Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, December 9, 2005

Case Law Development: New York Appellate Court Rejects Constitutional Claims for Same-Sex Marriage

The New York Court of Appeals in a split decision held that New York’s restriction of marriage to heterosexual couples does not deprive same-sex couples their rights of due process or equal protection.

The majority opinion scolded the trial court decision, which not only granted summary judgment on the constitutional issue but interpreted the marriage statute to extend to same sex couples and granted an injunction prohibiting the licensing authorities from denying marriage licenses to same-sex couples. The majority noted that the trial court had, “by redefining traditional marriage, usurped the Legislature's mandated role to make policy decisions as to which type of family unit works best for society and therefore should be encouraged with benefits and other preferences. It effectively dismantled the legislative construct and treats all intimate and dependent relationships as equal. This is an impermissible intrusion by the judiciary upon the legislative domain. The question of what statutory recognition, if any, same-sex couples should receive in New York is one that must be referred to the Legislature in accordance with its historical role.”

A concurring opinion focused on the necessity for framing the issue narrowly and precisely, not as whether the statute violates same-sex couple’s right to marry, but whether the Constitution grants same-sex couples a fundamental liberty interest in marriage.

One judge dissented, finding both the equal protection and due process arguments meritorious.

Hernandez v. Robles, 2005 NY Slip Op 9436, 2005 N.Y. App. Div. LEXIS 13892 (December 8, 2005) Opinion on the web at (last visited December 9, 2005 bgf)

Marriage (impediments) | Permalink


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