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Benchmarks: Journal of the New York State Unified Court System

Summer 2006

Divided Court of Appeals:
Upholds Ban on Same-Sex Marriage and
Overrules Depraved Indifference Precedent

A DIVIDED COURT OF APPEALS HAS FOUND THAT THE NEW YORK STATE Constitution does not require granting same-sex couples the right to marry. In a 4-2 decision on July 6 (Hernandez v. Robles and companion cases), the majority held that “[w]hether such marriages should be recognized is a question to be addressed by the Legislature” and urged that the question be presented to it.

The majority concluded that under the rational-basis standard of review there were at least two grounds that rationally supported allowing only opposite-sex couples to marry, both relating to “the undisputed assumption that marriage is important to the welfare of children.”

“First, the Legislature could rationally decide that ... it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships.” Second, “[t]he Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father.” Even with exceptions, the legislature could find the general rule “will usually hold.”

The majority rejected plaintiffs’ arguments that the restriction called for strict or heightened scrutiny. Although there has been “serious injustice” in the treatment of homosexuals, the majority said plaintiffs failed to persuade them “that this long-accepted restriction is a wholly irrational one, based solely on ignorance and prejudice against homosexuals.”

The majority opinion was written by Judge Robert S. Smith and joined in by Judges Susan Phillips Read and George Bundy Smith. Judge Victoria A. Graffeo concurred in the result in a separate opinion.

Chief Judge Judith S. Kaye dissented, joined by Judge Carmen Beauchamp Ciparick, saying the right to marry is a fundamental one (triggering a heightened level of scrutiny) and drawing a comparison to the U.S. Supreme Court’s 1967 decision Loving v. Virginia (388 US 1) that declared unconstitutional state law barring interracial marriage.

“Under our Constitution, discriminatory views about proper marriage partners can no more prevent same-sex couples from marrying than they could different-race couples,” wrote Chief Judge Kaye. “Solely because of their sexual orientation, however — that is, because of who they love — plaintiffs are denied the rights and responsibilities of civil marriage.”

The dissent said the restriction does not even meet the rational-basis standard of review because excluding same-sex couples from marriage in no way furthers the legitimate state interest in encouraging opposite-sex couples to marry before they have children.

The Domestic Relations Law does not explicitly prohibit same-sex marriage, but its terminology makes clear that marriage is limited to a man and a woman. Plaintiffs were 44 same-sex couples who were denied marriage licenses and sought declaratory judgments that limiting marriage to opposite-sex couples violated the state constitution.

Judge Albert M. Rosenblatt took no part in the decision.

In People v. Feingold, issued July 5, a divided court overruled People v. Register (60 NY2d 270), holding, 4-3, that the relevant standard for determining whether a defendant acts with “depraved indifference to human life” depends on defendant’s culpable mental state rather than on “an objective assessment of the risk involved.”

The decision turned not on Feingold’s conduct but on the trial judge’s explicit finding, after a nonjury trial, that Feingold’s state of mind was not one of depraved indifference. On constraint of Register, which said depraved indifference does not implicate a subjective mental state, the judge found Feingold guilty of first-degree reckless endangerment. Writing for the majority, Judge George Bundy Smith said the conviction could have been upheld “had the fact-finder simply announced a guilty verdict” — i.e., the evidence was sufficient for the fact-finder to have inferred the requisite mental state.

Although Register involved a murder charge and Feingold a first-degree reckless endangerment charge, the depraved indifference language in the two statutes is identical.

Judges Rosenblatt, Read and R.S. Smith concurred in the decision.

In separate opinions, Chief Judge Kaye, Judge Ciparick and Judge Graffeo dissented, all finding that depraved indifference does not have a subjective mens rea requirement. Chief Judge Kaye wrote: “The People did not need to prove, as opined by the trial judge, that defendant acted ‘because of his lack of regard for the lives of others’ (emphasis added), but merely that he acted with such disregard.”

The majority and dissenting opinions addressed not only Register but also its progeny — a line of cases struggling with whether or under what circumstances a charge of intentional murder may result in a conviction for depraved indifference murder. That question may soon be resolved. On July 6, the court accepted a certified question on this issue from the U.S. Second Circuit Court of Appeals in Policano v. Herbert.

Court of Appeals’ decisions are online at www.nycourts.gov/ctapps/.

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On-Line Access to Court Records Tested  2006 Law Day  Court of Appeals Decides Same-Sex Marriage & Depraved Indifference Cases  A Year As COSCA’s President  For the Record  Court Clerks:Unsung Heroes of the Courthouse  New Uncontested Divorce Packets  The Courts Closest to the People:The Town & Village Courts  City, Town & Village Resource Center  Justice Courts Action Plan  Improvements in Interpreting Services  UCS Technology Update  Report Calls for Overhaul of the Indigent Defense System  Judicial Association Spotlight  Historic New York State Courthouses and Trials  Did You Know?  Judicial Institute Highlights  JI Hosts Voter Education Symposium

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Web page updated: September 1, 2006 - www.NYCOURTS.gov