Daniel Hernandez and Nevin Cohen, Lauren Abrams and Donna Freemantweed, Michael Elsasser and Douglas Robinson, Mary Jo Kennedy and Jo-Ann Shain, and Daniel Reyes and Curtis Woolbright, plaintiffs-respondents--against--Victor L. Robles, in his official capacity as city clerk of the City of New York, defendant-appellant.

• Author: Goldberg, Suzanne B.
• Position: New York Supreme Court: Appelalte Division--First Department

Brief of Professors of History and Family Law as Amici Curiae in Support of Plaintiffs-Respondents ([dagger])

1. INTEREST OF AMICI CURIAE

   We are professors of history and family law specializing in the history of marriage, families, and the law, at universities throughout the United States. We have written leading books and articles analyzing the history of marriage and marriage law in the United States. This brief is submitted to assist the Court's deliberations by offering an analysis of the history of marriage law and practice based on our scholarship. Our names, institutional affiliations, and brief biographies are set out in Exhibit E to Affirmation of Suzanne B. Goldberg in Support of Permission to File a Brief as Amici Curiae (July 28, 2005).

   We adopt the Statement of the Case and Statement of Facts in the brief of Plaintiffs-Respondents.

2. SUMMARY OF ARGUMENT

   The history of marriage in New York is a history of change. Since the State's earliest days, marriage has undergone continuous reexamination and revision. Indeed, marriage today--a partnership between two adults who are equal in the eyes of the law--bears little resemblance to marriage as it existed at the State's founding or even a few decades ago.

   The relevant history demonstrates that all marriage rules remain subject to meaningful judicial review and that a rule's vintage is not, by itself, sufficient justification for its retention. Indeed, the historical record specifically documents the transformation or invalidation of many traditional features of marriage.

   The historical record shows, as well, that New York has invalidated rules requiring different treatment of men and women in marriage, and that the State has never treated procreation as essential to marriage. Moreover, throughout its statehood, New York has not maintained uniformity between its marriage rules and those of other states.

   Further, the ongoing evolution of marriage throughout New York's history renders implausible the suggestion that marriage, which has survived so many changes, is too flail to endure the constitutionally compelled revision of the anachronistic different-sex eligibility rule. To the contrary, the State continues to recognize a substantial set of rights and responsibilities of couples as "marriage," even as that set has shed elements that were considered fundamental to marriage earlier in our history. Nor have the changes to marriage deterred New Yorkers, who continue to embrace marriage overwhelmingly as the mechanism for achieving state recognition of their relationships. Even in the wake of significant transformation, marriage has survived, all the while remaining true to its core purpose of recognizing committed, interdependent partnerships between consenting adults.

3. ARGUMENT

   1. The Legal Definition of Marriage in New York Has Never Been Static; Features of Marriage Once Thought Essential Have Been Revisited and Rejected Consistently Over Time.

      In finding that marriage "is not a stagnant institution" and that many longstanding and once-fundamental marriage rules have been invalidated, the court below recognized correctly that the history of the exclusion of same-sex couples from marriage describes but does not explain or justify the continuation of that rule. (1) As legal developments throughout New York's history demonstrate, the State's courts and legislature have continuously adjusted and abandoned elements once thought to represent the foundations of marriage.

      1. The Shift Away From the Common Law Coverture Regime Transformed the Meaning of Marriage in New York in the Nineteenth and Early Twentieth Centuries.

         Until well into the nineteenth century, marriage in New York meant the complete merger of a woman's legal identity into that of her husband. Indeed, for most people, marriage was unimaginable in any other way. (2) As the Court for Correction of Errors put it in 1830, (3) "the wife ... and her husband constitute but one person." (4) For both men and women, negating a married woman's

         independent legal capacity, including her capacity to own property in her own right, was understood as one of marriage's indispensable elements. As the Supreme Court of Judicature wrote in 1824, "a husband, in virtue of his marriage, becomes absolute owner of the goods and chattels of his wife." (5)

         The collapse of women's legal identity upon marriage extended to wives' ability to contract as well. As the Supreme Court of Judicature observed in 1819, "[i]t is a settled principle of the common law, that coverture disqualifies a feme from entering into a contract or covenant, personally binding upon her." (6) Husbands' control over their wives meant, too, that women had limited recourse in response to "restraint" by their husbands. (7)

         This gendered concept of marriage reflected in coverture emerged from the view that the colonial family was a "little commonwealth" whose members were bound together by a well-defined set of reciprocal duties and the shared aims of domestic tranquility. (8) The husband was, by legal entitlement and informal social code, the "governor" of this colonial household. (9) The wife and children, in turn, were dependents within the husband's domain. (10)

         Against this background, a woman's "civil death" upon marriage was seen as both natural and essential to the healthy continuation of marriage and the broader society. (11) As the Supreme Court of Judicature explained in 1820, "no man of wisdom and reflection can doubt the propriety of the rule, which gives to the husband the control and custody of the wife." (12) "[T]his socially constructed rule [of unity] was identified as part of 'the natural order of things.'" (13) Consequently, coverture was also seen as necessary "to preserve the harmony of the marriage relationship." (14)

         But by the middle nineteenth century, the institution of marriage had changed considerably. Marriage no longer meant the absolute legal subordination of women to their husbands. In 1848, New York became one of the first states in the country to authorize married women to own property as independent individuals. (15) The Act provided in part:

         The real and personal property of any female who may hereafter

         marry, and which she shall own at the time of marriage, and the

         rents issues and profits thereof shall not be subject to the disposal

         of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female. (16)

         The following year, the Act was amended to provide married women with the power to contract as well. (17)

         Not surprisingly, the opponents of these changes proclaimed that removing the husband from his role as the "ultimate locus of power within the home" would lead to domestic chaos and the destruction of the nation. (18) In 1844, for example, a New York State legislative committee observed "that allowing married women to control their own property would lead 'to infidelity in the marriage bed, a high rate of divorce, and increased female criminality,' while turning marriage from 'its high and holy purposes' into something arranged for 'convenience and sensuality.'" (19) A prominent New York lawyer opposed the Act out of similar fears that women's independent property ownership would lead "husband and wife [to] become armed against each other to the utter destruction of the sentiments which they should entertain towards each other, and to the utter subversion of true felicity in married life." (20)

         Despite these concerns, the element of legal unity of spouses, which had been thought of as essential to marriage since statehood, continued to change throughout the 1850s and 1860s through a stream of legislative acts and judicial decisions. These changes included statutes protecting married women's savings deposits, (21) ensuring married women the right to vote as stockholders in elections, (22) and protecting a woman's right to sue and be sued (23) and to keep her earnings during marriage (the "Earnings Act"). (24) Reflecting New York's leadership role in altering the meaning of marriage, the Earnings Act has been described as arguably the nation's "boldest" legislation on behalf of married women's legal rights. (25)

         Courts played a significant role in determining the elements of marriage. At first, for example, they adhered to the previously settled view that married women were limited in their ability to contract. (26) By 1908, however, the Court of Appeals rejected that position: "Courts of law now recognize the separate existence of a husband and his wife the same as courts of equity and give to each the same rights and remedies." (27)

         New York's courts likewise eroded earlier rules limiting wives' ability to sue in tort. Traditional requirements that a husband be joined to any tort action against a married woman were rejected. (28) Similarly, the State's high court recognized a married woman's fight to sue third parties for personal torts. (29)

         By 1923, New York courts not only had rejected the traditional understanding of marriage as coverture but also had characterized as "archaic" the common law understanding that a husband "had a property interest in [his wife's] body and a fight to the personal enjoyment of his wife." (30) In setting aside the different rules for husbands and wives regarding claims of criminal conversation, the Court pointedly observed that the only objection to the wife's claim had been "the plea that the ancient law did not give it to her." (31) "Reverence for antiquity," however, "demands no such denial," the Court wrote. (32) Instead, "[c]ourts exist for the purpose of ameliorating the harshness of ancient laws inconsistent with modern progress when it can be done without interfering with vested rights." (33)

      2. Since the Mid-Twentieth Century, New York Has Continued To Change Elements of Marriage Once Considered Unalterable.

         Having endured the transformations just described, marriage neither collapsed as a legal or...