Under 21 v. City of New York

Decision Date28 June 1985
Citation482 N.E.2d 1,65 N.Y.2d 344,492 N.Y.S.2d 522
Parties, 482 N.E.2d 1, 37 Empl. Prac. Dec. P 35,477 UNDER 21, Catholic Home Bureau for Dependent Children, et al., Appellants, v. CITY OF NEW YORK et al., Respondents. SALVATION ARMY, Appellant, v. Edward I. KOCH, as Mayor of the City of New York, et al., Respondents. AGUDATH ISRAEL OF AMERICA, Appellant, v. CITY OF NEW YORK et al., Respondents.
CourtNew York Court of Appeals Court of Appeals
John P. Hale, New York City, and Patrick B. Silva, for appellants in the first above-entitled action

Nathan Lewin, Washington, D.C., and Dennis Rapps, New York City, for the National Jewish Commission on Law and Public Affairs, amicus curiae. I. The practice and toleration of homosexuality is condemned by Jewish religious law.

David L. Benetar and Stanley Schair, New York City, for The New York Chamber of Commerce and Industry, amicus curiae.

Gregory K. Hiestand, Joy D. Oberman, Robert E. Williams, New York City, Douglas S. McDowell and Lorence L. Kessler for The Equal Employment Advisory Council, amicus curiae.

Robert Abrams, Atty. Gen., Albany (Robert Hermann, O. Peter Sherwood, Albany, Rosemarie Rhodes, Lawrence S. Kahn and Debra L. Raskin, New York City, of counsel), for the State of New York, amicus curiae.

Thomas B. Stoddard and Madeline Kochen, New York City, for New York Civil Liberties Union, amicus curiae.

Robert L. Becker, Rosaria Esperon, New York City, Julius L. Chambers, Charlotte, N.C., Charles Steven Ralston, Ronald L. Ellis, David Seth Michaels, David Raff, Margaret Burnham, Stan Mark, Marsha Levick, New York City, Barbara Rochman, Sarah Wunsch, Abby Rubenfeld, Madeline Kochen, Thomas B. Stoddard and Douglas Kellner, New York City, for Puerto Rican Legal Defense and Education Fund, Inc., and others, amici curiae.

Richard E. Feldman, New York City, for Lambda Legal Defense and Education Fund, Inc., amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

The question on this appeal is whether the Mayor of the City of New York has the authority to promulgate an Executive Order prohibiting employment discrimination by city contractors on the basis of "sexual orientation or affectional preference." The Appellate Division held that the Mayor had this power. We disagree and hold that because of the separation of powers delineated in the City Charter, the Mayor has no authority to initiate such a policy.

I.

On April 25, 1980, the Mayor of the City of New York issued Executive Order No. 50 "to ensure compliance with the equal employment opportunity requirements of City, State and Federal law in City contracting" (Executive Order No. 50 § 1). The Executive Order applies to virtually every contract with the city, and requires that those entering into such contracts agree to ensure "equal employment opportunity" in all of their employment decisions. "Equal employment opportunity," as defined in section 3(i) of the order, includes not discriminating on the basis of "sexual orientation or affectional preference," terms which all parties agree refer to a person being homosexual or bisexual rather than heterosexual. The order provides that the Mayor's Bureau of Labor Services has the responsibility to implement, monitor compliance with, and enforce these equal employment requirements.

Pursuant to this grant of authority, the Bureau of Labor Services promulgated regulations, effective January 21, 1982, which require that specific language implementing Executive Order No. 50 be inserted into contracts with the city. In the required language, a contractor agrees, among other things, not to discriminate in any employment decision on the basis of "sexual orientation or affectional preference" and to state that condition in all solicitations or advertisements for employees.

Agudath Israel and the Salvation Army, the plaintiffs in two of three actions consolidated on appeal, are not-for-profit religious and charitable corporations. Both have annual contracts with the city, pursuant to which they provide social services such as day care facilities, counseling services, and senior citizen centers, and the city pays a portion of the costs of such services. The plaintiffs in the third action (the "Under 21" action) are not-for-profit corporations under the sponsorship of the Roman Catholic Archdiocese of New York, and they too provide social service programs partially funded through annual contracts with the city.

The plaintiffs in all three actions object on religious grounds to signing a contract in which they would agree not to discriminate on the basis of "sexual orientation or affectional preference," and have advised the city that they will not sign any contracts which contain such a condition. The city, in turn, has notified the plaintiffs that the contracts for the services they provide will not be renewed unless plaintiffs are in full compliance with Executive Order No. 50 and the Bureau of Labor Services' regulations promulgated thereunder, including the provision for insertion of the objected-to language into all the contracts.

Faced with the expiration of their contracts, plaintiffs brought three separate actions, each seeking a declaration that the portion of Executive Order No. 50 pertaining to "sexual orientation or affectional preference" is beyond the scope of the Mayor's authority, and thus void, and a permanent injunction against enforcement of this part of the order and the regulations implementing it. 1

The plaintiffs in all three actions moved for summary judgment, and the motions were referred to the same Justice at Special Term. Special Term held that the challenged portion of Executive Order No. 50 was an impermissible usurpation of legislative power by Mayor Koch, and, in three separate judgments, declared that portion unlawful and permanently enjoined the city and the Mayor from enforcing it.

The Appellate Division consolidated the three appeals by the defendants, 2 and in a split decision, disagreed with Special Term's conclusion that the Mayor had exceeded his authority insofar as Executive Order No. 50 related to "sexual orientation or affectional preference". Rejecting the separation of powers concerns expressed by Special Term and the dissenting Justice at the Appellate Division, the majority at the Appellate Division characterized those principles as "vestigial relics * * * relied upon for State court holdings in fewer and fewer desultory cases", and concluded that the Mayor "did no more than make express the policies and principles already firmly embedded in our State and Federal Constitutions." (108 A.D.2d 250 at pp. 258-259, 488 N.Y.S.2d 669.) Upon "search of the record," the Appellate Division granted defendants summary judgment declaring Executive Order No. 50 and the regulations promulgated thereunder constitutional and valid. 3

II.

The plaintiffs' contention that the Mayor lacked the authority to proscribe discrimination by city contractors on the basis of "sexual orientation or affectional preference" is a facial attack on this portion of Executive Order No. 50, and our resolution of the case does not depend on the status of the plaintiffs as religious organizations. Nor do we decide today the extent to which New York City may regulate the employment practices of those with whom it does business. Rather, the sole issue we address is the extent of the authority in this area of the chief executive officer of the city, the Mayor, and specifically, whether the executive may forbid discrimination by city contractors on a ground not covered by any legislative enactment.

One of the fundamental principles of government underlying our Federal Constitution is the distribution of governmental power into three branches--the executive, legislative and judicial--to prevent too strong a concentration of authority in one person or body (see, Youngstown Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153; id., at pp. 634, 635, 72 S.Ct. at pp. 869, 870 1 Story, Commentaries on the Constitution § 525 ). We have consistently recognized that this principle of separation of powers among the three branches is included by implication in the pattern of government adopted by the State of New York (see, e.g., Matter of LaGuardia v. Smith, 288 N.Y. 1, 5-6, 41 N.E.2d 153; Matter of County of Oneida v. Berle, 49 N.Y.2d 515, 522, 427 N.Y.S.2d 407, 404 N.E.2d 133), and, contrary to the Appellate Division's characterization of the doctrine as a "vestigial relic," we have very recently unanimously reaffirmed its continuing vitality (see, Subcontractors Trade Assn. v. Koch, 62 N.Y.2d 422, 427, 477 N.Y.S.2d 120, 465 N.E.2d 840). While the doctrine of separation of powers does not require the maintenance of " 'three airtight departments of government' " (Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867; 1 Story, Commentaries on the Constitution § 525, supra), it does require that no one branch be allowed to arrogate unto itself powers residing entirely in another branch (Youngstown Co. v. Sawyer, supra; Matter of Nicholas v. Kahn, 47 N.Y.2d 24, 30-31, 416 N.Y.S.2d 565, 389 N.E.2d 1086).

Of course, the pattern of government established for New York City by the City Charter is not identical to that of the United States or the State of New York. Still, the City Charter does provide for distinct legislative and executive branches: the City Council "shall be vested with the legislative power of the city, and shall be the local legislative body of the city" (New...

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