Ogilvie, Application of

• Decision Date: 03 September 1975
• Citation: 373 N.Y.S.2d 281,83 Misc.2d 896
• Court: New York County Court
• Parties: Application of Keith OGILVIE and Alma Palmer For an Order Pursuant to Domestic Relations Law § 13--b.

Page 281

373 N.Y.S.2d 281

83 Misc.2d 896

Application of Keith OGILVIE and Alma Palmer For an Order

Pursuant to Domestic Relations Law § 13--b.

Rockland County Court.

Sept. 3, 1975.

Sichol & Hicks, P.C., Suffern, for petitioners.

DECISION

HARRY EDELSTEIN, Judge:

Let me not

To the marriage of true minds

Admit impediments.

Shakespeare, Sonnet 116

The petitioners intend to be married within the State of New York and in accordance with its laws, and move, pursuant to Domestic Relations Law § 13--b, for an order whereby the ten-day waiting period ¹ would be waived. Each petitioner is over the age of eighteen years. Cf. Dom.Rel.L. § 2. Both petitioners are citizens of the United States; the petitioner Keith Ogilvie is a citizen and a resident of the State of New York, and the petitioner Alma Palmer is a citizen and a resident of the State of New Jersey.

The germane provision of Domestic Relations Law § 13--b reads:

A judge or justice of the supreme court of this state or the county judge of the county in which the Woman to be married resides * * * may make an order authorizing the immediate solemnization of the marriage * * * without waiting for such ten(-)day period * * * to elapse.

(Emphasis added.)

Regulation of marriage is a sovereign function reserved to the State, and is neither vested in nor delegated to the Congress. U.S.Const. amend. X; O'Neill v. Dent, 364 F.Supp. 565, 568 at n. 6 (E.D.N.Y., 1973). The federal arrangement notwithstanding, the legislative authority of the State is not plenary, but is limited by the Constitution of the United States and by the Constitution of the State of New York. Arverne Bay Const. Co. v. Thatcher, 278 N.Y. 222, 231, 15 N.E.2d 587, 591 (1938) (Lehman, J.) (all concur). Both the United States and New York constitutions prohibit denial to any Person the equal protection of the laws. ² Under a constitutional Equal Protection clause, a classification based on sex is inherently suspect. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Matter of Sontag v. Bronstein, 33 N.Y.2d 197, 351 N.Y.S.2d 389, 306 N.E.2d 405 (1973) (Jasen, J.) (all concur). Additionally, marriage 'concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees'. Griswold v. Connecticut, 381 U.S. 479, 485, 85 S.Ct. 1678, 1682, 14 L.Ed.2d 510 (1965) (Douglas, J.). The convergence of these rights retained by the people and reserved to them by the constitutions requires that the strictest scrutiny be applied to the quoted legislation, and only a most compelling State interest will justify the statutory classification based on sex. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).

On the facts before the Court, there is neither rhyme nor reason to the statutory classification. If, under circumstances otherwise identical, the woman were a resident of the County of Rockland, and the man resided in a sister State, there would be no question that an order may issue. In the case at Bar, the man is a resident of the County of Rockland and the woman lives in a sister State, and the statute does not, apparently, authorize issuance of an order.

The purpose of the statute, by its terms, is to promote the public interest and to avoid irreparable injury or great hardship to the contracting parties. Of necessity, relief granted to one petitioner hereon grants relief to the other petitioner. Therefore, it cannot be said that the residence of the woman rather than of the man, has any relationship, let alone a significant one, to the legislative intent of liberal granting of relief to prospective couples adversely affected by the statutory limitation on the natural and constitutional right to marry. '(A) classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, 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 (1920). Accordingly, the Court finds that the effect of the statute is to deny to the petitioner Ogilvie the equal protection of the laws.

In its consideration of the constitutional issue before it, the Court notes that an intrinsic characteristic of a unified, hierarchical court system (N.Y.Const. art. 6, § 1(a)) is the allocation to the appellate courts of the transcendent judicial power to declare a statute unconstitutional. It is a function of the Appellate Division, and, particularly, of the Court of Appeals, to find that an enactment is contrary to the Constitution. It is a well-settled canon of construction that a court of original jurisdiction may not declare a statute unconstitutional unless the statute is unredeemably unconstitutional. Matter of 1175 Evergreen Ave., 158 Misc. 158, 160, 284 N.Y.S. 16, 18--19 (Sup.Ct., Bronx Cty., 1935), aff'd 270 N.Y. 436, 1 N.E.2d 838 (1936) (all concur), aff'd Sub nom. Lauro v. Barker, 299 U.S. 521, 57 S.Ct. 321, 81 L.Ed. 384 (1937). It is another well-settled canon of construction that a 'statute should be construed when possible in a manner...