Foreword: the next normal-developments since marriage rights for same-sex couples in New York.

• Author: Weiser, Jay

1. INTRODUCTION

   The Association of the Bar of the City of New York issued its Report on Marriage Rights for Same-Sex Couples in New York (2000, (1) calling for the recognition of same-sex marriages, not long after Vermont enacted legislation giving same-sex couples the right to enter into civil unions. The Report comprehensively treated state and federal constitutional and statutory issues surrounding the recognition of same-sex marriage in New York, and served as a template for similar efforts elsewhere. In connection with the Columbia Journal of Gender and Law's publication of the Report, an update seemed appropriate because the ground has shifted in New York and in American society. The 2000 United States Census revealed 594,000 same-sex couples nationwide, with 46,490 in New York alone (2)--figures that may undercount the true number of couples by as much as 62 percent. (3) Reflecting a gay baby boom accelerating over the past decade, 34.3 percent of female same-sex households and 22.3 percent of male households have children nationwide (the figures for New York are 34.3 percent and 21.7 percent, respectively). These rates are not that much below the national rate for married opposite-sex couples of 45.6 percent and of unmarried opposite-sex couples of 43.1 percent. (4) Using reasonable estimates, this would suggest around 400,000 children being raised by same-sex couples nationwide, and 31,000 in New York. (5) It is increasingly clear that same-sex couples are here to stay as a significant factor in American life--1 percent of all coupled households in the United States, and 1.3 percent in New York. (6)

   There are facts on the ground elsewhere. Canada, (7) Belgium, (8) and Zurich (9) have now joined the Netherlands (10) in legalizing same-sex marriage, and in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court required the enactment of same-sex marriage legislation. (11) The European Union's Parliament has required member states to grant same-sex marriage and domestic partnership rights, and Germany has adopted domestic partnership legislation. (12) The governments of Taiwan and the United Kingdom are also introducing legislation to recognize same-sex couples. (13) In California, even before the recent expansion of domestic partnership into a near-equivalent to marriage, there were approximately 21,000 same-sex and opposite-sex registered domestic partnerships, (14) and New Jersey, too, has instituted domestic partnership. (15) In the first six months after legalization of marriage, nearly 2,000 same-sex couples were wed in the Netherlands, and 1,500 same-sex couples in Canada. (16) Nearly 5,700 same-sex couples had entered into Vermont civil unions as of June 29, 2003. (17) Canada and Vermont are becoming magnets for same-sex couples from other jurisdictions seeking recognition of their partnerships: 15 percent of the 362 same-sex marriage licenses issued in the five weeks after Canada legalized same-sex marriage were issued to United States couples, and a whopping 85 percent of those who had obtained a Vermont civil union license in the first three years were out-of-staters. (18)

   The United States Supreme Court's recent decision in Lawrence v. Texas, holding Texas's gay sodomy law unconstitutional, (19) led to instant speculation on the potential constitutional implications for marriage. Lawrence and Goodridge energized conservative organizations to press for a United States constitutional amendment to ban same-sex marriage, (20) and one poll showed that 50 percent of Americans supported such an amendment in August 2003. (21) An October 2003 Pew Research Center poll found that only 32 percent of Americans favored gay marriage, while 59 percent opposed it. (22) Still, in much of American society, gay relationships are being normalized. A September 2003 USA Today/CNN/Gallup poll showed that 50 percent of Americans said that allowing gay marriage would either improve society or have no effect, with the percentage rising to 67 percent for those from eighteen to twenty-nine years old. (23) Even some conservatives now support marriage or civil union, (24) and some opponents of Lawrence and Goodridge leave room for recognition of same-sex relationships. (25) Although the contest remains intense and the result uncertain, the laggard United States appears to be following the gradient of other Western nations, identified by William Eskridge, that begins with repeal of sodomy laws, progresses through the passage of nondiscrimination legislation, and culminates in legal recognition of same-sex relationships. (26) Analyzing the changing legal and social environment since the date of the Report, this Foreword looks at developments worldwide and in New York.

2. NEW YORK'S PUBLIC POLICY AFTER SEPTEMBER 11

   The Report was issued a few months before the September 11, 2001, attacks. Those attacks led to widespread news coverage of gays and lesbians whose long-time partners had been murdered by the terrorists, and to sympathy for the survivors. (27) In response, Governor George Pataki extended crime victim compensation benefits to surviving same-sex partners of World Trade Center victims, acknowledging that the grief and loss suffered by gays and lesbians who lose a life partner is equal to that suffered by surviving opposite-sex spouses. (28) Legislation followed making the partners of World Trade Center victims eligible for benefits from the federal September 11 Victims Compensation Fund and for workers' compensation claims arising from the attacks. (29) In the wake of the Iraq war, the state of New York made the domestic partners of active-duty military service members eligible for library Internet access, burial insurance, videoconferencing, discounted telephone rates, and property tax relief (30)--notwithstanding the federal "don't ask, don't tell" policy requiring the expulsion of openly gay military service members. Also responding to September 11, even the federal government--generally less supportive of lesbian and gay families--passed the Mychal Judge Act, which directed federal benefits to a limited class of same-sex surviving partners. (31)

   New York also recently agreed to pay unemployment benefits to long-term same-sex domestic partners who quit their jobs to follow their partners obtaining work out of state. (32) It enacted the Sexual Orientation Non-Discrimination Act ("SONDA") (33) which bars discrimination based on sexual orientation in employment, housing, education, commercial occupancy, trade, credit, and public accommodations. SONDA's legislative history, however, specifically disclaimed any intent to affect the right to marry under New York law. (34) And although it does not specifically reflect New York's public policy, the American Law Institute's model Principles of the Law of Family Dissolution advocated full recognition of cohabiting same-sex partners for purposes of child custody, visitation, and spousal support. (35) Similarly, recent academic legal literature has overwhelmingly favored the recognition of same-sex relationships, reflecting an increasingly functionalist American family law that takes into account actual, rather than purely legal, relationships. (36)

   Not all New York developments since the Report have supported the recognition of same-sex relationships. In J.C. v. C.T., discussed in the Report, a lesbian couple split up after having a child together in the relationship, and the biological parent refused visitation to the nonbiological partner. (37) The Westchester Family Court found standing for the nonbiological partner to seek visitation on an equitable estoppel theory. (38) New York's Appellate Division, Second Department, reversed in a decision retitled Janis C. v. Christine T., however, citing the 1991 Court of Appeals decision in Alison D. v. Virginia M., which refused a nonbiological partner visitation. (39) The Second Department did not reason that permitting visitation (and therefore recognizing the same-sex relationship to that extent) would be against public policy; instead, it applied stare decisis. (40)

3. FEDERAL, STATE, AND CANADIAN CONSTITUTIONAL DEVELOPMENTS

   1. Equal Protection: Level of Scrutiny under Rational Basis Test

      In North America, recognition of same-sex partners' rights has typically expanded through litigation rather than legislation. (41) Interpretations of the United States Constitution's Equal Protection Clause, and comparable constitutional clauses in other jurisdictions, distinguish between suspect classes subject to strict scrutiny, classes such as sex discrimination subject to intermediate scrutiny, (42) and other classes subject to rational basis scrutiny. Rational basis scrutiny historically required a statute to be upheld if there was any remotely logical basis for it, but in Romer v. Evans, the United States Supreme Court applied a rational basis test with teeth to strike down a Colorado constitutional amendment that permanently barred legislation forbidding sexual orientation discrimination. (43)

      Since the Report, both Massachusetts and Canada have applied rational-basis-with-teeth standards under their respective constitutions to require recognition of gay relationships. In Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court mandated gay marriage:

      Barred access to the protections, benefits, and obligations of civil marriage, a person who enters into an intimate, exclusive union with another of the same sex is arbitrarily deprived of membership in one of our community's most rewarding and cherished institutions. That exclusion is incompatible with the constitutional principles of respect for individual autonomy and equality under law. (44) The state argued that the ban on same-sex marriage had a rational basis under the Massachusetts Constitution in the government's encouragement of procreation. (45) The court rejected this, noting that many opposite-sex couples do not...