Supreme Court in Loving v Virginia (388 US 1 [1967]) declared that Virginia's anti-miscegenation statute violated the fundamental right to marry and the guarantee of equal protection. At the time, about one third of all states still had laws prohibiting interracial marriage.⁴ In fact, the trial court in Loving, even as late as the 1960's, had rejected the rights of adults to choose their marital partners based on out-moded prejudices that are now recognized as illegitimate grounds for governmental action:

"Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix." (Loving, 388 US at 3, quoting op of trial judge.)

As with the Perez court, the United States Supreme Court was not deterred by the deep historical roots of anti-miscegenation laws (Loving, 388 US at 7, 10); their continued prevalence (id. at 6 n 5); nor any continued popular opposition to interracial marriage. (Id. at 7.) Instead, the Court held that "[u]nder our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State," declaring that "[m]arriage is one of the `basic civil rights of man,' fundamental to our very existence and survival." (Id. at 12, quoting Skinner v State of Okla. ex rel. Williamson, 316 US 535, 541 [1942].)

I. Background

Here, plaintiffs, members of five same-sex couples living in New York City, move for summary judgment declaring that, under the New York State Constitution, they are entitled to treatment equal to that of opposite-sex couples with regard to the issuance of marriage licenses and access to civil marriage. They contend that, insofar as New York State's Domestic Relations Law denies marriage licenses and access to civil marriage to same-sex couples, it violates the Due Process and Equal Protection Clauses of the New York State Constitution. In addition to declaratory relief, plaintiffs seek an injunction requiring defendant to grant each of the couples a marriage license.

Defendant Victor Robles (defendant clerk), who is sued in his official capacity as City Clerk of the City of New York, cross-moves for summary judgment dismissing the complaint. Defendant is the administrator of the New York City Marriage License Bureau and has responsibility for the issuance of marriage licenses and the solemnization of civil marriages in New York City.

The partners in each couple have been devoted to one another for periods ranging from 3 to 22 years and represent the rich diversity of New York. Several of the couples are raising children conceived during the relationship or adopted into their homes. The individual plaintiffs come from an array of racial, ethnic, and religious backgrounds and include health care professionals, a computer specialist, a textile stylist, a waiter, city planners, and a director of an emergency food assistance program. Each couple wishes to enter into a civil marriage, but was denied a marriage license by defendant clerk. Plaintiffs allege that they have suffered serious hardship because of their exclusion from civil marriage. Plaintiffs claim that without this State's recognition of same-sex marriage, they are denied the protections, benefits, and mutual responsibilities automatically afforded to married couples by New York state law.

Illustrative of the hardships caused by the exclusion of same-sex marriage is the relationship of Mary Jo Kennedy and Jo-Ann Shain.⁵ Mary Jo Kennedy is a medical director of a family health center and Jo-Ann Shain is an editor of medical publications for lawyers. Having met at a public health conference, they moved in together and have been committed to each other in their loving relationship for 22 years.

After discussing and understanding the momentous responsibility of bringing a child into the world, they decided to have a family. Jo-Ann's parents were happy that the couple was starting a family, as they have always treated Mary Jo as their daughter. Jo-Ann conceived a child through anonymous sperm donation and Mary Jo was with her at every step. In order to become the child's second legal parent, however, Mary Jo was required to go through an extensive legal process and waited years before she could adopt the child. In 1996, immediately after second-parent adoptions became legal in New York, Mary Jo was able to formally adopt the child. Mary Jo and Jo-Ann had to endure considerable expense, including hiring lawyers, and had their privacy invaded in the process. If they had been a married couple, Mary Jo would automatically have been the child's legal parent. While they had registered as domestic partners in New York City in 1993, such registration did not serve as an adequate substitute for marriage, since it provided the family with fewer privileges and protections.

Mary Jo Kennedy and Jo-Ann Shain's child is now 15 years old. The family travels together, takes vacations with extended family and friends, and volunteers at a local homeless shelter and a soup kitchen. Nonetheless, as detailed in her affidavit, the child feels that it is unfair that her parents cannot be married to each other and that it is wrong that she can have a legal relationship with each of her parents, but they cannot have the legal relationship of marriage to each other.

Four other...