Joel R. Brandes and Carole L. Weidman
A BIG BREAKTHROUGH for gay rights advocates came on Dec. 3
when Judge Kevin Chang offered hope to a growing group of individuals when he
announced in Baehr v. Miike, that denying marriage licenses to same-sex
couples was a form of sex discrimination under Hawaii's state Constitution.
Despite staying his own ruling pending review by the state's Supreme Court,
Judge Chang's revolutionary view has affected the nation and sent
reverberations throughout the country.
The National Law Journal reported on Dec. 16 that proponents
of same-sex marriages believe the first single-sex wedding may well take place
in Hawaii as early as this year. Attorneys have speculated that a gay marriage
boom in Hawaii is likely to mean an increased level of interest in the full
faith and credit clause of the U.S. Constitution. Others believe the case
being decided will be a forerunner on the issue since "[t]he law under that
clause is quite sparse, so cases dealing with the question of marriage may
come to be the leading full-faith-and-credit issues."
This strategy is at best, suspect, since full faith and credit
is owed to judgments of sister states, not to contracts. The basis for this
view stems from the U.S. Supreme Court, which proclaimed marriage a civil
contract founded on the agreement of the parties. [FN1] Article IV, s1, of the
U.S. Constitution provides that "Full faith and credit shall be given in each
state to the public acts, records, and judicial proceedings of every other
state." The marriage contract is plainly not full faith and credit "territory"
nor has it ever been construed to be.
Civil Contract With Third Party
A bit of history is in order. Marriage, considered by many to
be a religious contract, is a civil contract subject to curiously odd
principles. [FN2] It cannot be rescinded at the will of the parties [FN3] and
is a status to which the state is a third party. The legislature has always
exercised full control over the marriage status [FN4] and has regulated it by
laws based on principles of public policy. [FN5]
The state has the power to determine the conditions on which a
marriage may be contracted and dissolved. [FN6] It may be regulated,
controlled and modified, and rights growing from it modified or even abolished
by the legislature, bound only by the Equal Protection and Due Process
provisions of federal and state constitutions. [FN7] Marriage may be regulated
by the state without violating the impairment of the obligation of a Contract
Clause of the Constitution. [FN8] The legislature has the right to determine
the duties and obligations it creates and its effects upon the property rights
of both parties. [FN9]
In determining the law governing the recognition of the
validity of marriages where more than one jurisdiction is involved, the cases
distinguish between "formal validity," that is, matters regarded as making a
marriage voidable and "essential validity." [FN10] Insofar as matters of
"formal validity" go, what is good for the goose is good for the gander. If a
marriage is valid where it is celebrated, it is, as a general rule, valid in
this state. [FN11] If it is not a valid marriage where it is celebrated, it is
invalid in New York. [FN12] In contrast, New York puts the brakes on
"essential validity" which speaks to an issue of strong public policy, such as
incestuous or bigamous marriages, which usually make a marriage void.
The traditional conflicts of law principle is that such
matters are governed by the law of the appropriate domicile, and if it
condemned the marriage as "void," so will other jurisdictions. New York will
not recognize the validity of marriages (even though they are valid where
contracted) where they are incestuous in a degree regarded generally as within
the prohibition of natural law, or polygamous.
Moreover, the courts will not recognize the validity of
marriages even though they are valid where contracted when they are contrary
to the express prohibitions of a mandatory, as distinguished from a directory,
statute, [FN13] or the public policy. [FN14] In addition, where a particular
marriage is abhorrent to local public policy, it will be denied recognition
regardless of its validity in accordance with the law of the place of ceremony
or appropriate domicile or both.
Path of Sister States
With this background in mind, New York can easily choose to
follow the path of sister states. The Court of Appeals has held that "ordinary
marriage relations" is a basic obligation of the marriage contract. That
annulment may be granted for physical incapacity evinces a strong predilection
in our public policy that the creation of children is at the heart of
marriage. [FN15] This lays the groundwork for our courts to deny recognition
of gay marriages on public policy grounds. Equally important, is that the
legislature has the power to enact a law denying recognition to such
marriages.
It appears clear that in this "battle of the sexes" Congress
is preparing for full scale war. On Sept. 21, PL 104-199, otherwise known as
the "Defense of Marriage Act," was signed into law. It enacts 28 USC 1738C,
which encourages states to refuse to recognize same-sex marriages and appears
to beef up existing law. It provides that no state shall be required to give
effect to any public act, record, or judicial proceeding of any other state
respecting a relationship between persons of the same sex that is treated as a
marriage under the laws of such other state, or a right or claim arising from
such relationship. It also enacted 1 USC 7, which defines "marriage" and
"spouse" for purposes of determining the meaning of any Act of Congress.
"Marriage" means "only a legal union between one man and one woman as husband
and wife," and "spouse" refers "only to a person of the opposite sex who is a
husband or a wife."
Baehr v. Miike was tried following a ruling from Hawaii's
Supreme Court in Baehr v. Lewis, [FN16] in which it held the state was
required to prove it had a compelling interest in banning same-sex marriage by
a sex-based classification.
In Baehr v. Lewis the Hawaii Supreme Court distinguished
between the equal protection clauses of the United States and Hawaii
Constitutions "... which are not mirror images of one another" and based its
determination partly on this distinction. The Fourteenth Amendment to the
United States Constitution provides that a state may not "deny to any person
within its jurisdiction the equal protection of the laws."
Hawaii's counterpart, Article 1, s5, of the Hawaii
Constitution, provides that "[n]o person shall ... be denied the equal
protection of the laws, nor be denied the enjoyment of the person's civil
rights or be discriminated against in the exercise thereof because of race,
religion, sex, or ancestry." The court found that, unlike the US Constitution,
the Hawaii Constitution prohibited state-sanctioned discrimination against any
person in the exercise of his or her civil rights on the basis of sex and that
discrimination against any person in the exercise of his or her civil rights
on the basis of sex was a "suspect category" for purposes of equal protection,
subject to its "strict scrutiny" test.
This is the first decision of its kind. Other state courts
have taken a contrary position. In Baker v. Nelson, [FN17] the Minnesota
Supreme Court, upheld the refusal of a marriage license clerk to issue a
license to two male applicants solely on the grounds that they were of the
same sex, resisting the applicants' attack on due process and equal protection
grounds. The court held that the statute that governed "marriage," employed
that term as one of common usage, meaning the state of union between persons
of the opposite sex. It reasoned that the institution of marriage, as a union
of man and woman uniquely involving the procreation and rearing of children
within a family, was as old as the book of Genesis.
New York has followed other states and addressed this issue
directly in the recent decision of Storrs v. Holcomb, [FN18] when two men
sought to compel the City Clerk to issue a marriage license to them. The
Supreme Court held that while the right to marry, by opposite sex couples, is
protected under the Fourteenth Amendment as a matter of substantive due
process, same-sex marriage is not currently recognized under the laws of any
state of the Union. The court, believing its hands tied by the ruling of the
Second Department in Matter of Cooper, concluded that New York does not
recognize or authorize same- sex marriage and, that the City Clerk correctly
refused to issue the license.
In Matter of Cooper [FN19] the court held that the survivor of
a homosexual relationship, alleged to be a "spousal relationship," was not
entitled to a right of election against the decedent's will, pursuant to EPTL
5-1.1. The court found that the Legislature expressly defined a "surviving
spouse" in EPTL 5-1.2, as a husband or wife.
The court reasoned that this interpretation is inescapable
even in the absence of any express definition of the term because "[t]he
language of a statute is generally construed according to its natural and most
obvious sense ... in accordance with its ordinary and accepted meaning ...."
The court rested its conclusion on the definition of marriage
in Baker v. Nelson. [FN20] The petitioner argued that a narrow definition of
the term "surviving spouse" was unconstitutional in violation of the Equal
Protection Clause of the State Constitution and that this directly derived
from the State's unconstitutional conduct in interpreting the Domestic
Relations Law as prohibiting members of the same sex from obtaining marriage
licenses.
The Appellate Division explained that the U.S. Supreme Court
reviews equal protection challenges by three standards: "strict scrutiny,"
"heightened scrutiny" and "rational basis" review and that the lower court
correctly used the "rational basis" standard in reviewing this equal
protection challenge. Under this standard, the legislation or government
action is presumed to be valid and will be sustained if the classification is
rationally related to a legitimate state interest.
We point out that under the "heightened scrutiny" test, which
is applied to classifications based on gender and illegitimacy, the
legislation or government action is presumed valid and will be sustained if
the classification serves important government objectives and is substantially
related to achievement of those objectives. Under the "strict scrutiny" test,
which is applied to classifications based on race, alienage and national
origin, the statute is presumed to be unconstitutional unless the state shows
the legislation is suitably tailored to serve a compelling state interest that
justifies the classification. [FN21]
The Court noted that the rational basis standard has also been
applied in similar instances where equal protection challenges have been
raised to classifications based on sexual orientation. It noted that the
appeal in Baker v. Nelson to the U.S. Supreme Court was dismissed for want of
a substantial federal question [FN22] and that such a dismissal is a holding
that the constitutional challenge was considered and rejected. [FN23]
With leading-edge reasoning, the Hawaii court in Baehr
construed the marriage relation as "a partnership to which both partners bring
their financial resources as well as their individual energies and efforts."
It applied a "strict scrutiny test" and rejected, as circular, the argument
that by definition and usage "marriage" is only a relationship between a man
and a woman, and that persons of the same sex are biologically unable to
satisfy the definition of the status to which they aspire.
In contrast, New York cases have defined marriage as a
relationship of one man and one woman under the obligation to discharge to
each other those duties imposed by law on the relationship of husband and
wife. It has applied "rational basis" test to similar equal protection claims
and may continue to do so.
FN1. Maynard v. Hill, (1888) 125 US 190, 31 L Ed 654, 8 S Ct
723
FN2. Fearon v. Treanor, 272 NY 268, 5 NE2d 815 (1936)
FN3. Clayton v. Wardell, (1850) 4 NY 230.
FN4. Cropsey v. Ogden, (1854) 11 NY 228.
FN5. Wade v. Kalbfleisch, (1874) 58 NY 282.
FN6. Cropsey v. Ogden, supra.
FN7. Hanfgarn v. Mark, (1937) 274 NY 22, 8 NE2d 47.
FN8. Fearon v. Treanor, supra.
FN9. Maynard v. Hill, supra.
FN10. Re May's Estate (1953) 305 NY 486, 114 NE2d 4; Van
Voorhis v. Brintnall (1981) 86 NY 18].
FN11. Cunningham v. Cunningham, (1912) 206 NY 341, 99 NE 845;
Thorp v. Thorp, (1882) 90 NY 602
FN12. Cruickshank v. Cruickshank, (1048) 193 Misc 366; Wilcox
v. Wilcox, (1887, NY) 46 Hun 32.
FN13. Van Voorhis v. Brintnall, supra
FN14. Bell v. Little (1923) 204 App Div 235, 197 NYS 674, affd
237 NY 519, 143 NE 726; Re May's Estate, supra.
FN15. Mirizio v. Mirizio, 242 NY 74 (1924).
FN16. 852 P2d 44
FN17. (1971) 291 Minn 310, 191 NW2d 185.
FN18. 168 Misc2d 898, 645 NYS2d 286
FN19. 187 AD2d 128, 592 NYS2d 797 (2d Dept. 1993)
FN20. Other decisions in accord with Baker v. Nelson include:
Singer v. Hara, (1974) 11 Wash App 247, 522 P2d 1187, review den 84 Wash 2d
1008; Jones v. Hallahan, (1973 Ky) 501 SW2d 588, 63 ALR3d 1195; DeSanto v.
Barns, 328 Pa.Super 181, 476 A2d 952; Frances B. v. Mark B., 78 Misc2d 112,
355 NYS2d 712; Anonymous v. Anonymous, 67 Misc2d 982, 325 NYS2d 499.
FN21. Craig v. Boren, 429 U.S. 190; Cleburne v. Cleburne
Living Ctr., 473 US 432.
FN22. Baker v. Nelson, 409 US 810, 34 L. Ed2d 65, 93 S.Ct. 37.
FN23. Hicks v. Miranda, 422 US 332.
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. They co-authored, with the late Doris Jonas Freed
and Henry H. Foster, Law and the Family New York, and co-authored Law and the
Family New York Forms (both, Lawyers Cooperative Publishing).
1/28/97 NYLJ 3, (col. 1)
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