A. Due Process

In deciding the validity of legislation under the Due Process Clause, courts first inquire whether the legislation restricts the exercise of a fundamental right, one that is "deeply rooted in this Nation's history and tradition" (Washington v Glucksberg, 521 US 702, 721 [1997], quoting Moore v City of East Cleveland, 431 US 494, 503 [1977] [plurality opinion]; Hope v Perales, 83 NY2d 563, 575 [1994]). In this case, whether the right in question is "fundamental" depends on how it is defined. The right to marry is unquestionably a fundamental right (Loving, 388 US at 12; Zablocki v Redhail, 434 US 374, 384 [1978]; Cooper, 49 NY2d at 79). The right to marry someone of the same sex, however, is not "deeply rooted"; it has not even been asserted until relatively recent times. The issue then becomes whether the right to marry must be defined to include a right to same-sex marriage.

Recent Supreme Court decisions show that the definition of a fundamental right for due process purposes may be either too narrow or too broad. In Lawrence v Texas (539 US 558, 566 [2003]), the Supreme Court criticized its own prior decision in Bowers v Hardwick (478 US 186, 190 [1986]) for defining the right at issue as the right of "homosexuals to engage in sodomy." The Lawrence court plainly thought the right should have been defined more broadly, as a right to privacy in intimate relationships. On the other hand, in Washington v Glucksberg (521 US at 722723), the Court criticized a lower federal court for defining the right at issue too broadly as a "right to die"; the right at issue in Glucksberg, the Court said, was really the "right to commit suicide" and to have assistance in doing so.

The difference between Lawrence and Glucksberg is that in Glucksberg the relatively narrow definition of the right at issue was based on rational line-drawing. In Lawrence, by contrast, the court found the distinction between homosexual sodomy and intimate relations generally to be essentially arbitrary. Here, there are, as we have explained, rational grounds for limiting the definition of marriage to opposite-sex couples. This case is therefore, in the relevant way, like Glucksberg and not at all like Lawrence. Plaintiffs here do not, as the petitioners in Lawrence did, seek protection against State intrusion on intimate, private activity. They seek from the courts access to a State-conferred benefit that the Legislature has rationally limited to opposite-sex couples. We conclude that, by defining marriage as it has, the New York Legislature has not restricted the exercise of a fundamental right (see also concurring op of Judge Graffeo at 5-13).

Where no fundamental right is at issue, legislation is valid under the Due Process Clause if it is rationally related to legitimate government interests (Glucksberg, 521 US at 728; Hope, 83 NY2d at 577). Again, our earlier discussion answers this question. Protecting the welfare of children is a legitimate governmental interest, and we have shown above that there is a rational relationship between that interest and the limitation of marriage to opposite-sex couples. That limitation therefore does not deprive plaintiffs of due process of law.

B. Equal Protection

Plaintiffs claim that the distinction made by the Domestic Relations Law between opposite-sex and same-sex couples deprives them of the equal protection of the laws. This claim raises, first, the issue of what level of scrutiny should be applied to the legislative classification. The plaintiffs argue for strict scrutiny, on the ground that the legislation affects their fundamental right to marry (see Alevy v Downstate Med. Ctr., 39 NY2d 326, 332 [1976]) -- a contention we rejected above. Alternatively, plaintiffs argue for so-called intermediate or heightened scrutiny on two grounds. They say that the legislation discriminates on the basis of sex, a kind of discrimination that has been held to trigger heightened scrutiny (e.g., United States v Virginia, 518 US 515, 532-533 [1996]). They also say that discrimination on the basis of sexual preference should trigger heightened scrutiny, a possibility we left open in Under 21 v City of New York (65 NY2d at 364). We reject both of these arguments, and hold that the restriction of marriage to opposite-sex couples is subject only to rational basis scrutiny.

By limiting marriage to opposite-sex couples, New York is not engaging in sex discrimination. The limitation does not put men and women in different classes, and give one class a benefit not given to the other. Women and men are treated alike -- they are permitted to marry people of the opposite sex, but not people of their own sex. This is not the kind of sham equality that the Supreme Court confronted in Loving; the statute there, prohibiting black and white people from marrying each other, was in substance anti-black legislation. Plaintiffs do not argue here that the legislation they challenge is designed to subordinate either men to women or women to men as a class.

However, the legislation does confer advantages on the basis of sexual preference. Those who prefer relationships with people of the opposite sex and those who prefer relationships with people of the same sex are not treated alike, since only opposite-sex relationships may gain the status and benefits associated with marriage. This case thus presents the question of what level of scrutiny is to be applied to legislation that classifies people on this basis. We held in Under 21 that "classifications based on sexual orientation" would not be subject to strict scrutiny, but left open the question of "whether some level of 'heightened scrutiny' would be applied" in such cases (id. at 364).

We resolve this question in this case on the basis of the Supreme Court's observation that no more than rational basis scrutiny is generally appropriate "where individuals in the group affected by a law have distinguishing characteristics relevant to interests the State has the authority to implement" (City of Cleburne v Cleburne Living Ctr., Inc., 473 US 432, 441 [1985]). Perhaps that principle would lead us to apply heightened scrutiny to sexual preference discrimination in some cases, but not where we review legislation governing marriage and family relationships. 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 in fostering relationships that will serve children best. In this area, therefore, we conclude that rational basis scrutiny is appropriate.

Where rational basis scrutiny applies, "[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest" (id. at 440). Plaintiffs argue that a classification distinguishing between opposite-sex couples and same-sex couples cannot pass rational basis scrutiny, because if the relevant State interest is the protection of children, the category of those permitted to marry -- opposite-sex couples -- is both underinclusive and overinclusive. We disagree.

Plaintiffs argue that the category is underinclusive because, as we recognized above, same-sex couples, as well as opposite-sex couples, may have children. That is indeed a reason why the Legislature might rationally choose to extend marriage or its benefits to same-sex couples; but it could also, for the reasons we have explained, rationally make another choice, based on the different characteristics of opposite-sex and same-sex relationships. Our earlier discussion demonstrates that the definition of marriage to include only opposite-sex couples is not irrationally underinclusive.

In arguing that the definition is overinclusive, plaintiffs point out that many opposite-sex couples cannot have or do not want to have children. How can it be rational, they ask, to permit these couples, but not same-sex couples, to marry? The question is not a difficult one to answer. While same-sex couples and opposite-sex couples are easily distinguished, limiting marriage to opposite-sex couples likely to have children would require grossly intrusive inquiries, and arbitrary and unreliable line-drawing. A legislature that regarded marriage primarily or solely as an institution for the benefit of children could rationally find that an attempt to exclude childless opposite-sex couples from the institution would be a very bad idea.

Rational basis scrutiny is highly indulgent towards the State's classifications (see Heller v Doe, 509 US 312, 320-321 [1993]). Indeed, it is "a paradigm of judicial restraint" (Affronti v Crosson, 95 NY2d 713, 719 [2001], cert denied, 534 US 826 [2001]). We conclude that permitting marriage by all opposite-sex couples does not create an irrationally over-narrow or overbroad classification. The distinction between opposite-sex and same-sex couples enacted by the Legislature does not violate the Equal Protection Clause.

V

We hold, in sum, that the Domestic Relations Law's limitation of marriage to opposite-sex couples is not unconstitutional. We emphasize once again that we are deciding only this constitutional question. It is not for us to say whether same-sex marriage is right or wrong. We have presented some (though not all) of the arguments against same-sex marriage because our duty to defer to the Legislature requires us to do so. We do not imply that there are no persuasive arguments on the other side -- and we know, of course, that there are very powerful emotions on both sides of the question.

The dissenters assert confidently that "future generations" will agree with their view of this case (dissenting op at 28). We do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives. We therefore express our hope that the participants in the controversy over same-sex marriage will address their arguments to the Legislature; that the Legislature will listen and decide as wisely as it can; and that those unhappy with the result -- as many undoubtedly will be -- will respect it as people in a democratic state should respect choices democratically made.

Accordingly, the orders of the Appellate Division in each case should be affirmed without costs.

Daniel Hernandez v Victor Robles, No. 86 Sylvia Samuels v The New York State Department of Health, No. 87 In the Matter of Elissa Kane v John Marsolais, No. 88 Jason Seymour v Julie Holcomb, No. 89

GRAFFEO, J. (concurring):

We are asked by the 44 same-sex couples who commenced
these four cases to declare that the denial of marriage licenses
to same-sex couples violates the Due Process and Equal Protection
Clauses of the New York Constitution. Plaintiffs and petitioners
(collectively referred to as plaintiffs) are representative of
many homosexual couples living in committed relationships in our
State, some of whom are raising children. They seek the societal
recognition and legal and financial benefits accorded by the
State to legally married couples. Respondents are the State of
New York, the State Department of Health and local officials from
the cities of New York, Albany and Ithaca who are involved either
in overseeing the New York marriage licensing process or issuing
marriage licenses.

Plaintiffs assert that the restriction of marriage to

opposite-sex couples impedes the fundamental right to marry and
amounts to gender or sexual orientation discrimination that does
not withstand any level of constitutional analysis, whether
strict scrutiny, intermediate scrutiny or rational basis review.
Because the determination of the proper level of constitutional
review is crucial to the judicial resolution of the issues in
this case, I write separately to elaborate on the standard of
review that should be applied under the precedent of this Court
and the United States Supreme Court. I conclude that rational
basis analysis is appropriate and, applying this standard, I
concur in the result reached by the plurality that an affirmance
is warranted in each of these cases.

This Court has long recognized that "[f]rom time
immemorial the State has exercised the fullest control over the
marriage relation," going so far as to observe that "[t]here are,
in effect, three parties to every marriage, the man, the woman
and the State" (Fearon v Treanor, 272 NY 268, 272 [1936], app
dismissed 301 US 667 [1937]). The historical conception of
marriage as a union between a man and a woman is reflected in the
civil institution of marriage adopted by the New York
Legislature. The cases before us present no occasion for this
Court to debate whether the State Legislature should, as a matter
of social welfare or sound public policy, extend marriage to
same-sex couples. Our role is limited to assessing whether the
current statutory scheme offends the Due Process or Equal
Protection Clauses of the New York Constitution. Because it does

not, we must affirm. Absent a constitutional violation, we may
not disturb duly enacted statutes to, in effect, substitute
another policy preference for that of the Legislature.
The Statutory Scheme:

As a preliminary matter, although plaintiffs have
abandoned the argument (raised in Supreme Court in both Kane and
Seymour) that the Domestic Relations Law already authorizes same-
sex marriage because it does not explicitly define marriage as a
union between one man and one woman, several amici continue to
suggest that this Court can avoid a constitutional analysis by
simply interpreting the statutory scheme to allow same-sex
marriage. Our role when construing a statute is to ascertain and
implement the will of the Legislature unless we are prevented
from doing so by constitutional infirmity. It would be
inappropriate for us to interpret the Domestic Relations Law in a
manner that virtually all concede would not comport with
legislative intent.

There is no basis to conclude that, when the
Legislature adopted the Domestic Relations Law more than a
century ago, it contemplated the possibility of same-sex
marriage, much less intended to authorize it. In fact, the
Domestic Relations Law contains many references to married
persons that demonstrate that the Legislature viewed marriage as
a union between one woman and one man -- as seen by references to
the parties to a marriage as the "bride" and "groom" (Domestic
Relations Law § 15[1][a]) and "wife" and "husband" (Domestic

Relations Law §§ 6, 12, 221, 248; see also CPLR 4502[b]).
Notably, high courts of other states with statutory schemes
comparable to New York's have interpreted the pertinent statutes
as not authorizing same-sex marriage (see Goodridge v Dept. of
Public Health, 440 Mass 309 [2003]; Baker v Nelson, 291 Minn 310
[1971], app dismissed 409 US 810 [1972]). And several of our
prior cases alluded to the fact that the Domestic Relations Law
precludes same-sex couples from marrying (Levin v Yeshiva Univ.,
96 NY2d 484, 494 [2001]; Braschi v Stahl Assoc. Co., 74 NY2d 201,
210 [1989]). Because the Domestic Relations Law does not
authorize marriage between persons of the same sex, this Court
must address plaintiffs' constitutional challenges to the
validity of the marriage scheme, which are at the heart of this
litigation.
Due Process:

Plaintiffs argue that the Domestic Relations Law
violates article I, § 6 of the New York Constitution, which
provides that "[n]o person shall be deprived of life, liberty or
property without due process of law." Their substantive due
process challenge is predicated on the assertion that the New
York Constitution precludes the State from defining marriage as a
union between one man and one woman because the right to privacy
derived therein grants each individual the unqualified right to
select and marry the person of his or her choice. If the Due
Process Clause encompasses this right, and if it is one of the
bundle of rights deemed "fundamental" as plaintiffs contend, the

Domestic Relations Law would be subjected to the most demanding
form of constitutional review, with the State having the burden
to prove that it is narrowly tailored to serve compelling state
interests.

But it is an inescapable fact that New York due process
cases and the relevant federal caselaw cited therein do not
support plaintiffs' argument. While many U.S. Supreme Court
decisions recognize marriage as a fundamental right protected
under the Due Process Clause, all of these cases understood the
marriage right as involving a union of one woman and one man (see

e.g. Turner v Safley, 482 US 78 [1987]; Zablocki v Redhail, 434
US 374 [1978]; Griswold v Connecticut, 381 US 479 [1965]; Skinner
v Oklahoma, 316 US 535 [1942]). Whether interpreting New York's
Due Process Clause or its federal counterpart (which is textually
identical), when this Court has addressed the fundamental right
to marry, it has relied on federal precedent and similarly used
the word "marriage" in its traditional sense. For example, in
Cooper v Morin, we grounded the right of pretrial detainees to
have contact visits with family on the "fundamental right to
marriage and family life . . . and to bear and rear children" (49
NY2d 69, 80 [1979], cert denied 446 US 984 [1980]), citing U.S.
Supreme Court cases highlighting the link between marriage and
procreation. As the Third Department aptly noted in Samuels, to
ignore the meaning ascribed to the right to marry in these cases
and substitute another meaning in its place is to redefine the
right in question and to tear the resulting new right away from

the very roots that caused the U.S. Supreme Court and this Court
to recognize marriage as a fundamental right in the first place.

Nor has this Court recognized a due process right to
privacy distinct from that articulated by the U.S. Supreme Court.
Although our Court has interpreted the New York Due Process
Clause more broadly than its federal counterpart on a few
occasions, all of those cases involved the rights of criminal
defendants, prisoners or pretrial detainees, or other confined
individuals and implicated classic liberty concerns beyond the
right to privacy. Most recently, in People v LaValle (3 NY3d 88
[2004]), the Court concluded that the anticipatory deadlock
charge in the Death Penalty Act violated New York's Due Process
Clause, even though it may have been upheld under the United
States Constitution. Likewise, in Cooper (49 NY2d 69), we held
that the New York Due Process Clause protected the right of
pretrial detainees in a county jail to have non-conjugal contact
visits with family members, even though no such right had been
deemed protected under the Federal Due Process Clause. Even
then, our analysis did not turn on recognition of broader family
privacy rights than those articulated by the Supreme Court.
Rather, the analysis focused on rejection of the rational basis
test that the Supreme Court then applied to assess jail
regulations,¹ with this Court instead adopting a test that

¹ Eight years after Cooper was decided, the U.S. SupremeCourt strengthened the federal test for assessing the efficacy ofprison regulations that implicate fundamental rights, requiringthe state to show that the restriction is reasonably related to a

"balanc[ed] . . . the harm to the individual resulting from the
condition imposed against the benefit sought by the government
through its enforcement" (id. at 79).

Most of our Due Process Clause decisions in the right
to privacy realm have cited federal authority interchangeably
with New York precedent, making no distinction between New York's
constitutional provision and the Federal Due Process Clause (see

e.g. Hope v Perales, 83 NY2d 563, 575 [1994]; Matter of Raquel
Marie X., 76 NY2d 387 [1990], cert denied 498 US 984 [1990];
Matter of Doe v Coughlin, 71 NY2d 48 [1987], cert denied 488 US
879 [1988]; Rivers v Katz, 67 NY2d 485 [1986]). Our Court has
not recognized a fundamental right to marry that departs in any
respect from the right defined by the U.S. Supreme Court in cases
like Skinner which acknowledged that marriage is "fundamental to
the very existence and survival of the [human] race" because it
is the primary institution supporting procreation and child-
rearing (316 US at 541; see also Zablocki, 434 US 374; Griswold,
381 US 479). The binary nature of marriage -- its inclusion of
one woman and one man -- reflects the biological fact that human
procreation cannot be accomplished without the genetic
contribution of both a male and a female. Marriage creates a
supportive environment for procreation to occur and the resulting
offspring to be nurtured. Although plaintiffs suggest that the
connection between procreation and marriage has become

legitimate security or penological interest and is not an"exaggerated response" to such interests (see Turner v Safley,482 US 78, 90 [1987]).

anachronistic because of scientific advances in assisted
reproduction technology, the fact remains that the vast majority
of children are conceived naturally through sexual contact
between a woman and a man.

Plaintiffs' reliance on Loving v Virginia (388 US 1
[1967]) for the proposition that the U.S. Supreme Court has
established a fundamental "right to marry the spouse of one's
choice" outside the male/female construct is misplaced. In
Loving, an interracial couple argued that Virginia's anti
miscegenation statute, which precluded "any white person in this
State to marry any save a white person, or a person with no other
admixture of blood than white and American Indian" (id. at 5 n
4), violated the Federal Due Process and Equal Protection
Clauses. The statute made intermarriage in violation of its
terms a felony carrying a potential jail sentence of one to five
years. The Lovings -- a white woman and a black man -- had
married in violation of the law and been convicted, prompting
them to challenge the validity of the Virginia law.

The Supreme Court struck the statute on both equal
protection and due process grounds, but the focus of the analysis
was on the Equal Protection Clause. Noting that "[t]he clear and
central purpose of the Fourteenth Amendment was to eliminate all
official state sources of invidious racial discrimination in the
States," the Court applied strict scrutiny review to the racial
classification, finding "no legitimate overriding purpose
independent of invidious racial discrimination which justifies

this classification" (id. at 10-11). It made clear "that
restricting the freedom to marry solely because of racial
classifications violates the central meaning of the Equal
Protection Clause" (id. at 12). There is no question that the
Court viewed this anti-miscegenation statute as an affront to the
very purpose for the adoption of the Fourteenth Amendment -- to
combat invidious racial discrimination.

In its brief due process analysis, the Supreme Court
reiterated that marriage is a right "fundamental to our very
existence and survival" (id., citing Skinner, 316 US 535, 541) -
a clear reference to the link between marriage and procreation.
It reasoned: "To deny this fundamental freedom on so
unsupportable a basis as the racial classifications embodied in
these statutes . . . is surely to deprive all the State's
citizens of liberty without due process of law" (id.). Although
the Court characterized the right to marry as a "choice," it did
not articulate the broad "right to marry the spouse of one's
choice" suggested by plaintiffs here. Rather, the Court observed
that "[t]he Fourteenth Amendment requires that the freedom of
choice to marry not be restricted by invidious racial
discriminations" (id. [emphasis added]).² Needless to say, a

2

Plaintiffs cite Crosby v State of N.Y., Worker'sCompensation Board (57 NY2d 305, 312 [1982]) and People v Shepard(50 NY2d 640, 644 [1980]) for the proposition that the right tomarry encompasses the unqualified right to marry the spouse ofone's choice. But, in resolving controversies unrelated to theright to marry, those cases did not analyze the fundamentalmarriage right but merely cited Loving when including marriage ina list of rights that have received constitutional protection.

statutory scheme that burdens a fundamental right by making

conduct criminal based on the race of the individual who engages

in it is inimical to the values embodied in the State and Federal

Due Process Clauses. Far from recognizing a right to marry

extending beyond the one woman and one man union,³ it is evident

from the Loving decision that the Supreme Court viewed marriage

as fundamental precisely because of its relationship to human

procreation.⁴

³ Of course, the rights and responsibilities attendantmarriage have changed over time and there have always beendifferences between the states concerning the legal incidents ofmarriage, including differing age restrictions, consanguinityprovisions and, unfortunately, some states -- although not NewYork -- once had anti-miscegenation laws. With the exception ofthe recent extension of marriage to same-sex couples by theSupreme Judicial Court of Massachusetts (see Opinions of theJustices to the Senate, 440 Mass 1201 [2004], clarifyingGoodridge, 440 Mass 309), the one element common to theinstitution across the nation and despite the passage of time hasbeen its definition as a union between one man and one woman. This is how marriage is defined in the Federal Defense ofMarriage Act (Pub L 104-199, 110 Stat 2419; see 1 USC § 7), whichprovides that no state "shall be required to give effect to anypublic act, record, or judicial proceeding of any other State . .. respecting a relationship between persons of the same sex thatis treated as a marriage under the laws of such other State" (28USC § 1738C).

⁴ Four years after Loving, the Minnesota Supreme Court upheldMinnesota's marriage laws in the face of a challenge brought bysame-sex couples (Baker v Nelson, 291 Minn 310 [1971], appdismissed 409 US 810 [1972]). The Court rejected the argumentthat the Federal Due Process Clause encompassed a right to marrythat extended to same-sex couples, noting that in Loving and its other privacy cases the U.S. Supreme Court had recognized that"[t]he institution of marriage as a union of man and woman,uniquely involving the procreation and rearing of children withina family, is as old as the book of Genesis" (id. at 312). The

U.S. Supreme Court summarily dismissed the appeal "for want of asubstantial federal question" (409 US 810 [1972]). Under Supreme

Nor does the Supreme Court's recent Federal due process

analysis in Lawrence v Texas (539 US 558 [2003]) support defining

the fundamental marriage right in the manner urged by plaintiffs.

In Lawrence, the Court overruled its prior decision in Bowers v

Hardwick (478 US 186 [1986]) and struck as unconstitutional a

Texas statute that criminalized consensual sodomy between adult

individuals of the same sex. The holding in Lawrence is

consistent with our Court's decision in People v Onofre (51 NY2d

476 [1980], cert denied 451 US 987 [1981]), which invalidated

under a federal due process analysis a New York penal law

provision that criminalized consensual sodomy between non-married

persons.

In Lawrence the Supreme Court did not create any new

fundamental rights, nor did it employ a strict scrutiny analysis.

It acknowledged that laws that criminalize sexual conduct between

homosexuals

Court decisional law, as far as lower courts are concerned,"summary dismissals are . . . to be taken as rulings on themerits . . . in the sense that they rejected the specificchallenges presented in the statement of jurisdiction and leftundisturbed the judgment appealed from" (Washington v Confed.Bands & Tribes of Yakim Indian Nation, 439 US 463, 477 n 20[internal quotation marks and citation omitted] [1979]) and"lower courts are bound by summary decisions . . . until suchtime as the [Supreme] Court informs them that they are not"(Hicks v Miranda, 422 US 332, 344-345 [1975] [internal quotationmarks and citations omitted]). Thus, with respect to the FederalDue Process Clause, we must presume that Loving did not expandthe fundamental right to marry in the manner suggested byplaintiffs in the cases before us. This observation does not,however, preclude this Court from interpreting the New York StateDue Process Clause more expansively.

"have more far-reaching consequences,
touching upon the most private human conduct,
sexual behavior, and in the most private of
places, the home. The statutes do seek to
control a personal relationship that, whether
or not entitled to formal recognition in the
law, is within the liberty of persons to
choose without being punished as criminals"
(539 US at 567).

Criticizing the historical analysis in Bowers, it noted that,
even though sodomy as well as other nonprocreative sexual
activity had been proscribed, criminal statutes "directed at
homosexual conduct as a distinct matter" (id. at 568) were of
recent vintage, having developed in the last third of the 20th
century, and therefore did not possess "ancient roots" (id. at
570).

Consistent with our analysis in Onofre, the Lawrence
Court held "that adults may choose to enter upon this
relationship in the confines of their home and their own private
lives and still retain their dignity as free persons" (id. at
567) because "liberty gives substantial protection to adult
persons in deciding how to conduct their private lives in matters
pertaining to sex" (id. at 572). It reasoned that "moral
disapproval" -- the only justification Texas proffered for its
law -- is never an adequate basis for a criminal statute, a
conclusion similar to this Court's observation in Onofre that "it
is not the function of the Penal Law in our governmental policy
to provide either a medium for the articulation or the apparatus
for the intended enforcement of moral or theological values" (51
NY2d at 488 n 3). Thus, in striking the sodomy law, the Supreme

Court found that "[t]he Texas statute furthers no legitimate
state interest which can justify its intrusion into the personal
and private life of the individual" (Lawrence, 539 US at 578).

The 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 marriage statutes under review. The Domestic
Relations Law is not a penal provision and New York has not
attempted to regulate plaintiffs' private sexual conduct or
disturb the sanctity of their homes. And, in contrast to the
Texas statute, New York's marriage laws are part of a
longstanding tradition with roots dating back long before the
adoption of our State Constitution.

New York's Due Process Clause simply does not encompass
a fundamental right to marry the spouse of one's choice outside
the one woman/one man construct. Strict scrutiny review of the
Domestic Relations Law is therefore not warranted and, insofar as
due process analysis is concerned, the statutory scheme must be
upheld unless plaintiffs prove that it is not rationally related
to any legitimate state interest.
Equal Protection:

Plaintiffs contend that, even if strict scrutiny
analysis is not appropriate under the Due Process Clause, a
heightened standard of review is nonetheless mandated under the
Equal Protection Clause because New York's marriage laws create
gender and sexual orientation classifications that require a more

rigorous level of analysis than rational basis review.

The Equal Protection Clause, added to the New York
Constitution in 1938, provides:

"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 or her

civil rights by any other person or by any

firm, corporation, or institution, or by the

state or any agency of subdivision of the

state" (NY Const Art I, § 11).
Soon after the adoption of this provision, this Court recognized
that it was modeled after its federal counterpart and "embodies"
the federal equal protection command (Dorsey v Stuyvesant Town
Corp., 299 NY 512, 530 [1949], cert denied 339 US 981 [1950]; see
also, Under 21, Catholic Home Bur. for Dependent Children v City
of New York, 65 NY2d 344, 360 n 6 [1985] ["the State
constitutional equal protection clause . . . is no broader in
coverage than the Federal provision"]). Accordingly, this Court
has consistently cited federal cases and applied federal analysis
to resolve equal protection claims brought under the Federal and
State Constitutions (see e.g. Matter of Aliessa v Novello, 96
NY2d 418 [2001]; People v Liberta, 64 NY2d 152 [1984], cert
denied 471 US 1020 [1985]).

The Equal Protection Clause "is essentially a direction
that all persons similarly situated should be treated alike"
(City of Cleburne v Cleburne Living Ctr., 473 US 432, 439
[1985]). Both the U.S. Supreme Court and this Court have applied
three levels of review to legislative classifications. "[W]hen a

statute classifies by race, alienage, or national origin," (id.
at 440) or when it burdens a fundamental right protected under
the Due Process Clause, it is subjected to strict scrutiny
meaning that it will be sustained only if it is narrowly tailored
to serve a compelling state interest (see Golden v Clark, 76 NY2d
618, 623 [1990]). Classifications based on gender or
illegitimacy are reviewed under an intermediate level of scrutiny
-- meaning they will be sustained if "substantially related to
the achievement of an important governmental objective" (Liberta,
64 NY2d at 168). Neither the Supreme Court nor this Court has
recognized any other classifications as triggering heightened
scrutiny and, therefore, all other statutory distinctions have
been sustained if rationally related to a legitimate government
interest (see e.g. Golden, 76 NY2d 618).

Plaintiffs argue that the Domestic Relations Law
creates a classification based on gender that requires
intermediate scrutiny because a woman cannot marry another woman
due to her gender and a man cannot marry another man due to his
gender. Respondents counter that the marriage laws are neutral
insofar as gender is concerned because they treat all males and
females equally -- neither gender can marry a person of the same
sex and both can marry persons of the opposite sex.

Respondents interpretation more closely comports with
the analytical framework for gender discrimination applied by
this Court and the Supreme Court. The precedent establishes that
gender discrimination occurs when men and women are not treated

equally and one gender is benefitted or burdened as opposed to
the other. For example, in Liberta (64 NY2d 152), we held that
the Penal Law's restriction of the crime of forcible rape to male
offenders constituted gender discrimination and the restriction
was struck on the basis that it failed to meet the intermediate
scrutiny standard. Men and women were not treated equally
because only men could be convicted of forcible rape; women who
engaged in precisely the same conduct could not be charged or
convicted of the same offense. Similarly, in Mississippi Univ.
for Women v Hogan (458 US 718 [1982]), the Supreme Court found
that a publically-funded state university that refused to allow
men admission to its nursing program had engaged in gender
discrimination. The university improperly privileged female
students by allowing them a benefit not available to similarly-
situated male applicants. Likewise, in J.E.B. v Alabama (511 US
127 [1994]), a prosecutor was determined to have engaged in
gender discrimination when he exercised 9 of his 10 peremptory
challenges to strike males from the venire panel resulting in an
all-female jury. There, the prosecutor did not apply jury
selection criteria equally among males and females -- he used
almost all of his challenges to exclude men from the jury.

Plaintiffs cite Loving for the proposition that a
statute can discriminate even if it treats both classes
identically. This misconstrues the Loving analysis because the
anti-miscegenation statute did not treat blacks and white
identically -- it restricted who whites could marry (but did not

restrict intermarriage between non-whites) for the purpose of
promoting white supremacy. Virginia's anti-miscegenation statute
was the quintessential example of invidious racial discrimination
as it was intended to advantage one race and disadvantage all
others, which is why the Supreme Court applied strict scrutiny
and struck it down as violating the core interest of the Equal
Protection Clause.

In contrast, 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 -- both genders are treated precisely the same way. As
such, there is no gender classification triggering intermediate
scrutiny.

Nor does the statutory scheme create a classification
based on sexual orientation. In this respect, the Domestic
Relations Law is facially neutral: individuals who seek marriage
licenses are not queried concerning their sexual orientation and
are not precluded from marrying if they are not heterosexual.
Regardless of sexual orientation, any person can marry a person
of the opposite sex. Certainly, the marriage laws create a
classification that distinguishes between opposite-sex and same-
sex couples and this has a disparate impact on gays and lesbians.
However, a claim that a facially-neutral statute enacted without
an invidious discriminatory intent has a disparate impact on a
class (even a suspect class, such as one defined by race) is

insufficient to establish an equal protection violation⁵ (see
Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 321
[1995]; People v New York City Tr. Auth., 59 NY2d 343, 350
[1983]; Washington v Davis, 426 US 229, 240 [1976]). Plaintiffs
concede that the Domestic Relations Law was not enacted with an
invidiously discriminatory intent -- the Legislature did not
craft the marriage laws for the purpose of disadvantaging gays
and lesbians (cf. Romer v Evans, 517 US 620 [1996]). Hence,
there is no basis to address plaintiffs' argument that
classifications based on sexual orientation should be subjected
to intermediate scrutiny.
Rational Basis Review:

Thus, under both the Due Process and Equal Protection
Clauses, these cases turn on whether the Legislature's decision
to confine the institution of marriage to couples composed of one
woman and one man is rationally related to any legitimate state
interest. In Affronti v Crosson (95 NY2d 713, 719 [2001], cert
denied 534 US 826 [2001] [internal quotation marks, citations and
brackets omitted]), we explained that

"[t]he rational basis standard of review is a
paradigm of judicial restraint. On rational
basis review, a statute will be upheld unless
the disparate treatment is so unrelated to
the achievement of any combination of
legitimate purposes that it is irrational.
Since the challenged statute is presumed to

⁵ Such disparate impact claims are usually brought undercivil rights statutes that authorize them, such as the New YorkCity Human Rights Law (see e.g. Levin v Yeshiva Univ., 96 NY2d484 [2001]).

be valid, the burden is on the one attacking
the legislative arrangement to negative every
conceivable basis which might support it
whether or not the basis has a foundation in
the record. Thus, those challenging the
legislative judgment must convince the court
that the legislative facts on which the
classification is apparently based could not
reasonably be conceived to be true by the
governmental decisionmaker."

Especially in the realm of social or economic legislation, "the
Equal Protection Clause allows the States wide latitude . . . and
the Constitution presumes that even improvident decisions will
eventually be rectified by the democratic processes" (City of
Cleburne, 473 US at 440; see generally Lovelace v Gross, 80 NY2d
419, 427 [1992]).

In these cases, respondents articulate a number of
interests that they claim are legitimate and are advanced by the
current definition of marriage. Given the extremely deferential
standard of review, plaintiffs cannot prevail unless they
establish that no conceivable legitimate interest is served by
the statutory scheme. This means that if this Court finds a
rational connection between the classification and any single
governmental concern, the marriage laws survive review under both
the Due Process and Equal Protection Clauses.

As set forth in the plurality opinion, plaintiffs have
failed to negate respondents' explanation that the current
definition of marriage is rationally related to the state's
legitimate interest in channeling opposite-sex relationships into
marriage because of the natural propensity of sexual contact
between opposite-sex couples to result in pregnancy and

childbirth. Of course, marriage can and does serve individual

interests that extend well beyond creating an environment

conducive to procreation and child-rearing, such as companionship

and emotional fulfilment. But here we are concerned with the

State's interest in promoting the institution of marriage.

As Justice Robert Cordy pointed out in his dissent in

Goodridge v Dept. of Public Health (440 Mass at 381-382 [Cordy,