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BRIEF OF AMICI CURIAE Publications243_0 Part 1
New York County Clerk’s Index No. 103434/04
Albany County Clerk’s Index No. 1967/04
April 12,2006
Court of Appeals of the State of New York
Norman L. Reimer, President
14 Vesey St.
New York, NY
10007(212) 267-6646
National Black Justice Coalition
H. Alexander Robinson
Executive Director/CEO
Washington National Office
1725 I Street, NW, Suite 300
Washington, DC 20006
(202) 349-3756
The New York County Lawyers’ Association is a not-for-profit corporation with members organized under New York law. It has no parents, subsidiaries, or affiliates except that its officers comprise the membership of the New York County Lawyers’ Association Foundation, which has no parents, subsidiaries, or affiliates.
The National Black Justice Coalition is a not-for-profit corporation with members organized under New York law. It has no parents, subsidiaries, or affiliates.
Dated: New York, New York
April 12, 2006
Amici Curiae, the New York County Lawyers’ Association (“NYCLA”) and the National Black Justice Coalition (“NBJC”) submit this brief in support of Appellants’ appeals from (i) the February 16, 2006 Opinion and Order of the Appellate Division, Third Department in Samuels
New York State
Department of Health (___ AD3d ___, 2006 NY Slip Op 01213 [3d Dept 2006]), affirming the motion court decision there, and (ii) the December 8, 2005 Decision and Order of the Appellate Division, First Department, reversing the motion court’s decision in Hernandez
Robles (7 Misc 3d 459 [Sup Ct, NY County], rev’d 26 AD3d 98 [1st Dept 2005]). The rulings by the Third and First Departments held that New York’s Constitution does not protect same-sex partners from the denial of the rights, privileges and benefits of a civil marriage that New York statutes grant to couples of opposite sexes. For the reasons set forth herein and in the Record, the decisions of the First and Third Departments of the Appellate Division below should be reversed.
STATEMENT OF INTEREST OF
AMICI
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The New York County Lawyers’ Association
NYCLA is a New York not-for-profit corporation with approximately 8,500 attorneys practicing primarily in New York County founded and operating specifically for charitable and educational purposes. NYCLA’s certificate of incorporation specifically provides that it is to seek reform in the law and do what is in the public interest and for the public good.
When NYCLA was founded, it was the first major bar association in the United States of America that admitted members without regard to race, ethnicity, religion or gender. Since its formation in 1908, NYCLA has played a leading role in the fight against discrimination under local, state and federal law. Althougharious factors inspired NYCLA’s creation, none was as strong as its rejection of the “selective membership” that other bar associations employed to deny large groups of lawyers the opportunity to participate in bar association activities. Throughout its history, NYCLA’s bedrock principle has been the inclusion of all members of the bar who wish to join in an association of lawyers who seek to advance the public’s interest and the profession’s integrity.
Consistent with its opposition to discrimination in the legal profession, in 1943 NYCLA refused to renew its affiliation with the American Bar Association because it would not admit African-American lawyers. In addition, NYCLA’s Women’s Rights Committee challenged and helped change provisions of the Internal Revenue Code that had a discriminatory impact on women and married couples. Consistently fighting to ensure equal access to justice for all, in 1989, when indigent defendants could not secure representation, NYCLA attorneys stepped up andolunteered pro bono. In 1997, NYCLA’s proposal to increase fees for Article 18(b) attorneys to improve the quality of defense afforded to indigent defendants won the endorsement of bar associations across the state. A lawsuit filed in 2000 helped obtain increased compensation for these attorneys. And in December 2003, the NYCLA Board of Directors adopted a resolution endorsing full equal civil marriage rights for same-sex couples.
NYCLA’s endorsement of equal civil marriage rights for same-sex couples grew out of its concern that an entire class of New York couples and their families lack the protections afforded to families led by heterosexual couples. To ensure that all rights, benefits and responsibilities attendant to civil marriage are available to same-sex couples in New York, NYCLA submits that it is both necessary and appropriate to extend civil marriage rights to same-sex couples without diluting these rights through piecemeal legislation or the ambiguous “civil union” or “domestic partnership.” In the absence of state-recognized marriage rights, same-sex couples are relegated to second-class citizenship when they are denied the equal rights that are available to heterosexual couples and their families.
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The National Black Justice Coalition
NBJC is a New York not-for-profit corporation. It is a civil rights organization of black lesbian, gay, bisexual and transgender people and allies dedicated to fostering equality. NBJC has more than 3,000 members nationwide and advocates for social justice by educating and mobilizing opinion leaders, including elected officials, clergy and media, with a focus on black communities. Black communities have historically suffered from discrimination and have turned to the courts for redress. With this appeal, we turn to the courts again. This appeal presents issues with significant implications for the civil rights of black lesbians and gay men in this State – whether they will receive equal treatment under the law and the legal recognition and protections of marriage for their relationships and families. NBJC envisions a world where all people are fully empowered to participate safely, openly and honestly in family, faith and community, regardless of race, gender-identity or sexual orientation.
PRELIMINARY STATEMENT
This Nation has a social history of discrimination that was once commonplace, acceptable and, indeed, sanctioned by law, but which is resoundingly rejected in law today. Unfortunately, other types of discrimination continue both socially and under sanction of law, such as that in issue now before this Court: the prohibition against civil marriage between same-sex couples. The current prohibition against marriage between same-sex individuals is rationalized on the notion of its longstanding history. The opponents of equal civil marriage rights for same-sex couples buttress that rationale with the additional argument that the sex-based ban is really not discrimination because it discriminates “equally” – in the sense that (a) men can only marry women and women can only marry men, (b) any discrimination is equal, (c) therefore, there is no discrimination. Although that sound byte possesses rhetorical symmetry, it lacks substance as an analytical matter of constitutional jurisprudence.
For centuries, these same rationalizations were used to justify the prohibition against interracial marriage—a prohibition that no one today defends as even arguably constitutional. Amici submit that current analysis of the restrictions on the right to marry for same-sex couples is richly informed and illuminated by considering our Nation’s history of discriminating against racially different couples. At the core of both prohibitions lies theiolation of an individual’s right to marry. The history of racial discrimination in marriage laws was discussed in the February 4, 2005, motion court decision below in Hernandez (7 Misc 3d 459), which rejected New York’s prohibition on marriage between same-sex partners as unconstitutional under New York’s Constitution:
“An instructive lesson can be learned from the history of the anti-miscegenation laws and the court decisions which struck them down as unconstitutional. The challenges to laws banning whites and non-whites from marriage demonstrate that the fundamental right to marry the person of one’s choice may not be denied based on longstanding and deeply held traditional beliefs about appropriate marital partners…. [T]he United States Amici recognize that the long history of racial discrimination in this country extended well beyond restrictions on marriage rights. Supreme Court was not deterred by the deep historical roots of anti-miscegenation laws [ (Loving
Virginia, 388 US 1,7, 10 [1967])]; their continued prevalence [ (id. at 6 n 5)]; nor any continued popular opposition to interracial marriage. [ (Id. at 7)]. Instead, the Court held that ‘[u]nder our Constitution, the freedom to marry or not marry, a person of another race resides with the individual and cannot be infringed by the State,’ declaring that ‘marriage is one of the “basic civil rights of man,” fundamental to ourery existence and survival.’ [(Id. at 12 (quoting Skinner Oklahoma ex rel. Williamson, 316 US 535, 541 [1942])].”
(Id. at 461-462).
This brief provides an analysis of judicial opinions that ultimately recognized the prohibition as an unconstitutionaliolation of an individual’s fundamental right to marry and a historical background of the prohibition on interracial marriage in the United States.iewed against this background, the prohibition on civil marriage between same-sex couples must be recognized as unconstitutional. Amici request this Court to reverse the decisions of the First and Third Departments of the Appellate Division.
ARGUMENT
RESPONDENTS’ ARGUMENTS ATTEMPTING TO CIRCUMSCRIBE THE FUNDAMENTAL RIGHT TO MARRY DO NOT WITHSTAND SCRUTINY_________________ ____________________
The decisions of the First and Third Departments of the Appellate Division below should be reversed. In determining whether New York’s prohibition on marriages between individuals of the same sexiolates the New York State Constitution, this Court should consider the historical background of laws that have unconstitutionally interfered with the right to marry. Respondents argue that the government has the power to deny same-sex couples the right to enter into civil marriages by defining the right too narrowly and by suggesting that the recognition of that right must somehow become more “popular” before it is accepted. Yet, the Respondents have never pointed to any provision of this State’s Constitution by which the citizens of New York ever expressly surrendered the right and freedom to be chosen as a marriage partner by a person of any religion, race, or sex.
Taking a cue from the “reasoning” employed by the opponents of interracial marriage before Loving, Respondents also suggest that denying same- sex couples the right to enter into civil marriage is not discriminatory because it is “equally” applied. This Court should reject those narrow and misleading arguments.
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Contemporary “Popular Opinion” Does Not Define The Fundamental Right To Be Free From Unwarranted Governmental Intrusion
All parties to this case agree that the right to marry is a constitutionally protected fundamental right. The reason that individuals have a fundamental right to be free from unwarranted governmental intrusion in decisions involving marriage is because the decision to marry is fundamentally personal and private in nature. ( See Griswold
Connecticut, 381 US 479, 486 [1965] (“We deal with a right of privacy older than the Bill of Rights”)). Marriage is among those matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, [which] are central to the liberty protected by the Fourteenth Amendment.” ( Planned Parenthood
Casey of Southeastern Pa., 505 US 833, 851 [1992]).
Although the parties agree that there is a fundamental right to marry, they disagree about the scope of this right. Appellants and Amiciiew the right as the right of one individual to enter into a marriage with another individual of his or her choice. Respondents argue that the right at issue is limited to the right to enter into a marriage with a member of the opposite sex. Respondents claim that Appellants are seeking a new right to “same-sex marriage” that has never before existed. This narrow interpretation of the right to marry finds no support in constitutional jurisprudence and is inconsistent with decisions striking down anti-miscegenation statutes.
Respondents advance three overlapping arguments in this area to restrict Appellants’ rights in these cases. First, they claim that courts should always define fundamental rights as narrowly as possible. Second, they claim that a right is fundamental only, if (and to the extent that) it has been exercised and protected throughout our nation’s history. Third, Respondents essentially claim that a right is fundamental if and only if its exercise is generally accepted in our society. For almost a century, these three arguments have been hurled at those who seek to free our society from “traditional” or “historical” discrimination that has become so ingrained in the minds of some people that it finds expression in our legal system. Amici respond to each point in turn.
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Fundamental Rights Should Not Be Defined Narrowly to Incorporate the Challenged Governmental Restriction
Respondents argue that fundamental rights. must be defined narrowly. They frame the issue in this case as whether there is a fundamental right to same- sex marriage. The “narrow the right”iew contradicts traditional constitutional law analysis and, particularly, the analysis employed in cases involving anti-miscegenation statutes.
Challenges to claimediolations of fundamental rights require a two- step analysis: (l) Does the statute at issue restrict or burden the exercise of a fundamental right? If so, (2) is the restriction or burden narrowly tailored to serve a compelling government interest? (See e.g. Hernandez, 7 Misc 3d at 479-480; Zablocki Redhail, 434 US 374, 388 [1978]). Respondents seem to miss the point that it is the restriction rather than the right that must be narrowed.
The New York Constitution does not contain any of the constraints urged by the Respondents to “narrow” the liberty of New York citizens. Article I, § 11 of the New York State Constitution provides, in pertinent part, that “[n]o person shall be denied the equal protection of the laws of this state or any subdivision thereof.” (NY Const, art I, § 11). And Article I, § 6 of the New York State Constitution provides, in pertinent part, that “[n]o person shall be deprived of life, liberty or property without due process of law.” (NY Const, art I, § 6).
The right to liberty necessarily includes the right to be free from unjustified government interference in one’s privacy. ( See People
Onofre, 51 NY2d 476, 486-489 [1980], cert denied 451 US 987 [1981]). Thus, the analysis of Appellants’ due process claim begins with the question whether the right to marriage is a fundamental right entitled to due process protection, both as a general liberty right and as a specific privacy right. Amici submit that it is both. Here, Respondents try to avoid this analytical framework by incorporating the challenged form of bigotry itself into the definition of the “right.” This technique of “creative definition” was also employed by the opponents of interracial marriage until its fallacy was exposed nearly forty years ago.
Furthermore, Respondents’ argument should wither here, given that the whole purpose of the New York State Constitution is to secure people’s freedom. Indeed, the Preamble of the New York State Constitution proclaims:
“[w]e, the People of the State of New York, grateful to Almighty God for our [f]reedom, in order to secure its blessings, do establish this Constitution.”
(NY Const, Preamble). The State is not the source of our freedom; rather, the State is nothing more than a bulwark to secure that freedom. And, to quote the 1992 Supreme Court of Kentucky decision in Kentucky
Wasson (842 SW2d 487 [Ky 1992]), which struck down Kentucky’s anti-sodomy laws:
“[g]iven the nature, the purpose, the promise of our Constitution, and its institution of a government charged as the conservator of individual freedom, I suggest that the appropriate question is not ‘[w] hence comes the right to privacy?’ but rather, ‘[w]hence comes the right to deny it?”’
(Id. at 503 [Combs, J., concurring]).
This Court does not flinch from its responsibility to uphold our state’s Constitutional protections when individual liberties and fundamental rights are at issue. (See People
Harris, 77 NY2d 434, 437-438 [1991] (“Our federalist system of government necessarily provides a double source of protection and State courts, when asked to do so, are bound to apply their own Constitutions notwithstanding the holdings of the United States Supreme Court…. Sufficient reasons appearing, a State court may adopt a different construction of a similar State provision unconstrained by a contrary Supreme Court interpretation of the Federal counterpart”) [citation omitted]).
A review of cases in which the U.S. Supreme Court has found government intrusion on fundamental rights iniolation of the Fourteenth Amendment’s Due Process Clause reveals that, in determining the existence of a fundamental right, the Court considers the nature of the right at issue rather than someery specific governmental restriction being challenged. For example, in Meyer
Nebraska (262 US 390, 401-403 [1923]) and in Pierce
Society of Sisters of Holy Names of Jesus & Mary (268 US 510, 534-535 [1925]), the Court considered whether parents had a right to be free from unwarranted governmental intrusion in decisions about how to educate their children. The Court did not frame the issue as whether there was a fundamental right for children to learn the German language or whether there was a fundamental right to attend a private school. In Skinner (316 US at 541), the Court considered whether there was a fundamental right to be free from unwarranted governmental intrusion in decisions about whether to have offspring, not whether a convicted criminal had the fundamental right to bear children. In Zablocki (434 US at 384-385, 388) and Turner
Safley (482 US 78, 95-96 [1987]), the Court considered whether there was a fundamental right to be free from unwarranted governmental intrusion in decisions to marry, not whether deadbeat dads or prison inmates in particular had a specific right to marry. Most recently, in Lawrence
Texas (539 US 558, 578 [2003]), the Court considered whether there is a fundamental right to be free from unwarranted governmental intrusion into matters of private, consensual sexual conduct, not whether there is a specific right to engage in homosexual sodomy. Theery notion of “fundamental” rights reserved to all people naturally flows from the nature of a written constitution that defines the limited power of the State. That notion reflects theiew that people are beings possessed of personal dignity, human worth and individual autonomy. States exist to preserve that dignity, worth and autonomy. This state’s and this nation’s constitutional histories are clear in this regard — states have only the powers conferred upon them by the people, not the other way around. Only totalitarian regimesiew themselves as “dispensing” rights to people at the whim of a transitory majority or the favor of a particular faction.
The U.S. Supreme Court’s rejection of anti-miscegenation statutes exposes the fallacy of Respondents’ argument in this case. In Loving (388 US at 12), the Supreme Court did not ask whether there was a specific right to enter into an interracial marriage. Instead, the Court asked whether there was a fundamental right to be free from unwarranted governmental interference in decisions regarding marriage. After answering that question affirmatively, the Court considered whether the prohibition on interracial marriage was narrowly tailored to serve a compelling state interest and, of course, concluded it was not.
Significantly, the Supreme Court has since emphasized the broad basis of its decision in Loving. The Court has explained that its decision in Loving “could have rested solely on the ground that the statutes discriminated on the basis of race iniolation 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.” ( Zablocki, 434 US at 383 [citation omitted]). The California Supreme Court took a similarly broad perspective when it struck down an anti-miscegenation statute almost twenty years before Loving. Justice Traynor wrote:
“[Marriage] is a fundamental right of free men. There can be no prohibition of marriage except for an important social objective and by reasonable means. . . . Since the right to marry is the right to join in marriage with the person of one’s choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry.”
(Perez Lippold, 32 Cal 2d 711, 715, 198 P2d 17, 19 [1948]).
And there is substantial New York Court of Appeals precedent speaking to the breadth of the fundamental right to marry under New York Law. As the motion court explained in the decision below:
“New York courts have analyzed the liberty interest at issue in terms that recognize and embrace the broader principles at stake…. Indeed, as the Court of Appeals has consistently made clear, ‘[A]mong the decisions protected by the right to privacy, are those relating to marriage.’ ([Doe Coughlin, 71 NY2d 48, 52 [1987], cert, denied 488 US 879 [1988]]; see also [ People
Shepard, 50 NY2d 640, 644 [1980]] (noting courts’ willingness ‘to strike down State legislation which invaded the “zone of privacy” surrounding the marriage relationship’) [citation omitted]; [Levin
Yeshiva Univ.,
96 NY2d 484, 500 [2001, Smith, J., concurring]] (‘[M]arriage is a fundamental constitutional right’); [Mary of Oakknoll Coughlin, 101 AD2d 931, 932 [3d Dept 1984]] (‘[T]he right to marry is one of fundamental dimension’)).”
(7 Misc 3d at 477-478).
In its March 13, 2006 amicus brief to this Court (at 21 n 26), the New York State Catholic Conference cites Justice Scalia’s dissent in Casey (505 US at 980 n 1), asserting that the Equal Protection clause of the Federal Constitution “explicitly establishe[d] racial equality as a constitutionalalue.” The Catholic Conference does so to support its effort to take the anti-miscegenation laws entirely out of the context of a “fundamental right to marry” analysis. Furthermore, as set forth in Points II.A. & II.B. below, after its ratification and until Loving, many courts rejected claims that the Fourteenth Amendment prohibited interracial marriage. Ultimately, just as Perez and Loving prohibited discriminatoryiews about proper marriage partners from interfering with individuals’ fundamental right to marry their loved one, so too must discriminatoryiews about the sex of marital partners be prohibited from interfering with what is being sought here – affirmation of the fundamental right of free individuals to marry.
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Respondents’ Focus on the Historical Recognition of the Right to Marry Is Overly Narrow
Respondents argue that the right to marry must be narrowlyiewed to include only opposite-sex marriages because fundamental rights are deeply grounded in our nation’s history. The First Department’s majority opinion in Hernandez appears to make that assertion by pointing to decisional law in another jurisdiction (not considering New York’s Constitution) reciting that ‘“same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state nor are they implicit in the concept of ordered liberty.”’ (26 AD3d at 107 [citation omitted]). Of course, interracial marriage, too, was not “deeply rooted in the legal and social history of our Nation.” Indeed, only its prohibition was deeply rooted in that history. In- substance, the argument is contrary to constitutional jurisprudence and decisions striking down anti-miscegenation statutes because “deeply rooted” bigotry can never justify contemporary discrimination.
While the determination of a fundamental right looks to history and the ordered concept of liberty, Respondents can cite no New York case that requires tying the definition of a fundamental right to the state’s “traditional” definition thereof. Indeed, it is hard to imagine that any form of discrimination can be styled as permissible merely because it has been “traditionally pervasive.” The United States Supreme Court has never held that it will solely rely on history when evaluating a constraint on fundamental rights. In Casey, the Supreme Court stated:
“[S]uch aiew would be inconsistent with our law. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter. We haveindicated this principle before. Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause. . . .”
(505 US at 847-848).
Thus, the Supreme Court’s analysis of fundamental rights is grounded in our Nation’s historical tradition of protecting uniquely personal and intimate decisions from unjustified government intrusion, not in the history of some specific act or decision. “If the question whether a particular act or choice is protected as a fundamental right were answered only with reference to the past, liberty would be a prisoner of history.” (Note, Litigating the Defense of Marriage Act: The Next Battleground for Same-Sex Marriage, 117 Harv L Rev 2684, 2689 [2004]).
“Clearly, the right to choose one’s life partner is quintessentially the kind of decision which our culture recognizes as personal and important. . . . The relevant question is not whether same-sex marriage is so rooted in our traditions that it is a fundamental right, but whether the freedom to choose one’s own life partner is so rooted in our traditions.”
( Brause
Bureau ofital Statistics, No. 3AN-95-6562 CI, 1998 WL 88743, *4 [Alaska Super Ct Feb. 27, 1998], aff’d sub nom Brause
Alaska Dept. of Health & Soc. Servs., 21 P3d 357 [Alaska 2001]).
The history of laws prohibiting interracial marriages exposes the fallacy of the Respondents’ argument: It was once argued that there is no fundamental right to marry someone of a different race because such marriages had a long history of being prohibited. ( See e.g. Lonas
Tennessee, 50 Tenn 287, 29395 [1871]; Britell
Jorgensen (In re Takahashi’s Estate), 113 Mont 490, 493-494, 129 P2d 217, 219 [1942]; Perez, 32 Cal 2d at 747, 198 P2d at 38 [Shenk, J., dissenting] (arguing that the prohibition of interracial marriage had a long history and twenty-nine states continued to have such laws)). Now, seeming to ignore thisery history and basis for Loving, the Third Department wrongly declared that “the law in Loving did not seek to redefine the historical understanding of marriage. . . .” (Samuels, 2006 NY Slip Op 01213, *8). Indeed, in 1948, when the California Supreme Court struck down California’s anti-miscegenation statute, Justice Carter acknowledged that “[t]he freedom to marry the person of one’s choice has not always existed” but nonetheless concluded that the right was fundamental and that anti-miscegenation statutes impermissiblyiolated that right. (Perez, 32 Cal 2d at 734-735, 198 P2d at 31 [Carter, J., concurring]).
In Loving, the Supreme Court recognized an individual’s fundamental right to be free from governmental intrusion in marriage because the Constitution requires it regardless of whether the common law permitted it. (388 US at 12). Likewise, in Perez, the California Supreme Court recognized each individual’s fundamental right “to join in marriage with the person of one’s choice,” despite the many historical restrictions imposed upon the exercise of that right. (32 Cal 2d at 717, 198 P2d at 21).
Until 1967, this Nation had a long and deep-seated history of disapproving of interracial marriages and the states expressed that disapproval through statutory prohibitions against miscegenation. The statutes were routinely defended as having “been in effect in this country since before our national independence.” ( Perez, 32 Cal 2d at 742, 198 P2d at 35 [Shenk, J. dissenting]). Indeed, anti-miscegenation laws were the most deeply embedded form of legal race discrimination in our nation’s history—lasting over three centuries. (Peggy Pascoe, Why the Ugly Rhetoric Against Gay Marriage is Familiar to This Historian of Miscegenation [2004] hnn.us/articles/4708.html [last accessed April 12, 2006]). Accordingly, the assertion by the First Department ( Hernandez, 26 AD3d at 107) that the motion court “redefine[ed] traditional marriage” and therefore “usurped the Legislature’s mandated role to make policy decision as to which type of family unit works best for society” is predicated upon a narrow and erroneous characterization of the fundamental right to marry – a right so powerfully important that it trumped a definition of marriage (exclusive of interracial, heterosexual marriage) that itself was deeply rooted in the legal and social history of this nation.
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The Prevalence of Existing Laws Is Irrelevant
Respondents also suggest that there is no right to marry someone of the same sex because prohibitions on such marriages are still nearly universal in the United States. According
to this theory, anti-miscegenation statutes should have remained constitutional as long as they remained prevalent. Such an argument is both historically and legally wrong.
As an initial matter, the sheer prevalence of a law does not determine its constitutionality. For example, Lawrence (539 US at 577-578) quoted from Justice Stevens’s dissent in Bowers v Hardwick, 478 US 186, 216 [1986] — “‘the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.’”
Moreover, disapproval of interracial marriage was also once commonplace. When anti-miscegenation statutes were challenged, states relied upon their prevalence and acceptance to defend them. (E.g. Henkle v Paquet (In re Paquet’s Estate), 101 Or 393, 399, 200 P 911, 913 [1921] (miscegenation statutes “‘have been universally upheld as a proper exercise of the power of each state to control its own citizens’”) [citation omitted]; Kirby v Kirby, 24 Ariz 9, 11, 206 P 405, 406 [1922]; Lee v Giraudo (In re Monks’ Estate), 48 Cal App 2d 603, 612, 120 P2d 167, 173 [Ct App 1941], appeal dismissed 317 US 590 [1942]). Prohibitions on interracial marriage remained commonplace at the time those prohibitions were invalidated. As set forth below, when the California Supreme Court struck down an anti-miscegenation statute in 1948, thirty states had similar statutes. And when the Supreme Court struck down anti-miscegenation statutes in Loving, sixteen states still had similar statutes, and 75 percent of white Americans still opposed interracial marriage. (See Charlotte Astor, Gallup Poll: Progress in Black/White Relations, But Race is Still an Issue usinfo.state.gov/journals/itsv/ 0897/ijse/gallup.htm [last accessed April 12, 2006]).
More importantly, prohibitions on interracial marriage did not become unconstitutional because they were found in fewer states; the laws were always contrary to constitutional principles. (Perez, 32 Cal 2d at 736, 198 P2d at 32 [Carter, J., concurring] (“the statutes now before us never were constitutional”)). The fact that only sixteen states had such laws in 1967 may have made the Supreme Court’s decision in Loving less controversial, but the Court’s long- overdue decision was not based on the number of states having anti-miscegenation laws at the time.
Like the prohibitions on interracial marriage, prohibitions on the right of same-sex couples to enter into civil marriage cannot withstand serious constitutional scrutiny based on mere repetition of the claim that there is no fundamental right to “same-sex marriage” or because many states and members of the public continue to support such unconstitutional prohibitions.
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Respondents’ “Applied Equally” Argument Does Not Support The Prohibitions On Marriage Between Individuals Of The Same Sex
In addition to burdening a fundamental right, prohibitions on marriages between individuals of the same sex are discriminatory. Some argue that the prohibition does not discriminate because it applies equally to men and women. Claims of “equal treatment” were also made to justify prohibitions on interracial marriage. An examination of those claims and the cases that ultimately rejected those “justifications” should inform this case.
Defenders of anti-miscegenation statutes repeatedly argued that the statutes did not discriminate because they applied equally to both black and white people:
“[The prohibition] was not then aimed especially against the blacks. . . . They have the same right to make and enforce contracts with whites that whites have with them, but no rights as to the white race which the white race is denied as to the black. The same rights to contract with each other that the whites have with each other; the same to contract with the whites that the whites have with blacks. . . .”
(Lonas, 50 Tenn at 298-299). In 1877, the Alabama Supreme Court relied upon a similar rationale:
“[I]t is for the peace and happiness of the black race, as well as of the white, that such laws should exist. And surely there can not be any tyranny or injustice in requiring both alike, to form this union with those of their own race only, whom God hath joined together by indelible peculiarities, which declare that He has made the two races distinct.”
(Green v Alabama, 58 Ala 190, 195 [1877]). Respondents’ argument here echoes the 1883 words of the Missouri Supreme Court holding that “[t]he act in question is not open to the objection that it discriminates against the colored race, because it equally forbids white persons from intermarrying with negroes, and prescribes the same punishment for violations of its provisions by white as by colored persons. . . .” (Missouri v Jackson, 80 Mo 175, 177 [1883]). Likewise, in 1921, the Supreme Court of Oregon upheld a ban on marriages between Native Americans and whites, stating simply that “the statute does not discriminate. It applies alike to all persons. . . .” (In re Paquet’s Estate, 101 Or at 399, 200 P at 913). And, in 1942, the Supreme Court of Colorado stated: “There is here no question of race discrimination. The statute applies to both white and black.” (Jackson v City & Cty of Denver, 109 Colo 196, 199, 124 P2d 240, 241 [1942]).
In 1948, the California Supreme Court finally rejected this unthinking mantra, explaining the fallacy of “equal application”:
“It has been said that a statute such as section 60 does not discriminate against any racial group, since it applies alike to all persons whether Caucasian, Negro, or members of any other race. . . . The decisive question, however, is not whether different races, each considered as a group, are equally treated. The right to marry is the right of individuals, not of racial groups. The equal protection clause of the United States Constitution does not refer to rights of the Negro race, the Caucasian race, or any other race, but to the rights of individuals.”
(Perez, 32 Cal 2d at 716, 198 P2d at 20 [emphasis added; citation omitted]). Thus, the proper analysis of the issue focuses on the individual. Because a black individual was not permitted to marry an individual whom a white individual could marry, the anti-miscegenation statute was found to discriminate on the basis of race. Similarly, the statute discriminated on the basis of race because a white individual could not marry an individual whom a black individual could marry.
Almost twenty years later, the United States Supreme Court reached the same conclusion: “[W]e reject the notion that the mere ‘equal application’ of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription. . . .” (Loving, 388 US at 8; see also McLaughlin v Florida, 379 US 184, 191 [1964] (“Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation”)). For the same reason, any simplistic “equal application” argument must fail. Its rhetorical appeal is matched only by its logical weakness. Accordingly, the decisions of the First and Third Departments of the Appellate Division should be reversed.
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HISTORICAL BACKGROUND
The majority and concurring opinions in Hernandez and the majority decision in Samuels suggest that Loving must be seen as a case about race discrimination alone. For the reasons set forth in great detail in this brief, Amici maintain that it is fully appropriate and instructive to look to the history of other civil rights struggles, and specifically to the history of anti-miscegenation laws, in resolving the issue before it now – the prohibition against civil marriage by same- sex couples. At the core of both prohibitions lies the violation of an individual’s right to marry.
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Interracial Marriage Was Prohibited In This Nation For More Than 300 Years
The interracial marriage prohibition was deeply rooted in our Nation’s history and tradition. Statutes prohibiting interracial marriage were enforced in American colonies and states for more than three centuries. (See Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage & Law—An American History 253-254 [2002], annexed hereto as Tab A). The first anti-miscegenation law was enacted in Maryland in 1661. (Rachel F. Moran, Interracial Intimacy: The Regulation of Race & Romance 19 [2001], annexed hereto as Tab B). Virginia followed suit soon after. (See id.).
Interracial marriage was so far outside of the realm of traditional marriage in colonial America that Virginia amended its anti-miscegenation law in 1691 to banish from the community any white person who married a “negro,” “mulatto” or Indian. (Wallenstein, supra, at 15-16). Couched in “the language of hysteria rather than legalese,” the avowed purpose of Virginia’s 1691 law was to prevent “that abominable mixture and spurious issue” of whites with blacks or Indians. (Id. at 15).
Although the first American anti-miscegenation laws were enacted in the Chesapeake Bay colonies, they quickly spread throughout the country. Massachusetts enacted an anti-miscegenation law in 1705. (Carter G. Woodson, The Beginnings of Miscegenation of the Whites and Blacks, in Interracialism: Black-White Intermarriage in American History, Literature & Law 42, 45, 49 [Werner Sollors ed., 2000], annexed hereto as Tab C). Pennsylvania passed its anti-miscegenation law in 1725, and Delaware enacted a similar law in 1726. (Charles Frank Robinson II, Dangerous Liaisons: Sex & Love in the Segregated South 4 [2003], annexed hereto as Tab D).
By the time of the Civil War, laws prohibiting interracial marriage covered most of the South and much of the Midwest, and they were beginning to appear in Western states. (See David H. Fowler, Northern Attitudes Toward Interracial Marriage: Legislation & Public Opinion in the Middle Atlantic & the States of the Old Northwest, 1780-1930 214-219 [1987], annexed hereto as Tab E). The proponents of these laws argued that they were necessary to uphold the law of nature:
“Hybridism is heinous. Impurity of races is against the law of nature. Mulattoes are monsters. The law of nature is the law of God. The same law which forbids consanguineous amalgamation; forbids ethnical amalgamation. Both are incestuous. Amalgamation is incest.”
(Henry Hughes, Treatise on Sociology, Theoretical & Practical 239-240 [1854], annexed hereto as Tab F).
Although New York State never enacted an anti-miscegenation law, interracial relations were still subject to strong taboo here and vilified in the political arena. Indeed, the term “miscegenation” was first used in an anonymous propaganda pamphlet printed in New York City in 1863. The term was coined from two Latin words meaning “to mix” and “race.” The pamphlet – falsely attributed to the Republican Party and abolitionists — advocated the “interbreeding” of the white and black races so that they would become indistinguishably mixed. The pamphlet was later exposed as a “dirty trick” instigated by Democrats to discredit Republicans. (See e.g. Encyclopedia of the United States in the Nineteenth Century, Miscegenation [2001] (as reproduced in History Resource Center by Gale Group), annexed hereto as Tab G; Encyclopedia of African-American Culture & History, Miscegenation & Intermarriage [1996] (as reproduced in History Resource Center by Gale Group), annexed hereto as Tab H; The Miscegenation Hoax www.museumofhoaxes.com/ miscegenation.html [last accessed April 12, 2006]). Indeed, “Democrats invented [the term] in 1863 for the express purpose of demonizing black-white relationships and discrediting the Republican party.” (Leslie M. Harris, In the Shadow of Slavery: African American in New York City, 1626-1863 191 [2003], annexed to hereto as Tab I).
During Reconstruction, Southern Democrats adopted the New York- minted term “miscegenation” and insisted on the necessity of preserving the sanctity of marriage by banning interracial marriage. (See Moran, supra, at 26). A few Southern states repealed their anti-miscegenation laws during Reconstruction, but societal pressure to spurn interracial relationships remained steadfast. (Id.). When white Southern males regained control of their state legislatures after Reconstruction, they promptly reinstated anti-miscegenation laws. (See id. at 27).
Nor did ratification of the Fourteenth Amendment and its guarantee of equal protection bring any change in the courts’ view of the constitutionality of these laws. Over the next century, scores of courts confronted challenges to these racial restrictions and (with only two exceptions) consistently upheld the laws on the basis of longstanding tradition, “equal” application to the races and the “logic” of prohibiting interracial marriage. For example, in 1878, the Supreme Court of Appeals of Virginia stated:
“The public policy of this state, in preventing the intercommingling of the races by refusing to legitimate marriages between them has been illustrated by its legislature for more than a century. . . . The purity of public morals, the moral and physical development of both races, and the highest advancement of our cherished southern civilization . . . all require that they should be kept distinct and separate, and that connections and alliances so unnatural that God and nature seem to forbid them, should be prohibited by positive law, and be subject to no evasion.”
(Kinney v Virginia, 71 Va 858, 869 [1878]; see e.g. Dodson v Arkansas, 61 Ark 57, 60-61, 31 SW 977, 977-978 [1895] (anti-miscegenation law held not unconstitutional or even “affected” by amendments to Federal Constitution); Jackson, 80 Mo at 177 (traditional anti-miscegenation law held not to be discriminatory and violative of the Fourteenth Amendment to the Federal Constitution as it applies equally to the races); Green, 58 Ala at 195-197 (same); Lonas, 50 Tenn at 312 (holding anti-miscegenation law unaffected by the Fourteenth Amendment to the Federal Constitution); Indiana v Gibson, 36 Ind 389, 393-394 [1871] (same); Scott v Georgia, 39 Ga 321, 323, 327 [1869] (upholding constitutionality of anti-miscegenation law and stating that “the offspring of these unnatural connections are generally sickly and effeminate”)).
Despite the proliferation of anti-miscegenation laws, opponents of interracial marriage feared that state laws were insufficient to protect the sanctity of marriage. In December 1912, Representative Seaborn Roddenberry of Georgia proposed to amend the United States Constitution to declare “Intermarriage between Negroes or persons of color and Caucasians . . . is forever prohibited.” (49 Cong Rec 502 [Dec. 11, 1912]). Leaders from around the country denounced interracial marriage. For example, Governor William Mann of Virginia called miscegenation “‘a desecration of one of our sacred rites.’” Even New York’s Governor John Dix called it “‘a blot on our civilization’” and “‘a desecration of the marriage tie [that] should never be allowed.’” (See Robinson, supra, at 79; see also Denise C. Morgan, Jack Johnson: Reluctant Hero of the Black Community, 32 Akron L Rev 529, 548 [1999]).
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Marriage Prohibitions Extended To Numerous Racial Groups
Although the first anti-miscegenation laws targeted whites and blacks, many states expanded their application to other racial groups. (See Peggy Pascoe, Miscegenation Law, Court Cases & Ideologies of “Race” in Twentieth Century America, in Interracialism: Black-White Intermarriage in American History, Literature & Law 178, 183 [Werner Sollors ed., 2000], annexed hereto as Tab J). Twelve states prohibited marriage between whites and Native Americans. (Id.). After the mid-eighteenth century, when people from the Far East began to immigrate to the United States, states with substantial populations of Chinese and Japanese responded by enacting anti-miscegenation laws prohibiting marriage between whites and “Mongolians.” (Moran, supra, at 28-36).
As new “nonwhite” immigrant communities formed, states amended their anti-miscegenation laws to prevent marriages between whites and these immigrants. (Id. at 31-32). In 1862, Oregon passed its first anti-miscegenation law. (See 1862 Or Laws §63-102). In 1866, Oregon amended the statute to prohibit marriage between “any white person, male or female” and “any negro, Chinese, or any person having one fourth or more negro, Chinese, or Kanaka [Native Hawaiian] blood, or any person having more than one-half Indian blood.” (See 1866 Or Laws § 23-1010).
In 1850, California enacted a law prohibiting marriages between “white persons” and “negroes or mulattoes.” (Leti Volpp, American Mestizo: Filipinos & Anti-Miscegenation Laws in California, in Mixed Race America & the Law: A Reader 86 [Kevin R. Johnson ed., 2003], annexed hereto as Tab K). Then, in 1878, California amended its constitution to restrict the intermarriage of whites and Chinese. (See Moran, supra, at 31). Shortly thereafter, the California Legislature amended the Civil Code to ban the union of “‘a white person with a negro, mulatto, or Mongolian.’” (Id. [citation omitted]). Later, it amended the law to include “‘members of the Malay race”’ as well. (See id. at 38 [citation omitted]).
The specific targets of anti-miscegenation laws varied from state to state, as different racial or national groups were singled out by specific statutes reflecting legislative bigotry directed at particular racial groups. (Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity & Adoption 220 [2003], annexed hereto as Tab L). Other states enforced their anti-miscegenation policies on the basis of judicial decisions that turned on white/non-white distinctions. For example, Virginia voided a marriage between a white person and a person of Chinese descent on the basis of that state’s statute making it “unlawful for 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.” (See Naim v Naim, 197 Va 80, 81, 87 SE2d 749, 750 [citation omitted], vacated and remanded 350 US 891 [1955], adhered to 197 Va 734, 90 SE2d 849 [1956]). All told, thirty-eight states had anti-miscegenation laws in effect at one time or another. (See Wallenstein, supra, at 253-254). By the end of World War II, thirty states still had such statutes. (See id. at fig. 8).
Of course, affluent people could avoid certain consequences of the anti-miscegenation laws. For example, John Mercer Langston, the first African American to be elected to public office and the founder in 1868 of the Howard University School of Law, was able to succeed to the wealth of his white father (and the opportunities that such wealth would enable) as a result of his father’s capacity to contract around certain consequences of Virginia’s anti-miscegenation laws to ensure that his children would inherit his wealth. Upon their parents’ deaths, those children, including John Mercer Langston, were taken in by a family friend in a free state — Ohio. (See John Mercer Langston Bar Assn web site www.jmlba.org/JMLBio.htm [last accessed April 12, 2006]; Kansas St Hist Soc’y web site www.kshs.org/publicat/history/ 1999winter_sheridan.htm [last accessed April 12, 2006]). Similarly, same-sex couples of means who are denied the right to marry can, with respect to at least a certain few of the benefits attendant to marriage (i.e., rights of succession), contract for the same, albeit privately and at great expense. This juxtaposition highlights yet another dimension to the inequity that flows from the deprivation of equal marriage rights — a built-in preference for those affected persons of means.
State anti-miscegenation laws were considered constitutional until 1967, when the U.S. Supreme Court struck down such discrimination as an unconstitutional interference with an individual’s fundamental right to marry. (Loving, 388 US at 12; see also Naim, 197 Va at 81, 87 SE2d at 750; Kinney, 71 Va at 869; Dodson, 61 Ark at 60-61, 31 SW at 977-978 (anti-miscegenation law held not unconstitutional or even “affected” by amendments to Federal Constitution); Jackson, 80 Mo at 177 (traditional anti-miscegenation law held not to be discriminatory and violative of the Fourteenth Amendment to the Federal Constitution as it applies equally to the races); Green, 58 Ala at 195-197 (same); Lonas, 50 Tenn at 312 (holding anti-miscegenation law unaffected by the Fourteenth Amendment to the Federal Constitution); Gibson, 36 Ind at 393-394 (same); Scott, 39 Ga at 323, 327 (upholding constitutionality of anti-miscegenation law and stating that “the offspring of these unnatural connections are generally sickly and effeminate”).
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Anti-Miscegenation Laws Enjoyed Vast Popular Support
Bans on interracial marriage reflected contemporary public sentiment. In 1958, a Gallup Poll indicated that 96 percent of all Americans opposed interracial marriage. (See Nicholas D. Kristof, Marriage: Mix and Match, NY Times, Mar. 3, 2004, at A23). In 1972—five years after the Supreme Court declared bans on interracial marriage unconstitutional—a Gallup Poll reported that 75 percent of all white Americans still opposed interracial marriage. (See Astor, supra). Indeed, it was not until 1998 that the voters of the State of South Carolina voted to amend that state’s constitution to eliminate the anti-miscegenation law that had been enshrined in that constitution 103 years earlier. Judy Sheppard, Alabama Voters May Bury Interracial Marriage Ban; It Hasn ‘t Had Legal Force For Decades, Atlanta Const., Sept. 26, 2000, at 11A. And in 2000, Alabama became the last state to repeal its anti-miscegenation law, with 40 percent of its electorate voting to keep the prohibition on the books.(TheFreeDictionary.com,Miscegenation www.encyclopedia. thefreedictionary.com/miscegenation [last accessed April 12, 2006]).
CONCLUSION
For the reasons set forth above, NYCLA and NBJC, as amici curiae, respectfully request this Court to find New York’s prohibition on marriage between same-sex partners unconstitutional and reverse the decisions of the First and Third Departments of the Appellate Division below that denied same-sex- couples the same right to enter into civil marriages that is enjoyed by the heterosexual citizens of New York State.
Dated: New York, New York
April 12, 2006
Respectfully submitted,
By: Norman L. Reimer
President
14 Vesey Street
New York, NY 10007
(Tel) 212-267-6646
(Fax) 212-406-9252
National Black Justice Coalition,
Amicus Curiae
Washington National Office
1725 I Street, NW, Suite 300
Washington, DC 20006
Att.: H. Alexander Robinson
Executive Director/CEO
(Tel) 202-349-3755
(Fax) 202-349-3757
Of Counsel:
Ivan J. Dominguez
Kathryn Shreeves
Jean M. Swieca