Samuels v. State Health Dept.

• Decision Date: 16 February 2006
• Docket Number: 98084.
• Citation: 2006 NY Slip Op 01213,29 A.D.3d 9,811 N.Y.S.2d 136
• Parties: SYLVIA SAMUELS et al., Appellants, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 9

811 N.Y.S.2d 136

2006 NY Slip Op 01213

SYLVIA SAMUELS et al., Appellants, v. NEW YORK STATE DEPARTMENT OF HEALTH et al., Respondents.

98084.

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

February 16, 2006.

APPEAL (transferred to the Appellate Division in the Third Judicial Department by order of the Court of Appeals) from an order of the Supreme Court, Albany County (Joseph Teresi, J.), entered December 7, 2004. The order, among other things, granted defendants' cross motion for summary judgment and declared that New York's marriage laws as applied to same-sex couples were constitutional.

Paul, Weiss, Rifkind, Wharton & Garrison, L.L.P., New York City (Roberta A. Kaplan of counsel), for appellants.

Eliot Spitzer, Attorney General, Albany (Peter H. Schiff of counsel), for respondents.

Debevoise & Plimpton, L.L.P., New York City (Troy A. McKenzie of counsel), for Parents, Families & Friends of Lesbians and Gays, Inc. and others, amici curiae.

Jenner & Block, L.L.P., Washington, D.C. (William M. Hohengarten of counsel), for American Psychological Association and others, amici curiae.

Cravath, Swaine & Moore, L.L.P, New York City (Gary A. Bornstein of counsel), for Empire State Pride Agenda and others, amici curiae.

Willkie, Farr & Gallagher, L.L.P., New York City (Martin Klotz of counsel), for Women's Bar Association of the State of New York and others, amici curiae.

Suzanne B. Goldberg, New York City, for Professors of History and Family Law, amici curiae.

Fried, Frank, Harris, Shriver & Jacobson, L.L.P., New York City (Bonnie Steingart of counsel), for Academy of Jewish Religion and others, amici curiae.

Jay Weiser, New York City, for Association of the Bar of the City of New York and others, amici curiae.

Norman L. Reimer, New York City, for New York County Lawyers' Association and another, amici curiae.

Simpson, Thacher & Bartlett, L.L.P., New York City (Joseph F. Tringali of counsel), for Asian American Legal Defense and Education Fund and others, amici curiae.

Robert E. Genant, Mexico, for New York Family Policy Council, amicus curiae.

Richard E. Barnes, Albany (Paul Benjamin Linton, Northbrook, Illinois, of counsel), for New York State Catholic Conference, amicus curiae.

Rena M. Lindevaldsen, Longwood, Florida, for City Action Coalition and others, amici curiae.

Byron Babione, Scottsdale, Arizona, for Family Research Counsel, amicus curiae.

James J. Duane, Virginia Beach, Virginia, for National Legal Foundation, amicus curiae.

William C. Duncan, Marriage Law Foundation, Provo, Utah, for United Families International, amicus curiae.

OPINION OF THE COURT

LAHTINEN, J.

Plaintiffs contend that the NY Constitution requires defendant State of New York to permit same-sex couples to marry.¹ Briefly stated, plaintiffs are same-sex couples,² some of whom assert that they requested a marriage license from a town clerk (see Domestic Relations Law § 15) and were informed that such licenses would not be issued to same-sex couples. It is also alleged in the complaint, and defendants admit, that defendant Department of Health determined that marriage licenses may not be issued to same-sex couples and the Department so advised city and town clerks throughout the state. In April 2004, plaintiffs commenced this action seeking a judgment declaring the Domestic Relations Law unconstitutional to the extent that it prohibits marriage licenses from being issued to same-sex couples. Plaintiffs assert that the statutory restriction violates the due process, equal protection and free speech provisions of the NY Constitution. After defendants answered, the parties moved for summary judgment. In December 2004, Supreme Court denied plaintiffs' motion, granted defendants' cross motion and dismissed the complaint. Plaintiffs appeal.

The Legislature has placed many parameters on marriage in New York (see e.g. Domestic Relations Law §§ 5, 6, 7). Historically, the role of defining the boundaries of marriage "`has always been subject to the control of the Legislature'" (Fearon v Treanor, 272 NY 268, 272 [1936], quoting Maynard v Hill, 125 US 190, 205 [1888]) and, even though a particular judge or judges may disagree with the wisdom of some aspects of the restrictions, it is an area "left to the Legislature to resolve" (Ferrin v New York State Dept. of Correctional Servs., 71 NY2d 42, 47 [1987]; cf. Hope v Perales, 83 NY2d 563, 575 [1994]). Nevertheless, if the Legislature runs afoul of well ingrained precepts of the Constitution, court intervention — no matter how unpopular³ — is proper (see e.g. Zablocki v Redhail, 434 US 374 [1978]; Loving v Virginia, 388 US 1 [1967]). The hurdle for one attacking the constitutionality of laws duly enacted by the elected representatives of the people is high. "[L]egislative enactments are presumed valid and . . . one who challenges a statute bears the burden of proving the legislation unconstitutional beyond a reasonable doubt" (Rochester Gas & Elec. Corp. v Public Serv. Commn. of State of N.Y., 71 NY2d 313, 319-320 [1988]; see Matter of Travis S., 96 NY2d 818, 820 [2001]; People v Foley, 94 NY2d 668, 677 [2000], cert denied 531 US 875 [2000]; Hope v Perales, supra at 574-575). It is with this background in mind that we turn to plaintiffs' constitutional arguments.

We consider first plaintiffs' contention that substantive due process is violated by this State's statutes limiting marriage to one woman and one man. New York's Due Process Clause provides that "[n]o person shall be deprived of life, liberty or property without due process of law" (NY Const, art I, § 6).⁴ Protection for certain fundamental rights is implicit within this crucial constitutional clause (see Hope v Perales, supra at 575 [1994]).⁵ And, in an appropriate case, the protections provided by New York's Due Process Clause will be afforded a more expansive interpretation than the US Constitution (see Sharrock v Dell Buick-Cadillac, 45 NY2d 152, 159-160 [1978]; see also People v LaValle, 3 NY3d 88, 129 [2004]; Cooper v Morin, 49 NY2d 69, 79 [1979]). A law that impinges upon a fundamental right is subject to strict scrutiny, whereas one that does not "burden a fundamental right. . . is valid if it bears a rational relationship to [a governmental] interest" (Hope v Perales, supra at 577).

Courts use great caution when urged to recognize a new fundamental right or significantly expand an established one. The compelling reason for such caution was explained by the United States Supreme Court as follows:

"[W]e ha[ve] always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field, lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court" (Washington v Glucksberg, 521 US 702, 720 [1997] [internal quotation marks and citations omitted]).

One of the primary safeguards in maintaining a cautious and principled substantive due process analysis is the requirement that an asserted right or liberty generally be "`deeply rooted in this Nation's history and tradition'" (id. at 721, quoting Moore v East Cleveland, 431 US 494, 503 [1977]). The Court of Appeals has explained that "[d]ue process of law guarantees respect for personal immunities `so rooted in the traditions and conscience of our people as to be ranked as fundamental'" (People v Isaacson, 44 NY2d 511, 520 [1978], quoting Snyder v Massachusetts, 291 US 97, 105 [1934] [Cardozo, J.]). When, as here, the NY Constitution is asserted, it is appropriate to consider whether the history and traditions unique to this state point clearly to the need for additional protection beyond that afforded by the US Constitution (see People v P.J. Video, 68 NY2d 296, 303 [1986], cert denied 479 US 1091 [1987]).

Plaintiffs seek to bring the right to marry the person of their choosing regardless of gender within the protection of the well-recognized fundamental right to marry (see Zablocki v Redhail, 434 US 374 [1978], supra; Loving v Virginia, 388 US 1 [1967], supra; Skinner v Oklahoma ex rel. Williamson, 316 US 535, 541 [1942]). However, we find merit in defendants' assertion that this case is not simply about the right to marry the person of one's choice, 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. In Skinner v Oklahoma ex rel. Williamson (supra), Justice Douglas, writing for the United States Supreme Court, stated that "[m]arriage and procreation are fundamental to the very existence and survival of the race" (id. at 541). Drawing upon Skinner, Chief Justice Warren penned in Loving v Virginia (supra) that "[m]arriage is one of the `basic civil rights of man,' fundamental to our very existence and survival" (id. at 12). Justice Marshall, citing to Skinner and Loving, as well as other decisions of the Court, wrote in Zablocki v Redhail:

"Long ago . . . the Court characterized marriage as the most important relation in life and as the foundation of the family and of society, without which there would be neither civilization nor progress . . . [T]he Court recognized that the right to marry, establish a home and bring up children is a central part of the liberty protected by the Due Process Clause . . . and . . . marriage was described as...