Report on marriage rights for same-sex couples in New York: The Association of the Bar of the City of New York Committeee on lesbian and gay rights, committee on sex and law and committee on civil rights *.

Editor's Note: The following Report was issued jointly by several committees of The Association of the Bar of the City of New York in May 2001. In it, the Association supports marriage rights for same-sex couples in New York, and maintains that these rights exist now and should be recognized promptly under state law. While focused on New York, the Report's thorough analysis of federal and state constitutional, statutory, and comity issues is relevant to other jurisdictions. Since the Report, the relevant laws in New York, the United States, and the world have been changing quickly and dramatically. Nonetheless, the Association's arguments here, in its most recent analysis of the status of same-sex marriage in the state, remain compelling. To update readers, we have included in this issue a detailed discussion of recent developments by the Project Coordinator of the Report. **

There is currently a national debate over the right of lesbian and gay couples to enter into state-sanctioned marriage. Much of this debate stems from Vermont's recent legislation permitting same-sex civil unions. Lawsuits in Hawaii and Alaska attacking the constitutionality of prohibitions on same-sex marriage have also fueled the debate. In addition, many states are currently considering, and some have adopted, legislation attempting to prevent recognition of same-sex marriages performed in sister states. Most notably, in 1996, Congress enacted the Defense of Marriage Act (DOMA), which could give states that enact such legislation further ammunition in their efforts to deny recognition to same-sex marriages that may be legally sanctioned in sister states.

The constitutionality of measures denying recognition of same-sex marriage is in doubt, especially in light of the United States Supreme Court's apparent shift in its consideration of gay and lesbian rights. Fifteen years ago, the Court found that a state sodomy statute enforced only against homosexuals violated no constitutionally protected rights. (1) In contrast, in 1996, the Court found that by subjecting one group to a disadvantage that no other group had to suffer, a state constitutional amendment that barred anti-discrimination measures protecting lesbians and gay men violated the United States Constitution's Equal Protection Clause. In so doing, the Court took the remarkable step of invoking the landmark dissent in Plessy v. Ferguson in the opening paragraph of its decision: "[T]he Constitution 'neither knows nor tolerates classes among its citizens.' Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake." (2) The Court made clear that it would not countenance a legal distinction that raised the "inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." (3)

This Report, which is an update of a report issued by the Association in 1997, (4) addresses the issue of whether same-sex couples have the right to marry in New York and obtain the legal rights afforded to opposite-sex couples. In addition, it addresses the ancillary issue of whether New York should recognize same-sex marriages and legal unions entered into in sister states and abroad. This Report takes the position that same-sex couples currently have the right to marry. It argues in Parts I.A, I.B, and I.C that same-sex couples should be permitted to marry in New York because New York's marriage laws are gender-neutral, because same-sex marriage is entirely consistent with New York's public policy, and because a strong argument can be made that the Equal Protection Clauses of both the federal and New York constitutions require that the fundamental right of marriage be available to all couples of suitable capacity regardless of their sex. (5) Failing a prompt recognition of this right, as for example through an opinion of the Attorney General, or legislative or judicial action, this Report argues in Part I.D that New York should, as an interim measure, enact civil union legislation similar to that recently enacted in Vermont. In Part I.E, this Report also explores the ways in which gender identification issues affect the legal analysis of same-sex marriage. Finally, this Report concludes in Part II that New York should recognize same-sex marriages and civil unions entered into in other states and countries, in accordance with the Full Faith and Credit Clause of the federal constitution and New York's conflict-of-laws jurisprudence.

1. SAME-SEX COUPLES SHOULD NOT BE EXCLUDED FROM EXERCISING THE RIGHT TO MARRY IN NEW YORK

   1. New York's Marriage Statute is Gender-Neutral and Therefore Poses No Bar to Same-Sex Marriage

      In New York, marriage is governed by the Domestic Relations Law. Nowhere in Article 3, which sets out the requirements and procedure for entering into a marriage, is there any requirement that applicants for a marriage license be of the opposite sex. (6) Nor are same-sex marriages among the categories of marriages that are void or voidable. (7) The gender-neutrality of the New York Domestic Relations Law has never been analyzed by a court; however, the commentary to Article 2 acknowledges the gender-neutrality of New York's statutory scheme. The commentary notes that although the courts have "rejected the legal viability of same sex marriage ... the Domestic Relations Law does not directly address the issue. The New York statutes do not explicitly state that marriage is limited to persons of opposite sex." (8)

      Only one lower court in New York has considered directly the issue of same-sex marriage knowingly entered into, and it found that New York does not authorize such marriages. (9) However, that decision was issued early in the same-sex marriage debate, before the enactment of civil union legislation in Vermont and similar laws abroad, and before the spread of domestic partnership laws and private company benefits in this country, described in more detail below. The law has developed considerably in the intervening years since that decision. The court in that case did not engage in any analysis of the marriage statute, but rather, in a brief opinion, proceeded directly to a cursory constitutional analysis on the apparent assumption that the statute applies only to opposite-sex couples. The gender-neutrality of the statute, therefore, has yet to be analyzed.

      Additionally, there are two cases from the early 1970s that considered the validity of a same-sex marriage and found the marriage void. (10) Both of those decisions, however, were based on the doctrine of mistake, in that the plaintiff in each case entered into what was believed to be an opposite-sex union only to learn the spouse's true sex after the wedding.

      In cases arising under the Estates, Powers and Trusts Law (E.P.T.L.), the First and Second Departments of the Appellate Division have interpreted "spouse" to exclude same-sex partners, but have not addressed the issue of gender-neutrality under the language of the Domestic Relations Law. (11) A policy reason for this interpretation was articulated in In re Petri: the state's "interest in having its descent and distribution scheme clear, simple, predictable and capable of determining heirs at the moment of death." (12) This policy would not be undermined by a gender-neutral interpretation of the Domestic Relations Law, but rather would be supported: when same-sex couples are able to obtain marriage licenses, their marital status will be "clear, simple, [and] predictable" for judges deciding cases under the E.P.T.L.

      While rejecting the E.P.T.L. claim, the court in In re Petri acknowledged the gender-neutrality of the Domestic Relations Law when it stated:

      [T]he requirement of a solemnized marriage may not be assumed to be based on sexual orientation. Section 3 of the Domestic Relations Law has no requirement that applicants for a marriage license be of different sexes. The only authority in this state for the prohibition of same-sex marriage is contained in two lower court decisions ... With no clear precedent, the assumption that same sex marriages are prohibited in New York is premature ... It is questionable whether, in this era of domestic partnerships and alternative lifestyle education in grammar schools, it can still be said that marriage has one universal meaning which does not include couples of the same sex. (13) At worst, the Domestic Relations Law is ambiguous on the issue of same-sex marriage. This fact invokes two well-established rules of statutory construction to which the decisions discussed above have given no attention. The first such rule is that ambiguity in a statute should be resolved in light of the purpose of the statutory provisions at issue. (14) That inquiry involves assessing the purpose of marriage and the purpose of the state in recognizing and enforcing marriage vows.

      While marriage can involve an expression of religion and/or faith, and some religious views may oppose same-sex marriages, the state cannot ground its relationship to the support of marriage on the enforcement of religious doctrine. Nor is it tenable to tie state involvement in the creation and protection of a marriage relationship to the encouragement of procreation. Procreation is not the object of a significant number of marriages. Maintenance of a stable family relationship for the rearing of children is arguably a state interest. However, same-sex couples may have and adopt children, (15) and this interest is therefore furthered by allowing same-sex marriage.

      A conception of the purpose of marriage that is not unduly underinclusive is warranted. That purpose is the creation of a public, durable, legal relationship that expresses a commitment to emotional support, financial interdependence, and personal dedication to one another. (16) The purpose of the state in recognizing marriage is to create the opportunity for such expression and to provide a framework...