SAME-SEX MARRIAGE — NEW YORK COURT OF
APPEALS DENIES INDIVIDUALS THE ABILITY TO
MARRY THEIR SAME-SEX PARTNERS. Hernandez v.
Robles, 855 N.E.2d 1 (N.Y. 2006).
Josef W. Mintz*
I. INTRODUCTION
In Hernandez v. Robles,1 a plurality of the Court of Appeals of New
York upheld the constitutionality of a statute that prohibits marriages
between same-sex couples. The plurality deferred the permissibility of samesex marriage in New York to the state legislature. This Comment will
examine the court’s treatment of the due process and equal protection
arguments of the parties to the case, and analyze the constitutional decisionmaking techniques employed by the several opinions of the court.
This Comment concludes that the plurality opinion of the Hernandez
court erroneously selected the highly deferential minimum rationality
standard of review and improperly applied it. Had the plurality considered
the full scope of arguments available, it would have been forced to apply
heightened scrutiny and recognize that the statute in question deprived
plaintiffs of their fundamental right to marry the spouse of their choice while
impermissibly discriminating against plaintiffs’ sex and sexual orientation.
* J.D. Candidate, Rutgers University School of Law—Camden, May 2008; B.A.,
Vassar College, 2002. Thank you to my family, especially Shari. Also, thank you to Professor
Ann E. Freedman for her helpful comments on an earlier draft.
1. 855 N.E.2d 1 (N.Y. 2006).
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II. STATEMENT OF THE CASE
Hernandez was a consolidated action comprising four separate suits
involving a total of forty-four same-sex couples, each seeking a valid New
York State marriage license.2 Plaintiffs represented a wide variety of socioeconomic backgrounds from across the State of New York.3 Defendants were
the separate licensing authorities of New York City, Albany and Ithaca, the
New York State Department of Health, and the State itself.4
In each of the consolidated cases, plaintiffs challenged the
constitutionality of the various sections of the New York Domestic Relations
Law (“DRL”) that mandated marriage to be between a man and a woman.5
The holdings of the lower courts differed: one of the trial courts ruled in
favor of plaintiffs6 and the other three courts ruled in favor of defendants.7 At
the appellate level, defendants were uniformly victorious; the highly
deferential rational-basis standard of review was applied to plaintiffs’ due
process and equal protection claims.8
2. See Kane v. Marsolais, 808 N.Y.S.2d 566 (N.Y. App. Div. 2006), aff’d sub nom.
Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006); Samuels v. State Dep’t of Health, 811
N.Y.S.2d 136 (N.Y. App. Div. 2005), aff’d sub nom. Hernandez v. Robles, 855 N.E.2d 1
(N.Y. 2006); Hernandez v. Robles, 794 N.Y.S.2d 579 (N.Y. Sup. Ct. 2005), rev’d, 805
N.Y.S.2d 354 (N.Y. App. Div. 2005), aff’d, 855 N.E.2d 1 (N.Y. 2006); Seymour v. Holcomb,
790 N.Y.S.2d 858 (N.Y. Sup. Ct. 2005), aff’d, 811 N.Y.S.2d 134 (N.Y. App. Div. 2006), aff’d
sub nom. Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006).
3. Hernandez, 855 N.E.2d at 22 (Kaye, C.J., dissenting). Plaintiffs included a doctor, a
police officer, a public school teacher, a nurse, an artist and a state legislator. Id. Many
Hernandez plaintiffs were raising children of varying ages, and many were active in their
communities, serving on local school boards and apartment building cooperative boards. Id.
4. Id. at 5 (plurality opinion).
5. All parties acknowledged that the sections of the DRL in question limited marriage
to opposite-sex couples, though plaintiffs argued that such is impermissible. Id. This was not
always the case. Petitioners in the Kane and Seymour cases unsuccessfully argued that the
DRL implicitly permitted same-sex marriage by virtue of omission of a hard and fast
definition of marriage between a man and a woman. See Kane, 808 N.Y.S.2d at 566; Seymour,
790 N.Y.S.2d at 862-63.
6. The trial-level decision in Hernandez stood out as the single lower-court holding in
favor of plaintiffs in this case. In her opinion, Supreme Court Judge Doris Ling-Cohan
determined that the DRL violated plaintiffs’ fundamental right to marry. Hernandez, 794
N.Y.S.2d at 609.
7. See Kane, 808 N.Y.S.2d at 567; Samuels, 811 N.Y.S.2d at 147; Seymour, 790
N.Y.S.2d at 866.
8. For example, the Appellate Division reversed Judge Ling-Cohan’s trial level
decision. Hernandez v. Robles, 805 N.Y.S.2d 354, 363 (N.Y. App. Div. 2005), aff’d, 855
N.E.2d 1 (N.Y. 2006). The appellate majority found that because the parties agreed that the
DRL discriminated solely on the basis of sexual orientation, the classification was not subject
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III. HISTORY OF THE AREA
State high court decisions regarding same-sex marriage have fostered a
national debate. Beneath the agendas seeking particular results in these
decisions lie the legal arguments both for and against same-sex marriage.
Considering the due process argument for marriage equality, the fundamental
right of marriage is undisputed.9 However, numerous courts have declined to
adopt the view that the right of marriage permits same-sex couples to marry
each other.10 The idea that the fundamental right of marriage includes the
right for one person to marry another regardless of either party’s sex or
sexual orientation has been accepted by only one state high court.11
The gist of the equal protection claims in marriage equality cases is that
state statutes that deny same-sex marriage arguably treat homosexuals
differently on the bases of their sex and sexual orientation.12 However, even
when state high courts find these equal protection arguments compelling,
to strict scrutiny and had not been proven irrational by plaintiffs. Id. at 360-61. The appellate
majority also held there to be no fundamental right to same-sex marriage. Id. at 361-62. The
appellate majority specifically noted that plaintiffs’ reliance on Loving v. Virginia, 388 U.S. 1
(1967), was inapposite as the fundamental right issue in Loving was the “right to be free from
racial discrimination based on the Equal Protection Clause” and not the fundamental right to
marry. Hernandez, 805 N.Y.S.2d at 362; see also Kane, 808 N.Y.S.2d at 567 (affirming order
“for the same reasons stated in [Samuels] . . . .”); Samuels, 811 N.Y.S.2d at 143-147 (applying
rational-basis review and finding for defendants); Seymour, 811 N.Y.S.2d at 135 (finding no
merit to plaintiffs’ constitutional claims).
9. See Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (“Although Loving arose in the
context of racial discrimination, prior and subsequent decisions of this Court confirm that the
right to marry is of fundamental importance for all individuals.”); Loving, 388 U.S. at 12
(“The freedom to marry has long been recognized as one of the vital personal rights essential
to the orderly pursuit of happiness by free men.”).
10. See, e.g., Standhardt v. Superior Court ex rel. County of Maricopa, 77 P.3d 451, 460
(Ariz. Ct. App. 2003) (holding that the historical understanding of marriage as between “one
man and one woman,” supported by various indicia of the “reaffirmation[] of that view,”
mandate the finding that the right to same-sex marriage is not fundamental).
11. See Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 959 (Mass. 2003) (“The
liberty interest in choosing whether and whom to marry would be hollow if the
Commonwealth could, without sufficient justification, foreclose an individual from freely
choosing the person with whom to share an exclusive commitment in the unique institution of
civil marriage.”); see also Lewis v. Harris, 908 A.2d 196, 229 (N.J. 2006) (Poritz, C.J.,
concurring in part and dissenting in part) (arguing that the previously established fundamental
right of marriage should allow plaintiffs the ability to marry their same-sex partners).
12. See Lewis, 908 A.2d at 220 (majority opinion) (holding the disparate treatment
inherent in a law that prevents same-sex couples from obtaining rights “comparable to those
of married couples . . . bears no substantial relationship to a legitimate governmental
purpose”).
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state constitutions may be later amended to specifically define a marriage as
exclusively being between one man and one woman, thus circumventing the
equal protection argument.13
IV. THE COURT’S REASONING
In Hernandez, a plurality of the Court of Appeals of New York held that
the New York State Constitution “does not compel recognition of marriages
between members of the same sex.”14 The court found that the permissibility
of such a right would need to be determined by the state legislature.15 Until
Hernandez, the Court of Appeals had not previously heard the issue of
whether same-sex marriage was permitted under the New York State
Constitution.16
A. The Plurality Opinion
The plurality opinion, authored by Judge R.S. Smith and joined by
Judges G.B. Smith and Read, framed the main issue of the case to be whether
or not a “rational legislature” could have decided to afford marriage benefits
to opposite-sex couples but deny those same benefits to same-sex couples.17
13. Compare Baehr v. Lewin, 852 P.2d 44, 67 (Haw. 1993) (finding that the challenged
statute mandating marriage to be between one man and one woman “denies same-sex couples
access to the marital status . . . thus implicating the equal protection clause of [the Hawaii
Constitution’s] article I, section 5”), with HAW. CONST. art. I, § 23 (effective Nov. 3, 1998)
(“The legislature shall have the power to reserve marriage to opposite-sex couples.”). A
similar situation occurred in Brause v. State, 21 P.3d 357 (Alaska 2001). There, the Alaska
Supreme Court held that plaintiffs’ constitutional claims for marriage equality were “mooted”
by the 1999 amendment to the Alaska constitution mandating marriage to be between one man
and one woman. Id. at 358.
14. Hernandez v. Robles, 855 N.E.2d 1, 5 (N.Y. 2006) (plurality opinion). The New
York version of the due process clause states that “[n]o person shall be deprived of life, liberty
or property without due process of law.” N.Y. CONST. art. I, § 6. New York’s equal protection
clause states:
No person shall be denied the equal protection of the laws of this state or any
subdivision thereof. No person shall, because of race, color, creed or religion, be
subjected to any discrimination in his civil rights by any other person or by any firm,
corporation, or institution, or by the state or any agency or subdivision of the state.”
N.Y. CONST. art. I, § 11.
15. Hernandez, 855 N.E.2d at 5 (plurality opinion).
16. Id. at 9.
17. Id. at 7. Plaintiffs agreed with defendants that the DRL does not permit same-sex
marriage. Id. at 5. Although none of the sections of the DRL relevant to marriage specifically
require marriage to be between a man and a woman, the laws contain certain references to the
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The plurality asserted two bases by which the legislature could rationally
decide to outlaw same-sex marriage.18 First, the plurality found that oppositesex marriage promotes stability in the parenting relationships in which
children are biologically conceived and raised.19 The legislature could
rationally offer “an inducement” to those opposite-sex couples who have
children by offering them the benefits of marriage.20 Second, the legislature
could rationally favor opposite-sex parents over same-sex parents finding
that opposite-sex parents are better suited to raise children than same-sex
parents.21
Having affirmatively answered its question of whether a “rational
legislature” could outlaw same-sex marriage, the plurality then turned to its
constitutional inquiry by asserting that the right to marry is “unquestionably
a fundamental right.”22 However, the plurality found that the right to marry a
member of one’s same sex is not fundamental because it is not “‘deeply
rooted in this Nation’s history and tradition.’”23 Furthermore, because the
relatively narrow definition of marriage which limits the right to oppositesex couples was already found to be rationally based, the plurality did not
consider the need to broaden the right in question to include same-sex
marriage.24
gender-specific roles of husbands, wives, brides and grooms. See N.Y. DOM. REL. LAW § 12
(McKinney 1999) (stating that “the parties [to a marriage] must solemnly declare . . . that they
take each other as husband and wife”); id. § 15(1)(a) (requiring municipal clerks to obtain
information from “the groom” and “the bride”); id. § 5 (prohibiting incestuous marriages
between brothers and sisters, uncles and nieces, as well as aunts and nephews without
mentioning incestuous marriages between members of the same-sex); id. § 50 (stating that the
property of “a married woman . . . shall not be subject to her husband’s control”).
18. Hernandez, 855 N.E.2d at 7 (plurality opinion).
19 . Id.
20. Id. As a justification for this interest, the plurality suggested that it is only oppositesex couples that can become parents by “accident or impulse.” Id. As such, it is opposite-sex
couples, specifically those who suddenly and unexpectedly find themselves pregnant, who
benefit from the legislature’s decision to proscribe same-sex marriage by availing themselves
of the option to marry and thus, facilitate a better environment for their children. Id.
21. Further, the plurality stated that plaintiffs and amici “argue that . . . a home with two
parents of different sexes has no advantage, from the point of view of raising children, over a
home with two parents of the same sex. Perhaps they are right, but the Legislature could
rationally think otherwise.” Id.
22. Id. at 9.
23. Id. (quoting Washington v. Glucksburg, 521 U.S. 702, 721 (1997)).
24. Id. at 9-10. The plurality considered the development of fundamental rights
jurisprudence in Lawrence v. Texas, 539 U.S. 558 (2003), which examined the right of
homosexuals to engage in sodomy, a right rejected in Bowers v. Hardwick, 478 U.S. 186
(1986). Specifically, Lawrence considered the impermissibility of homosexual sodomy
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Turning to the New York equal protection clause, the plurality broached
the threshold determination of the applicable standard of review to apply.25
The plurality immediately excluded strict scrutiny since its application is
predicated on a finding of a denial of a fundamental right.26 Next, the
application of “heightened” or intermediate scrutiny was considered, because
plaintiffs alleged that the DRL discriminates on the basis of sexual
orientation.27 The plurality first considered and rejected plaintiffs’ argument
that the DRL discriminates on the basis of sex, and found that the DRL treats
men and women equally; neither may marry a member of their same sex.28
The plurality then conceded that the DRL does discriminate based on sexual
preference.29 However, under the circumstances, the plurality found that such
discrimination did not trigger heightened scrutiny and, instead, required mere
rational-basis scrutiny since homosexuals have “‘distinguishing
characteristics relevant to interests the State has the authority to
implement.’”30
established in Bowers and permitted the very practice by broadening the fundamental right in
question to become the “right to privacy in intimate relationships.” Hernandez, 855 N.E.2d at
10 (plurality opinion). However, in Hernandez, the plurality found that plaintiffs sought
access to a right “that the legislature has rationally limited to opposite-sex couples” whereas,
in Lawrence, petitioners sought freedom from “state intrusion on intimate, private activity.”
Id. The plurality suggested that if they had found the law in question limiting marriage to
opposite-sex couples to be irrational, the narrow definition would have failed. Id.
25. Hernandez, 855 N.E.2d at 10.
26. Id.
27. Id. Though the plurality proceeded as if plaintiffs had raised an equal protection
claim alleging sex discrimination, the plurality noted that “[p]laintiffs do not argue here that
the legislation they challenge is designed to subordinate either men to women or women to
men as a class.” Id. at 11.
28. Id.
29. Id. The plurality admitted that, because only heterosexual couples may marry,
“[t]hose who prefer relationships with people of the opposite sex and those who prefer
relationships with people of the same sex are not treated alike.” Id.
The question of whether heightened scrutiny should be to applied to sexual
discrimination cases was previously unanswered by New York precedent. See Under 21 v.
City of New York, 482 N.E.2d 1, 10 (N.Y. 1985) (leaving open the question of “whether some
level of ‘heightened scrutiny’ would be applied” in sexual discrimination cases). Accordingly,
the plurality picked up where Under 21 left off, holding specifically that homosexuality does
not merit heightened scrutiny in cases “review[ing] legislation governing marriage and family
relationships.” Hernandez, 855 N.E.2d at 11 (plurality opinion).
30. Hernandez, 855 N.E.2d at 11 (plurality opinion) (quoting City of Cleburne v.
Cleburne Living Ctr., 473 U.S. 432, 441 (1985)). The plurality conceded that heightened
scrutiny may be appropriately applied to some classifications that discriminate on the basis of
sexual orientation. Id. However, the plurality held that “legislation governing marriage and
family relationships” deserved mere rationality review, especially considering that the court
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Finally, the plurality defended its application of rationality review by
extinguishing plaintiffs’ arguments that the DRL creates classifications that
are both underinclusive and overinclusive.31 Plaintiffs asserted that the DRL
is underinclusive since both opposite-sex as well as same-sex couples may
have children.32 However, since the legislature may rationally wish to
incentivize opposite-sex marriage over same-sex marriage, the court found
the degree of underinclusiveness to be tolerable.33 Plaintiffs asserted that the
DRL is overinclusive since not all opposite-sex couples choose to have
children.34 Considering what might be necessary to better tailor the DRL to
meet its asserted ends, the court found that “limiting marriage to oppositesex couples likely to have children would require grossly intrusive inquiries,
and arbitrary and unreliable line-drawing.”35 Accordingly, the plurality held
that the DRL did not offend the New York equal protection clause since the
challenged statute is rationally based.36 The plurality thus concluded its
opinion, pausing to state its hope that “the participants in the controversy
over same-sex marriage will address their arguments to the Legislature.”37
B. Judge Graffeo’s Concurrence
Although Judge Graffeo concurred in the result reached by the plurality,
she wrote separately to elaborate on the applicable standard of review.38
Judge G.B. Smith joined Judge Graffeo’s concurrence.39 Discussing
plaintiffs’ due process argument first, Judge Graffeo gave a precedential
explanation of the rationale for concluding that the fundamental right to
marry cannot be extended to same-sex couples: neither the United States
had identified the promotion of child welfare as a rational end of the DRL and found that “[a]
person’s preference for the sort of sexual activity that cannot lead to the birth of children is
relevant to the State’s interest.” Id.
31. Id. To be overinclusive, a law must “regulate[] individuals who are not similarly
situated, that is, if [the law] covers more people than it needs to in order to accomplish its
purpose.” ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 660 (2d ed.
2002). On the other hand, a law is underinclusive if it “do[es] not regulate all who are
similarly situated.” Id. at 659.
32. Hernandez, 855 N.E.2d at 11 (plurality opinion).
33. Id.
34. Id.
35. Id. at 11-12.
36. Id. at 12; see also supra notes 19-21 and accompanying text (discussing
establishment of rational bases).
37. Hernandez, 855 N.E.2d at 12.
38. Id. at 13 (Graffeo, J., concurring).
39. Id. at 34.
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Supreme Court nor the New York Court of Appeals has considered the right
to marry in any other way than the traditional, opposite-sex context.40 In the
same vein, Judge Graffeo found that plaintiffs’ argument that Loving
established the “right to marry the spouse of one’s choice” to be incorrect, as
Loving was a decision singularly based on the need to avoid racial
discrimination in laws governing marriage.41 Lastly, Judge Graffeo reiterated
the plurality’s dismissal of plaintiffs’ Lawrence argument, distinguishing
Lawrence from the case at bar and finding the two cases to be inapposite.42
Judge Graffeo then turned to plaintiffs’ equal protection claims and
proceeded through her analysis in a manner substantially similar to the
plurality, finding no gender discrimination within the classification created
by the DRL.43 However, with regard to discrimination based on sexual
orientation, Judge Graffeo applied a more pronounced analysis of the DRL
40. Id. at 14-15. (Graffeo, J., concurring). Judge Graffeo found explicit connections
between the traditional definition of marriage and procreation. For support, she relied on
federal precedent establishing that marriage is “‘fundamental to the very existence and
survival of the [human] race.’” Id. at 15 (alteration in original) (quoting Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535, 541 (1942)). Judge Graffeo pointed out that the primacy of
marriage is due to the fact that it is “the primary institution supporting procreation and
childrearing.” Id.
41. Id. at 15-16. Judge Graffeo noted that while Loving, like Skinner, found the right to
marriage to be fundamental, Loving held Virginia’s antimiscegenation statute to be
unconstitutional because it discriminated on the basis of race. Id. at 16. Moreover, while the
Loving Court did discuss the right of one to choose their spouse, such a right was framed
within the need to avoid racial discrimination. Id. Loving held that “‘[t]he Fourteenth
Amendment requires that the freedom of choice to marry not be restricted by invidious racial
discriminations.’” Id. (alteration in original) (emphasis omitted) (quoting Loving v. Virginia,
388 U.S. 1, 12 (1967)).
Judge Graffeo also criticized the two New York cases relied on by plaintiffs to suggest a
gender-neutral definition of marriage, Crosby v. State Workers’ Compensation Board, 442
N.E.2d 1191, 1194 (N.Y. 1982), and People v. Shepard, 409 N.E.2d 840, 842 (N.Y. 1980).
Judge Graffeo asserted that these cases “merely cite[] Loving when including marriage in a list
of [fundamental] rights” without making any decisions regarding the marriage issue itself.
Hernandez, 855 N.E.2d at 16 n.2 (Graffeo, J., concurring).
42. Hernandez, 855 N.E.2d at 17-18 (Graffeo, J., concurring). Unlike the plurality,
which dealt with the distinction between rational and arbitrary line drawing, see supra note 24
and accompanying text, Judge Graffeo found Lawrence to be incomparable to plaintiffs’ case
because “[t]he right affirmed by the Supreme Court in Lawrence is not comparable to the new
right to marry plaintiffs assert here, nor is the Texas statute criminalizing homosexual sodomy
analogous to the [sections of the DRL] under review.” Hernandez, 855 N.E.2d at 18 (Graffeo,
J., concurring).
43. Id. at 19-20. Like the plurality, Judge Graffeo found that “neither men nor women
are disproportionately disadvantaged or burdened by the fact that New York’s Domestic
Relations Law allows only opposite-sex couples to marry.” Id. at 20.
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as a purportedly neutral rule with disparate impact on lesbians and gays but,
like the plurality, found no equal protection violation.44 Finally, Judge
Graffeo agreed with the plurality that rational-basis review ought to be
applied in order to uphold the constitutionality of the DRL.45
C. Chief Judge Kaye’s Dissent
Chief Judge Kaye dissented, finding that the DRL denied plaintiffs their
fundamental right to marriage and violated plaintiffs’ rights under the Equal
Protection Clauses of the New York and Federal Constitutions.46 Utilizing
New York precedent, Chief Judge Kaye found that the “right to marry the
person of one’s choice” is “central” to the fundamental right of marriage.47
Because of the fundamental nature of the right of marriage, and the DRL’s
denial thereof to plaintiffs, Chief Judge Kaye found that strict scrutiny
should be applied and the state must prove that the infringement of plaintiffs’
fundamental rights is “narrowly tailored to achieve a compelling state
interest.”48 However, Chief Judge Kaye found that the plurality improperly
foreclosed that possibility by ruling that same-sex marriage is “not deeply
rooted in tradition” and, as a result, cannot be considered a fundamental
right.49 To this, Chief Judge Kaye responded that the plurality had engaged in
44. Id. at 20. Judge Graffeo found the DRL to be “facially neutral,” as people may seek
marriage licenses regardless of their sexual orientation. Id. Furthermore, the DRL “create[s] a
classification that distinguishes between opposite-sex and same-sex couples” and therefore
has a disparate impact on homosexuals. Id. However, where no “invidious discriminatory
intent” underlies the enactment of such a facially neutral statute, no equal protection claim
may lie. Id. (citing Washington v. Davis, 426 U.S. 229, 240 (1976); Campaign for Fiscal
Equity, Inc. v. State, 655 N.E.2d 661, 669 (N.Y. 1995)). With that, Judge Graffeo noted that
“[p]laintiffs concede that the [DRL] was not enacted with an invidiously discriminatory intent
– the legislature did not craft the marriage laws for the purpose of disadvantaging gays and
lesbians.” Id.
45. Id. at 21-22.
46. Id. at 22 (Kaye, C.J., dissenting).
47. Id. at 22-23 (citing Crosby, 442 N.E.2d at 1194 (“[C]learly falling within [the
individual’s right of privacy] are matters relating to the decision of whom one will marry . . .
.”); People v. Shepard, 409 N.E.2d 840, 842 (N.Y. 1980) (“[T]he government has been
prevented from interfering with an individual's decision about whom to marry . . . .”)).
48. Id. at 23 (citing Carey v. Population Servs. Int’l, 431 U.S. 678, 696 (1977)).
49. Id. at 23; cf. supra note 23 and accompanying text (discussing plurality’s history and
tradition argument). Chief Judge Kaye rebutted the plurality’s conclusion that same-sex
marriage is not “deeply rooted in tradition” and therefore cannot be considered a fundamental
right because the plurality has too narrowly characterized the fundamental right at issue.
Hernandez, 855 N.E.2d at 23 (Kaye, C.J., dissenting). Chief Judge Kaye noted that the
plurality failed to heed the value of the United States Supreme Court’s reversal of its prior ban
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“‘circular reasoning’” by arguing that homosexuals must be excluded from
marriage because the traditional definition of marriage demands such.50
Indeed, following Supreme Court precedent established in Loving, the
fundamental right of marriage must be afforded even “to those whose
exclusion from the right was ‘deeply rooted.’”51 Chief Judge Kaye asserted
that in failing to recognize the fundamental nature of the liberty at stake, the
plurality perpetuated a “constitutional wrong.”52
Turning to plaintiffs’ equal protection claims, Chief Judge Kaye found
that the classification created by the DRL should be subjected to strict
scrutiny for three reasons. First, homosexuals met the criteria for a suspect
class, and as a result, the state must show that the DRL is narrowly tailored
to meet a compelling state interest.53 Second, the DRL discriminated on the
basis of sex because a woman may not marry another woman precisely
“because she is not a man.”54 As a result, the state must show that the DRL is
“substantially related to the achievement of important governmental
objectives.”55 Third, and finally, because the DRL infringed on plaintiffs’
fundamental right to marry, the legislation must be defeated unless it is
shown to narrowly meet compelling state interests.56 As such, Chief Judge
Kaye found that the DRL would be invalidated under strict scrutiny, as
of homosexual sodomy in Lawrence. Id. (“In narrowing the claimed liberty interest to embody
the very exclusion being challenged, Bowers ‘disclose[d] the Court’s own failure to appreciate
the extent of the liberty at stake.’” (alteration in original) (quoting Lawrence v. Texas, 539
U.S. 558, 567 (2003))). Just as “Lawrence rejected the notion that fundamental rights it had
already identified could be restricted based on traditional assumptions about who should be
permitted their protection,” the plurality has accepted that very notion. Id. at 24.
50. Hernandez, 855 N.E.2d at 26 (Kaye, C.J., dissenting) (quoting Halpern v. Toronto,
[2003] 65 O.R.3d 161, 181 (Can. Ct. of App.)). Moreover, seeking to exclude individuals
from the institution of marriage because those individuals have been traditionally excluded
from that institution is “‘conclusory and bypasses the core question’” of whether or not such
individuals may be rightfully excluded. Id. (quoting Goodridge v. Dep’t of Pub. Health, 798
N.E.2d 941, 972-73 (Mass. 2003) (Greany, J., concurring)).
51. Id. at 24.
52. Id. at 26.
53. Id. at 27.
54. Id. at 29. Chief Justice Kaye rebuked the plurality for its “equal application”
argument that the DRL treats men and women equally in that neither may marry a member of
their same sex. Id. (“‘[W]e reject the notion that the mere ‘equal application’ of a statute
containing [discriminatory] classifications is enough to remove the classifications from the
[constitutional] proscription of all invidious . . . discriminations . . . .’” (quoting Loving v.
Virginia, 388 U.S. 1, 8 (1967) (alterations in original))); cf. supra note 28 and accompanying
text (detailing the plurality’s equal application argument).
55. Hernandez, 855 N.E.2d at 29 (Kaye, C.J., dissenting).
56. Id. at 30.
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defendants conceded that neither compelling nor important governmental
interests existed for upholding the classification the DRL creates.57 In the
alternative, Chief Judge Kaye found that rational-basis review must similarly
lead to the defeat of the DRL since, of the purported interests asserted by the
state and applied by the plurality, “none [was] rationally furthered by the
exclusion of same-sex couples from marriage.”58
V. THE AUTHOR’S ANALYSIS
Hernandez is a controversial case for at least two reasons. First,
Hernandez represents New York’s contribution to the recent surge of samesex marriage cases in state high courts.59 Second, Hernandez took the
familiar issue of the permissibility of same-sex marriage and disposed of it in
an unsound way. It is this second reason on which the following analysis
centers.60
The plurality’s opinion in Hernandez is unsound because the means by
which the plurality made its decision leaves considerable room for discussion
of better alternative means. A close examination of the rational bases that the
plurality asserted in its highly deferential opinion shows the numerous flaws
of this standard of review. At the same time, by its nature, rationality review
57. Id. at 27.
58. Id. at 30. Chief Judge Kaye reframed the plurality’s main question posed in applying
rational-basis review as not whether the state has a rational or legitimate interest in supporting
heterosexual marriage, but rather whether the state has a rational basis for prohibiting
homosexuals from marrying. Id.
59. See, e.g., Standhardt v. Superior Court, 77 P.3d 451, 465 (Ariz. Ct. App. 2003)
(upholding statutory ban on same-sex marriages); In re Marriage Cases, 49 Cal.Rptr.3d 675,
686 (Cal. Ct. App. 2006), review granted, 149 P.3d 737 (Cal. 2006); Baehr v. Lewin, 852 P.2d
44, 67 (Haw. 1993) (holding statutory ban on same-sex marriage unconstitutional qua sex
discrimination under equal protection analysis); Goodridge v. Dep’t of Pub. Health, 798
N.E.2d 941, 948 (Mass. 2003) (holding limitation of marriage benefits to opposite-sex couples
to be unconstitutional); Lewis v. Harris, 908 A.2d 196, 200 (N.J. 2006) (holding statutory ban
of same-sex marriage to be unconstitutional); Baker v. State, 744 A.2d 864, 867 (Vt. 1999)
(holding statutory ban of same-sex marriage unconstitutional under common benefits clause of
state constitution); Andersen v. King County, 138 P.3d 963, 968 (Wash. 2006) (upholding
constitutionality of statutory ban of same-sex marriage); see also 1 U.S.C. §7 (2000)
(“Defense of Marriage Act”) (“‘[M]arriage’ means only a legal union between one man and
one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite
sex who is a husband or a wife.”); 28 U.S.C. § 1738C (“Defense of Marriage Act”) (allowing
states to disavow same-sex marriages consummated in other states).
60. Instead of assessing the broader debate, this Comment explores the various
analytical pathways that are available to courts considering the same-sex marriage question
and the extent to which the Hernandez plurality correctly traversed those pathways.
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turns a blind eye to all contrary arguments, such as plaintiffs’ arguments in
Hernandez.
A. Soundness of the Plurality’s Opinion
There are three major areas of weakness in the plurality’s opinion: (1)
the plurality’s decision to employ rational-basis review before considering
plaintiffs’ fundamental rights and equal protection arguments; (2) its failure
to consider alternatives to the history and tradition argument in locating
fundamental rights; and (3) its wooden, formalistic understanding of what
constitutes discrimination under equal protection jurisprudence.
1. Choice of Standard of Review
The plurality’s heavy reliance upon rational-basis review is immediately
apparent from the very beginning of its opinion. The plurality began by
locating rational bases to uphold the challenged sections of the DRL and,
having established such, found that “[o]ur conclusion that there is a rationalbasis for limiting marriage to opposite-sex couples leads us to hold that that
limitation is valid under the New York [d]ue [p]rocess and [e]qual
[p]rotection clauses.”61 With this statement, the plurality seems to have
misunderstood, or at least inaccurately represented, the Supreme Court’s
famous logic expressed in United States v. Carolene Products Co.62 In laying
the groundwork for the application of the varying levels of judicial scrutiny
available, the Carolene Court implied that judges must first determine if
heightened scrutiny ought to be applied before simply deferring to the
legislature.63 The plurality failed to so much as reference the alternatives to
the rational-basis test before framing the main issue as “whether a rational
legislature” could limit marriage to opposite-sex couples.64 Though the
plurality later considered and rejected the availability of heightened and
intermediate scrutiny via due process and equal protection considerations, its
early and seemingly exclusive reliance upon the rational-basis standard
61. Hernandez, 855 N.E.2d at 9 (plurality opinion).
62. 304 U.S. 144, 152 n.4 (1938) (holding that a “more searching judicial inquiry”
ought to be deployed when the challenged statute interferes with individual rights, restricts the
operation of the political process or discriminates against “discrete and insular minorities”).
63. Id.
64. Hernandez, 855 N.E.2d at 7 (plurality opinion).
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belies whatever thoughtful deliberation upon the proper standard of review
the plurality employed.65
Even assuming rationality review is the correct standard of review in this
case, the plurality’s asserted rational bases66 do not pass minimum
rationality’s muster. First, the rational bases asserted by the plurality do not
rationally promote child welfare. Instead, denying to same-sex couples who
raise children the numerous rights and benefits that come with a legally
recognized marriage disadvantages their children.67 Second, the plurality’s
asserted rational bases do not further the state’s interest in encouraging
procreation within marriage. It is well established that a requirement of
procreation in marriage cannot pass rational-basis review.68 Finally, it is
65. Perhaps Judge Graffeo, in concurring only in the result that the plurality reached,
considered the plurality’s hasty deployment of rational-basis review as a sign of analytical
impropriety. To this possible end, Judge Graffeo noted that the primary purpose of her
concurrence was to properly determine the “level of constitutional review” to be applied in
this case. Id. at 12 (Graffeo, J., concurring). Furthermore, Judge Graffeo, before settling on the
application of rational-basis scrutiny, first methodically ruled out the application of
heightened and intermediate scrutiny, in accordance with the dictates of Carolene Products.
Id. at 14-20.
66. All of the plurality’s legitimate interests include the welfare of children. The essence
of these interests is the notion that unmarried opposite-sex couples who are pregnant or
contemplating becoming pregnant and married opposite-sex couples who already have
children deserve some sort of incentive to become or remain legally obligated to each other
via the institution of marriage. See supra notes 19-21 for a more detailed description of the
plurality’s rational bases.
67. The plurality itself noted that some 316 separate benefits are conferred to married
individuals. Hernandez, 855 N.E.2d at 6 (plurality opinion). To this, Chief Judge Kaye
considered the “tens of thousands” of children being raised by same-sex couples in New York
and concluded that prohibiting their same-sex parents from marrying actually undermines
their welfare. Id. at 32 (Kaye, C.J., dissenting). Chief Judge Kaye pointed out that the Court of
Appeals has considered the same premise and ruled against it when holding that unmarried,
same-sex partners may adopt each others’ children. Id. (citing In re Jacob, 660 N.E.2d 397,
398 (N.Y. 1995) (“To rule otherwise would mean that the thousands of New York children
actually being raised in homes headed by two unmarried persons could have only one legal
parent, not the two who want them.”)).
An accurate count of exactly how many same-sex couples are raising children in New
York or the United States is hard to come by. However, estimates of same-sex households
raising children in the United States range from one to five million. See WILLIAM N. ESKRIDGE
JR., EQUALITY PRACTICE: CIVIL UNIONS AND THE FUTURE OF GAY RIGHTS xi (2002).
68. Chief Judge Kaye found that “the ability or desire to procreate is not a prerequisite
for marriage.” Hernandez, 855 N.E.2d at 30 (Kaye, C.J., dissenting). As Chief Judge Kaye
pointed out, even Justice Scalia has agreed that rational-basis review of legislation denying
marriage to gay and lesbian couples is not served by a procreative argument. Id. As he
dissented in Lawrence “what justification could there possibly be for denying the benefits of
marriage to homosexual couples exercising the liberty protected by the Constitution? Surely
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improper to suggest, as the plurality does, that the state could rationally favor
heterosexual parents over homosexual parents. A state preference of
heterosexual parents over homosexual parents would be a “flagrant” equal
protection violation as it would acknowledge “purposeful discrimination”
and the preference would stand contrary to the legislative policy of New
York.69 Thus, even though the plurality correctly held that the New York
equal protection clause is “‘no broader in coverage than the Federal
provision,’”70 the plurality structured its rational-basis review in a way that
undermines federal precedent.71
2. The Fundamental Right of (Same-Sex?) Marriage
The right to marriage is recognized as a fundamental right in New
York.72 The Hernandez plurality, in denying plaintiffs the due process relief
not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”
Lawrence v. Texas, 539 U.S. 558, 605 (2003) (Scalia, J., dissenting) (internal quotations
omitted).
69. Hernandez, 855 N.E.2d at 32 (Kaye, C.J., dissenting) (citing N.Y. COMP. CODES R.
& REGS. tit. 18, § 421.16(h)(2) (2006) (stating that applicants for adoption “shall not be
rejected solely on the basis of homosexuality”)). Judge Graffeo, based on her analysis of
discriminatory intent, see supra note 44 and accompanying text, would likely agree that such a
preference for opposite-sex parents, if actually articulated by the legislature, would fail
judicial review under the equal protection clause.
70. Hernandez, 855 N.E.2d at 9 (plurality opinion) (quoting Under 21 v. City of New
York, 482 N.E.2d 1, 7 n.6 (N.Y. 1985)).
71. The plurality’s only proffered explanation as to how limiting marriage to oppositesex couples actually benefits children is severely underinclusive: the welfare of those children
who are conceived in some manner other than heterosexual intercourse is neglected. Similarly,
the welfare of those children who are heterosexually conceived but adopted by a homosexual
couple is neglected. The plurality felt confident that the state’s conscious efforts to undermine
the welfare of these children is acceptable, simply because the “legislature could rationally
proceed on the commonsense premise that children will do best with a mother and father in
the home.” Id. at 8 (citing Goodridge v. Dep’t of Pub. Health, 798 N.E.2d 941, 979-980
(Mass. 2003) (Sosman, J., dissenting)).
For an interesting critique of the application of state high court rationality review upon
positive grants of rights to individuals, see Helen Hershkoff, Positive Rights and State
Constitutions: The Limits of Federal Rationality Review, 112 HARV. L. REV. 1131, 1169
(1999). Of course, the idea that marriage is a positive right is a topic beyond the scope of this
analysis, however, for a theory that places marriage well within the context of positive grants
of rights, see generally NANCY F. COTT, PUBLIC VOWS: A HISTORY OF MARRIAGE AND THE
NATION 200-27 (2000).
72. See Crosby v. State Workers’ Comp. Bd., 442 N.E.2d 1191, 1194 (N.Y. 1982)
(“[C]learly falling within [the constitutional right to privacy] are matters relating to the
decision of whom one will marry. . . .”).
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that they sought, 73 refused to locate the right of same-sex marriage as within
the fundamental right of marriage.74 The reasoning employed by the plurality
to reach this conclusion is unsound because the plurality quickly and
unpersuasively concluded that plaintiffs’ arguments to the contrary were
without merit.
The plurality correctly noted that the existence of a fundamental right is
predicated on that liberty being “‘deeply rooted in this Nation’s history and
tradition.’”75 However, the plurality then concluded that “[t]he right to marry
someone of the same sex . . . is not deeply rooted” simply because such a
right has only been asserted recently.76 The plurality then went on to discuss
its choice to narrowly define the right at stake as “[t]he right to marry
someone of the same sex” with no further discussion of the critical lack of
deep roots of the liberty that plaintiffs seek. 77
While deep roots of an asserted liberty are helpful in locating a
fundamental right, they are not dispositive of the existence of such a right.
For example, in Lawrence, the Supreme Court noted that “[h]istory and
tradition are the starting point but not in all cases the ending point of the
73. Reply Brief for Plaintiffs-Appellants at 9, Hernandez v. Robles, 855 N.E.2d 1 (N.Y.
2006) (No. 103434/04) (“Plaintiffs seek to exercise a right this Court has already recognized:
the fundamental right to marry the person of one’s choice, free from unwarranted government
interference.”).
74. See supra notes 22-24 and accompanying text.
75. Hernandez, 855 N.E.2d at 9 (plurality opinion) (quoting Washington v. Glucksburg,
521 U.S. 702, 721 (1997)).
76. Id. (citation and internal quotations omitted). The plurality did properly
acknowledge that New York courts have, at times, been more protective of substantive due
process rights guaranteed by the New York State constitution than the federal courts have
been with the “federal counterpart.” Id. The plurality qualified its assertion by pointing out
that New York has only adopted a more liberal reading of its due process clause in cases
regarding criminal defendants or prisoners. Id.
77. Id. The Hernandez dissent believed that the plurality made the same mistake that the
U.S. Supreme Court made in Bowers, only to later chastise itself in Lawrence for “‘fail[ing] to
appreciate the extent of the liberty at stake.’” Id. at 23 (Kaye, C.J., dissenting) (quoting
Lawrence v. Texas, 539 U.S. 558, 567 (2003)). According to the dissent, Bowers “narrow[ed]
the claimed liberty interest to embody the very exclusion being challenged.” Id. The Supreme
Court has warned against excessively narrow interpretations of substantive due process in the
past. See id. at 23-24 (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847
(1992) (“It is also tempting . . . to suppose that the Due Process Clause protects only those
practices, defined at the most specific level, that were protected against government
interference by other rules of law when the Fourteenth Amendment was ratified. But such a
view would be inconsistent with our law.” (citations omitted))).
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substantive due process inquiry.”78 The reason for this crucial limitation on
the probative value of history and tradition is simply that, as times change,
the liberties seen as fundamental may change as well.79 In recognition of this,
Chief Judge Kaye, in dissent, noted that various groups have been granted
fundamental rights despite their historical exclusion from enjoying those
very liberties.80 To wit, plaintiffs in Loving were historically excluded from
the fundamental right of marriage because of the Virginia antimiscegenation
statute in place, yet the Supreme Court did not hesitate to uphold plaintiffs’
asserted right to marriage as fundamental.81
78. Lawrence, 539 U.S at 572 (quoting County of Sacramento v. Lewis, 523 U.S. 833,
857 (1998) (Kennedy, J., concurring)).
79. See, e.g., id. at 579 (“[T]imes can blind us to certain truths and later generations can
see that laws once thought necessary and proper in fact serve only to oppress.”); City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 466 (1985) (Marshall, J., concurring)
(“[W]hat once was a natural and self-evident ordering later comes to be seen as an artificial
and invidious constraint on human potential and freedom.” (citation and internal quotations
omitted)).
80. New York, in contexts other than marriage, has granted due process rights to groups
that had traditionally been excluded from them. See Hernandez, 855 N.E.2d. at 24 n.1 (Kaye,
C.J., dissenting) (citing In re Raquel Marie X., 559 N.E.2d 418, 419 (N.Y. 1990) (granting
child custody rights to unwed fathers, despite the traditional exclusion of the practice); Rivers
v. Katz, 495 N.E.2d 337, 342-43 (N.Y. 1986) (granting the mentally disabled the right to
refuse medical treatment, despite the traditional exclusion of the practice)). See also PETER J.
GALIE, THE NEW YORK STATE CONSTITUTION: A REFERENCE GUIDE 49 (1991) (discussing New
York Court of Appeals precedent holding “broader” range of due process protections than
those protected under the Federal Constitution).
81. Chief Judge Kaye ultimately concluded that “even though it was the ban on
interracial marriage—not interracial marriage itself—that had a long and shameful national
tradition, the Supreme Court determined [in Loving] that interracial couples could not be
deprived of their fundamental right to marry.” Hernandez, 855 N.E.2d at 25 (Kaye, C.J.,
dissenting).
In contrast to the plurality, Chief Judge Kaye contended that Loving’s holding is not
confined to race discrimination. Id. The Court in Loving overturned Virginia’s
antimiscegenation law not only because race is a suspect class, but also because the law in
question infringed on the Lovings’ fundamental right to marry. Id. Here, Chief Judge Kaye
cited the United States Supreme Court’s decision in Zablocki v. Redhail, noting that the
Court’s opinion in Loving
“could have rested solely on the ground that the statutes discriminated on the basis of
race in violation of the Equal Protection Clause. But the Court went on to hold that
the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due
Process Clause, the freedom to marry.”
Id. (quoting Zablocki v. Redhail, 434 U.S. 374, 383 (1978)); see also Carlos A. Ball, The
Positive in the Fundamental Right to Marry: Same-Sex Marriage in the Aftermath of
Lawrence v. Texas, 88 MINN. L. REV. 1184, 1223-31 (2004) (providing a detailed argument as
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3. The Plurality’s Equal Protection Analysis
a. Discrimination Based on Sexual Orientation
The plurality employed unsound reasoning in finding that the DRL
fostered no impermissible discrimination based on sexual orientation. While
there has been neither a Supreme Court82 nor a New York Court of Appeals83
decision as to what level of scrutiny, other than rational-basis review, should
apply in cases alleging discrimination based on sexual orientation, the
plurality recognized that the DRL “does confer advantages on the basis of
sexual preference.”84 The plurality’s sole justification in not granting
homosexuals strict scrutiny under the DRL was that rational-basis scrutiny is
appropriate where individuals classified by a statute “‘have distinguishing
characteristics relevant to interests the State has the authority to
implement.’”85 This justification is based on precedent that is arguably
inapposite to the case under review.86
to the faults of the history and tradition justification often used to defeat due process
challenges to same-sex marriage).
82. In Romer v. Evans, the United States Supreme Court invalidated a Colorado law that
repealed all state legislation outlawing discrimination against homosexuals utilizing rationalbasis review. 517 U.S. 620, 635 (1996). However, the Court has not yet considered the issue
of whether classifications based on homosexuality ought to be subject to heightened or, in the
alternative, intermediate scrutiny.
83. See supra note 29.
84. Hernandez, 855 N.E.2d at 11 (plurality opinion).
85. Id. (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441 (1985)).
86. The plurality’s reliance upon Cleburne was misplaced because Cleburne, in finding
that rationality review ought to apply to a statute governing a classification over which the
state has relevant regulatory authority, referred to the Court’s prior holding in Massachusetts
Board of Retirement v. Murgia, 427 U.S. 307 (1976). In Murgia, the Court held that rationalbasis review of age classifications was permissible because those subject to age classifications
have not “been discriminated against on the basis of race or national origin, have not
experienced a ‘history of purposeful unequal treatment’ or been subjected to unique
disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.” Id.
at 313. However, homosexuals have historically experienced discrimination based on
inaccurate stereotypes. See, e.g., infra note 87 (discussing the New York Legislature’s finding
of purposeful discrimination against homosexuals in passing the Sexual Orientation Non
Discrimination Act (“SONDA”)). Even the plurality admitted to the dearth of conclusive
scientific evidence on the abilities of same-sex couples to raise children. Hernandez, 855
N.E.2d at 8 (plurality opinion). Therefore, the “authority” that the plurality afforded the state
to maintain the DRL’s sexual orientation classifications is based on nothing more than
stereotypical knowledge, not truly indicative of the relevant abilities of same-sex couples.
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The three-part analysis for locating a suspect class suggested by Chief
Judge Kaye87 presents a sturdy counterargument to the plurality. The threestep inquiry, though not attributed with precedential backing in her opinion,
has been recognized by federal courts.88 Moreover, plaintiffs, in their moving
papers, argued for the application of this same three-step inquiry.89 The
plurality’s unwillingness to address plaintiffs’ concerns is certainly
problematic, but the plurality’s ability to apply the three-step inquiry was
undermined by its exclusive reliance upon Cleburne.90
b. Discrimination Based on Sex
In concluding that the DRL is free of sex discrimination, the plurality
ignored all but the most abstract, formal notions of equality. To find, as the
87. Hernandez, 855 N.E.2d at 27-28 (Kaye, C.J., dissenting). Chief Judge Kaye
identified three criteria used by the Supreme Court to determine whether a group marginalized
by a legislative classification should be deemed a suspect class. Id. The first criterion was
whether the group has been the subject of “purposeful discrimination.” Id. Here, Chief Judge
Kaye considered the New York Legislature’s passage of the SONDA as evidence of such
discrimination and referred specifically to the legislature’s findings that “‘many residents of
this state have encountered prejudice on account of their sexual orientation.’” Id. (citation
omitted). The second criterion was “whether the trait used to define the class is unrelated to
the ability to perform and participate in society.” Id. Chief Judge Kaye found one’s sexual
orientation to be “obviously” irrelevant to one’s ability to participate in society. Id. The third
and final criterion was “the group’s relative political powerlessness.” Id. Chief Judge Kaye
was not persuaded by defendants’ argument that the passage of SONDA evidences the relative
political power of homosexuals. Id. Chief Judge Kaye noted that not only did SONDA
repeatedly fail on the floor of the legislature for thirty-one years following its introduction in
1971, but the passage of antidiscrimination legislation has traditionally signaled the precise
need for the application of heightened scrutiny. Id.
88. See, e.g., Steffan v. Cheney, 780 F. Supp. 1, 5 (D.D.C. 1991) (citing Bowen v.
Gilliard, 483 U.S. 587, 602-03 (1987)) (holding that a suspect class is manifest if members of
a group: “1) have suffered a history of discrimination; 2) exhibit obvious, immutable, or
distinguishing characteristics that define him as a member of a discrete group; and 3) show
that the group is a minority or politically powerless, or alternatively show that the statutory
classification at issue burdens a fundamental right.”), rev’d on other grounds sub nom. Steffan
v. Perry, 41 F.3d 677 (D.C. Cir. 1994).
89. See Reply Brief for Plaintiffs-Appellants at 37-38, Hernandez v. Robles, 855 N.E.2d
1 (N.Y. 2006) (No. 103434/04) (arguing for application of the three-criteria approach for
finding a suspect class). Plaintiffs argued for the application of the identical three-criteria
approach as it was articulated in San Antonio Independent School District v. Rodriguez, 411
U.S. 1, 28 (1973). Reply Brief for Plaintiffs-Appellants, supra, at 37-38.
90. See supra notes 85-86. For a detailed application of the three-factor test concluding
that homosexuals are a suspect class, see generally Eric A. Roberts, Note, Heightened Scrutiny
Under the Equal Protection Clause: A Remedy to Discrimination Based on Sexual
Orientation, 42 DRAKE L. REV. 485, 493-510 (1993).
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plurality did, no incidence of discrimination based on sex simply because
both gay men and lesbians are equally prohibited from marrying their
respective same-sex partners is not sound. Such a finding failed to address
the reality that a woman cannot marry another woman precisely because she
is a woman and a man cannot marry another man because he is a man. As
Chief Judge Kaye asserted in her dissent, the plurality’s reliance on such an
“equal application” argument is improper according to Loving.91 If the
plurality were to employ the intermediate scrutiny standard that is
constitutionally required for evaluating sex classifications, the DRL could
not be upheld.92
B. The Implications of the Plurality’s Decision
Hernandez affects the ability of future New York cases to be decided
based on compelling policy rationales because the plurality established an
extremely high threshold of irrationality, which is not likely to be met by all
but the most conclusive policy evidence. In upholding the constitutionality of
the classification created by the DRL, the plurality found that empirical
studies “do not establish beyond doubt that children fare equally well in
same-sex and opposite-sex households.”93 The plurality conceded that these
same empirical studies contain “limited observation” that concludes that
there are “no marked differences” between children of same-sex and
91. See supra note 54 and accompanying text. In his dissent at the appellate level, Judge
Saxe noted the similarities between the logic of Loving and the need to apply similar
reasoning to the case at bar. See Hernandez v. Robles, 805 N.Y.S.2d 354, 385 (N.Y. App. Div.
2005) (Saxe, J., dissenting) (“That the law equally denies both sexes the right to marry one of
their own gender does not remove it from the category of gender discrimination, just as
equally denying members of different races the right to marry someone of another race is still
race discrimination.”), aff’d, 855 N.E.2d 1 (N.Y. 2006).
92. In United States v. Virginia, 518 U.S. 515 (1996), the Supreme Court articulated the
intermediate scrutiny standard of review as it applies to sex segregation. There, the Court held
that the actual purpose of the policy of excluding women from admission to Virginia Military
Institute was discriminatory to women in general. Id. at 534. To uphold such a practice, the
government was required to show, in an “exceedingly persuasive” manner, that a gender
neutral admissions policy would not work as well as the male-only admissions policy. Id. at
533. Because the government did not meet this burden, the male-only admissions policy was
found to violate the equal protection clause. Id. at 534. With regard to Hernandez, if the
intermediate scrutiny standard were applied to the DRL, plaintiffs would prevail as defendants
have not met or exceeded the “exceedingly persuasive” threshold.
For a critical assessment of the prevalence of sex discrimination in same-sex marriage
cases, see Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex
Discrimination, 69 N.Y.U. L. REV. 197, 208-214 (1994).
93. Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006).
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opposite-sex households.94 However, the finding of a lack of differences is
not nearly as persuasive as the “conclusive scientific evidence” that the
plurality requires.95
Rationality review, by its nature, must dispense with counterarguments,
deferring the wisdom required to choose between the divergent arguments to
the legislature. Furthermore, as the plurality notes, the legal standard that
applies to rational-basis review in New York casts rationality review as “‘a
paradigm of judicial restraint.’”96 However, by refusing to consider
compelling evidence that strongly suggests the irrationality of the
classification created by the DRL, the plurality has raised the bar of
irrationality to one which insists upon only the most conclusive, objectively
verifiable data.
VI. CONCLUSION
In Hernandez v. Robles, the New York Court of Appeals stopped the
progression of same-sex marriage equality in the New York courts dead in its
tracks. By refusing to acknowledge compelling substantive due process,
equal protection and policy arguments that mandate the formal recognition of
marriage equality for same-sex couples, the plurality maintained the DRL’s
implicit and explicit prohibition of same-sex marriage. In so doing, the
plurality overlooked numerous arguments, the discussion and thoughtful
94. Id.
95. Id. It is difficult to conceive of a policy argument with the evidentiary integrity to
overcome the plurality’s deferential standard. Indeed, the plurality was not persuaded by the
assertion by the American Psychological Association, the American Psychiatric Association
and the New York State Psychiatric Association that “there is no scientific basis for
concluding that gay and lesbian parents are any less fit or capable than heterosexual parents,
or that their children are any less psychologically healthy and well adjusted.” Brief of
American Psychological Ass’n, American Psychiatric Ass’n, & New York State Psychiatric
Ass’n as Amici Curiae at 34, Hernandez v. Robles, 855 N.E.2d 1 (N.Y. 2006) (No.
103434/04), available at http://data.lambdalegal.org/pdf/645.pdf.
96. Hernandez, 855 N.E.2d at 12 (plurality opinion) (quoting Affronti v. Crosson, 746
N.E.2d 1049 (N.Y. 2001)). In dissent, Chief Judge Kaye raised an interesting threshold point
that revealed a crucial oversight of the plurality’s rationality review. Chief Judge Kaye noted
that “equal protection requires that it be the legislated distinction [or classification] that
furthers a legitimate state interest, not the discriminatory law itself.” Id. at 30 (Kaye, C.J.,
dissenting). Chief Judge Kaye proceeded to note that “no one rationally decides to have
children because gays and lesbians are excluded from marriage.” Id. at 31. Perhaps this is true,
however, the plurality’s deferential standard of review allows it to conclude that the
legislature could rationally disagree with Chief Judge Kaye, placing the plurality and dissent
at loggerheads.
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disposition of which would have substantially increased the soundness of its
opinion. In the absence of such a thorough analysis, the New York Court of
Appeals undermined plaintiffs’ liberty and equality rights. Furthermore, the
Hernandez ruling suggests that rationality review in New York requires
highly probative, conclusive policy data to overcome the judicial
presumption of rationality.