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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