STATE
OF NEW YORK, COUNTY OF ULSTER against DECISION
AND ORDER On March 6, 2004, in New Paltz, New York, two ordained ministers of the Unitarian Universalist Church performed marriage ceremonies for 13 same-sex couples who did not have marriage licenses. They are charged with a crime for solemnizing marriages without licenses being presented to them, in violation of section 17 of the Domestic Relations Law (“DRL”). Conviction could result in a maximum fine of $250 and/or incarceration for a maximum of one year. The defendants claim that the charges against them are unconstitutional because the same-sex couples whose marriages they solemnized were unconstitutionally denied the ability to obtain marriage licenses. The defendants also argue that criminalizing the solemnization of unlicensed same-sex marriages by ordained clergy unconstitutionally infringes on the exercise of their religion and their religious belief that marriage is a desirable and holy state for all couples, including gay and lesbian. The court may dismiss charges against a criminal defendant if the statute defining the offense charged is unconstitutional or otherwise invalid. CPL 170.35. DRL 17 very simply states that a person who performs a marriage without being presented with a marriage license is guilty of a misdemeanor. It makes no distinction between same-sex and heterosexual couples. The clerk of the town of New Paltz, however, acting on an interpretation by the New York State Department of Health that DRL13 allows only marriages between a man and a woman, had announced that it would not issue marriage licenses to same-sex couples. The couples married by the defendants were unable to obtain the required marriage licenses. The prosecution argues that the constitutionality of same-sex marriage is not before the court, and that the only issue is whether the defendants have violated the plain language of DRL 17. The defendants argue that the constitutionality of same-sex marriage is before the court, and that a determination of the rights of the same-sex couples is necessary for their defense to the criminal charges. I find that the two issues are inextricably intertwined, and that defendants meet the requirements for standing under the principles set forth by the United States Supreme Court in Eisenstadt v. Baird, 405 U.S. 438 (1972), and Griswold v. Connecticut, 381 U.S. 479 (1965). See also New York County Lawyers’ Association v. State of New York, 294 A.D.2d 69 (1st Dept. 2002). If it is unconstitutional to prohibit same-sex couples from obtaining marriage licenses, it is unconstitutional to charge defendants with a crime for marrying same-sex couples who are unable to obtain marriage licenses. The fact that there may be other ways the couples could have challenged their inability to obtain marriage licenses does not change this. The defendants acknowledge that the state has an interest in regulating marriage. Even so, they arguee that it is unconstitutional for the state to limit marriage to opposite-sex couples. In order for a statute to survive even the most deferential standard of review for constitutionality (the so-called “rational basis” test), there must be a rational relationship between the classification adopted and the societal interest it purports to promote. Romer v. Evans, 517 U.S. 620 (1996). Under this standard of review, a statute is presumed to be valid and will be sustained if the classification drawn is rationally related to a legitimate state interest. Cleburn v. Cleburn Living Center, 473 U.S.432, 440 (1985). The prosecution has advanced two state interests for limiting marriage to opposite-sex couples: tradition and procreation. The New York State Attorney General, although given an opportunity to do so,1 has not offered additional justification, and no reasons are contained in statute. The justifications proffered by the prosecution can be summarized as follows:
I find that “tradition” is not a legitimate state interest, and that prohibiting same-sex couples from marrying is not rationally related to furthering the state’s legitimate interest in providing a favorable environment for procreation and child-rearing. Accordingly, the criminal charges against the defendants must be dismissed. Discussion follows. Traditional definition of marriage Tradition does not justify unconstitutional treatment. Slavery was also a traditional institution. The definition of “family” has changed so much over the years that it is difficult to speak of an average American family. See Troxel v. Granville, 530 U.S. 57, 63 (2000). The traditional definition of marriage has also undergone many changes, especially as gender roles have expanded. Concepts that were once considered essential to the definition have been abandoned, or even declared illegal. A starting point is found in DRL section 10, which reminds us that “marriage, so far as its validity in law is concerned, continues to be a civil contract.” The civil marriage laws set forth the benefits and obligations of legally married couples, almost all of which come into play only upon dissolution, or a breakdown, of the marriage. See DRL 30 through 254. The definition
of civil marriage, it appears, is flexible and subject to change
-- an “evolving
paradigm.” Goodridge v. Department of Public Health,
440 Mass. 309, 339 (Sup. Jud Ct of Mass, 2003). At one time, the
traditional marriage was arranged primarily to further the property
interests of families.
Until 1849, when the first of the Married Women’s Acts was
enacted, a tradition of marriage was that a married man owned all
his wife’s property,
while a married woman could own no property. The Court of Appeals
described it this way: “The inferior [the wife] hath no kind
of property in the company, care or assistance of the superior [the
husband] as the superior is
held to have in those of the inferior.” Van Allen v. Allen,
246 N.Y. 571, 575 (1927), quoting Blackstone (3 Com. 143). See
Domestic Relations Law
50 through 61 for a repeal of these laws. Even as
late as 1984, the traditional definition of marriage in
New York included the right of a husband to be free of criminal
charges
for raping
his wife.
Similar statutes existed in at least 30 other states. In ruling
the law unconstitutional, New York’s Court of Appeals commented
that this so-called marital exemption likely originated in an
1852 treatise, traceable to a statement made by the
17th century English jurist Lord Hale, who wrote People v. Liberta, 64 N.Y.2d 152, 161 (1984), citing 1 Hale, History of Pleas of the Crown, p. 629). The court rejected all the justifications the state offered, finding that “the traditional justifications . . . no longer have any validity.” 64 N.Y.2d at 161. The prosecution points out that, even with all the changes that have occurred in the definition of marriage, never has the court gone so far as to include same-sex couples in the definition. The fact alone that the discrimination has been sanctioned by the state for many years does not justify it. See Perez v. Sharp, 198 P.2d 17, 27 (Sup. Ct. Calif. 1948), citing Shelley v. Kraemer, 334 U.S. 1 (1948). Religion and marriage Many marriages are celebrated in a religious setting. Whatever meaning and sanctity may attach to a religious marriage ceremony, however, marriage is a civil contract, and state marriage laws are entirely civil in nature. DRL 10. Although the authority to officiate at civil marriage ceremonies has been extended to members of the clergy (in addition to certain public officials, such as mayors and magistrates), this does not alter the fact that state-sanctioned marriage is a civil event, not a religious one. DRL 12. The religious beliefs of some individuals and groups include a conviction that same-sex unions are unnatural and abhorrent. They would urge that their beliefs be incorporated into the law, as reflecting a divinely ordained definition of marriage. This was also the argument once successfully advanced to justify prohibition of interracial marriages. See Scott v. State, 39 Ga. 321, 326 (1869) (justifying laws against interracial marriage because “the God of nature made it otherwise”). The U. S. Supreme Court finally rejected this restriction on marriage as unconstitutional in 1967. Loving v. Virginia, 388 U.S. 1, 2 (1967) In doing so, it overturned a lower court opinion that had offered the following religion-based reason for excluding interracial couples from marrying:
Ironically, the defendants would also define marriage based on religious tenets. They argue that, by prosecuting them for solemnizing same-sex marriages, the state is preventing them from exercising an aspect of their religious beliefs that “the gender of the members of a couple is not a factor in determining whether they are appropriate candidates for marriage.” Defendant’s memorandum of law, pg. 27. Their religion, defendants say, “recognizes the sanctity of same sex relationships and has supported the solemnization of their holy union.” Greenleaf affidavit, dated May 1, 2004, Even though the state has granted a clergy member the authority to perform civil marriages (which some do in conjunction with a religious service), a lawful marriage that is subject to the laws of the state remains a civil contract, appropriately free of religious beliefs. Since the state has made an accommodation by permitting clergy to act in the state capacity of officiating at civil marriage ceremonies, the state does not violate the free exercise of religion by imposing valid restrictions on the ability to do so. Procreation Citing “procreation” as a broad justification for denying marriage to same-sex couples displays an anti-gay bias, rather than a real desire to provide a favorable environment for procreation and child-rearing. If family and children were truly the priority, the state would take all possible steps to protect them. The prosecution acknowledges that married couples are not required to have children, or even to engage in sexual relations. No inquiry is ever made into the sexual activities or sexual preferences of a prospective opposite-sex couple before a marriage license is issued. In fact, all sorts of people can marry and have children: convicted murderers, child abusers, pedophiles, racketeers, and drug pushers. It has long been recognized that the sexual orientation, alone, is not a factor in determining the appropriateness of adoption or custody of a child. See 18 N.Y.C.R.R. 421.16(h)(2) (single gay men and lesbians may adopt children); In Re Adoption of Carolyn B., 6 A.D.3rd 67 (4th Dept. 2004)(the sexual orientation of the petitioners are of no significance because the goal of the statute is to encourage adoption of children); Guinan v. Guinan, 102 A.D.2d 963 (3rd Dept. 1984) (whether defendant had a sexual relationship with another women is not determinative in a custody dispute, unless this is independently shown to adversely affect the child’s welfare). Many same-sex couples raise children, adopted or conceived by one of the partners. Some are raising the children of one partner that were conceived during a heterosexual marriage that failed. Excluding same-sex couples from civil marriage makes these children less, not more, secure. Same-sex relationships are based on the same thing as heterosexual unions: intimacy, companionship, love, family. Prohibiting same-sex couples from marrying suggests that marriage is about nothing but sex. This is demeaning to all couples who seek to marry and to the institution of marriage. Disapproval of a group is an insufficient reason for exclusion. Lawrence v. Texas, 539 U.S. 558 (2003). Economic and legal benefits of marriage Mixed-sex couples who do not love each other can marry. Couples who do not even like each other can marry. Regardless of the relationship a married couple has, legal privileges are granted to improve their economic, emotional, and physical health – simply because of their marital status. There can be no constitutional rationale for denying same-sex couples the right to receive the benefits that are so lavishly bestowed on mixed-sex couples. Marriage laws provide many financial and legal protections to married couples. The U.S. General Accounting Office has identified 1,049 federal laws in which benefits, rights, and privileges are contingent on marital status. See U.S. General Accounting Office, Defense of Marriage Act, GAO/OGC-97-16 (Washington, D.C. Jan. 31, 1997); and U.S. General Accounting Office, Defense of Marriage Act: Update to Prior Report, GAO-04-353R (Washington D.C. Jan. 23, 2004). Benefits, rights, and privileges were found in all of these areas: (1) Social Security; (2) programs to alleviate poverty, such as housing, food stamps, and public assistance; (3) veterans and military programs; (4) taxation; (5) employment; (6) immigration; (7) criminal and family violence laws; (8) loans and credit; and (9) education. In New York, some employers and agencies offer limited benefits to partners of same-sex couples. Many more benefits, however, are available only to married couples. They include such things as status as next-of-kin for hospital visits; the ability to make medical decisions in the event a spouse becomes sick or disabled; joint health, home, and auto insurance policies; access to a spouse’s disability and pension benefits; inheritance rights when a spouse dies intestate; joint income tax returns; family discounts from employers, banks, insurers and businesses; the legal protections afforded in the case of a divorce; the right to spousal support; the right to sue for wrongful death of a spouse; decision-making power with respect to whether a deceased partner will be cremated or not and where to bury him or her; and Family Court domestic violence protection orders. See Testimony of New York State Comptroller Alan G. Hevesi in Support of the Right to Civil Marriage for Same-Sex Couples in New York State. www.osc.state.us/press/release/mar04/030304b.htm [accessed July 11, 2004]. Using a purely pragmatic approach, there are many ways these inequities could be remedied. It is doubtful, however, that they would completely address the complicated reasons individuals have for wanting to join in marriage. Other court decisions Any reasons that have been developed for singling out and prohibiting -- even criminalizing -- same-sex relations have been all but abolished. See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (invalidated a state sodomy law that criminalized only members of the same sex from engaging in certain kinds of sexual activity); Romer v. Evans, 517 U.S. 620 (1996) (invalidated a state constitutional amendment that deprived gay men and lesbians of certain protections granted to heterosexual individuals under state law). New York’s highest court has consistently extended rights and benefits to same-sex partners. See, e.g., Braschi v. Stahl Assocs., 74 N.Y.2d 201 (1989)( interpreted the term “family member” in the rent control code to include a same-sex partner in a committed, long-term relationship); Matter of Jacob, 86 N.Y.2d 651 (1995) (held that the same-sex partner of the biological parent of a child could adopt the child). New York courts have held that the sexual orientation of an individual, alone, is of no significance in making adoption and custody decisions. See In Re Adoption of Carolyn B., 6 A.D.3rd 67 (4th Dept. 2004); Guinan v Guinan, 1023 A.D.2d 963 (3rd Dept. 1984). New York statutes have regularly been amended to prohibit discrimination against any individuals on the basis of sexual orientation and to extend rights and benefits to same-sex partners. See, e.g., Civil Rights Law 40-c; Executive Law 290 et seq. (the opportunity to obtain employment and education and to use public accommodations, housing, and commercial space may not be denied on the basis of sexual orientation); 9 NYCRR 4.28 and 5.32 (benefits must be offered to the domestic partners of state employees; 9 NYCRR 2104.6 (state housing regulations recognize same-sex relationships); 18 NYCRR 421.16(h)2) (single gay men and lesbians may adopt children). In an opinion issued in March of this year, New York’s Attorney General acknowledged that New York law recognizes the legitimacy of committed same-sex relationships in numerous ways and questioned the state’s interest in maintaining the historical understanding of marriage as confined to opposite-sex partners. NYS Attorney General, Informal Opinion Number 2004-1, March 3, 2004, at 19. The Hon. Jonathan D. Katz, in dismissing similar charges against the mayor of New Paltz, found that “none of the reasons stated in opposition to same-sex marriage is paramount to the equal protection guarantees enshrined in the state and federal constitutions.” People v. West, 2004 WL 1433528 (New Paltz Just.Ct.). The U.S. Supreme
Court has not
yet ruled on the precise issue,
but Justice
Antonin
Scalia
made
a persuasive
argument for
recognizing same-sex marriage
in his scathing dissenting
opinion, a year ago, in Lawrence v. Texas,
539 U.S.
558,
605 (2003)
(striking
down a statute
making
it a crime for persons of the
same sex to engage in certain
intimate sexual conduct). The
majority opinion
makes clear
that its ruling
does not address
whether
there should be formal
recognition of homosexual relationships,
but Justice Scalia warns us
not to believe it.
Instead, he
insists that the
majority's rationale regarding
personal decisions relating
to marriage, procreation,
contraception, family
relationships, child rearing,
and education applies to homosexual
relationships. Given the
broad scope of the majority
opinion, he adds, For the reasons stated herein, the motion to dismiss the charges against the defendants is granted, and the charges are dismissed. This constitutes the decision and order of the court. Dated: New Paltz, New York ____________________________ Hon. Judith M. Reichler Defendants’ Notice
of Motion, Affidavits, and Memorandum of Law......................
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