People v. Greenleaf

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: "[The] husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." (People v Liberta, 64 NY2d 152, 162 [1984] [emphasis added], quoting 1 Hale, History of Pleas of the Crown, at 629.) The Court rejected all the justifications the State offered, finding that "the traditional justifications . . . no longer have any validity." (64 NY2d at 164.) 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 Lippold, 32 Cal 2d 711, 727, 198 P2d 17, 27 [Sup Ct 1948], citing Shelley v Kraemer, 334 US 1 [1948].)

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. (Domestic Relations Law § 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. (Domestic Relations Law § 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 "(t)he God of nature made it otherwise"].) The United States Supreme Court finally rejected this restriction on marriage as unconstitutional in 1967. (Loving v Virginia, 388 US 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 (at 3): "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages." 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 mem of law at 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, at 2.) 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.

Citing "procreation" as a broad justification for denying marriage to same-sex couples displays an antigay 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 NYCRR 421.16 [h] [2] [single gay men and lesbians may adopt children]; Matter of Carolyn B., 6 AD3d 67 [4th Dept 2004] [the sexual orientation of the petitioners is of no significance because the goal of the statute is to encourage adoption of children]; Guinan v Guinan, 102 AD2d 963 [3d 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, and 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 US 558 [2003].)

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 United States General Accounting Office has identified 1,049 federal laws in which benefits, rights, and privileges are contingent on marital status. (See US Gen Acct Off, Defense of Marriage Act, GAO/OGC-97-16 [Washington, D.C., Jan. 31, 1997]; US Gen Acct Off, 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 [ (accessed July 11, 2004), cached at ].) 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.

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 US 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 US 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 Assoc. Co., 74 NY2d 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 NY2d 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 Matter of Carolyn B., 6 AD3d 67 [4th Dept 2004]; Guinan v Guinan, 102 AD2d 963 [3d 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, 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. (2004 Ops Atty Gen No. I 2004-1, at 19 [Mar. 3, 2004].) The Honorable 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, 4 Misc 3d 605, 608 [New Paltz Just Ct 2004].) The United States 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 US 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 (at id.) "what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising `[t]he liberty protected by the Constitution' . . .? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry." For the reasons stated herein, the motion to dismiss the charges against the defendants is granted, and the charges are dismissed. [*] The Attorney General has informed this court that it chooses not to participate "at this stage," and asks the court not to draw an adverse inference from this decision. None is drawn, but it is noted that any reasons the State has to justify its actions should be presented at this time, and not after the court has already ruled.