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NYS Bar Association Same-Sex Couples Recognition Report 2004

NYS Bar Association Same-Sex Couples Recognition Report 2004

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Published by: Paul Schindler on May 17, 2011
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Perhaps a more compelling question is whether maintaining marriage as

an institution solely for opposite-sex couples improves the well-being of children. In

Kandu, a federal bankruptcy court recently found DOMA’s restrictions on marriage

rights to be rationally related to legitimate state interests in promoting the welfare of


In that case, a lesbian couple married in Canada filed a joint bankruptcy

petition in their home jurisdiction, in Washington State.1380

In concluding that DOMA

survived rational basis review, the judge observed that “encouraging the stability and

legitimacy of [a heterosexual] union for the benefit of the offspring” was a legitimate and

important function of marriage.1381

He further observed that “[a]uthority exists that the

promotion of marriage to encourage the maintenance of stable relationships that facilitate

to the maximum extent possible the rearing of children by both of their biological parents

is a legitimate congressional concern.”1382


See Lapides v. Lapides, 254 N.Y. 73, 80 (1930); see also Hatch v. Hatch, 110 N.Y.S. 18 (Sup. Ct.
Special Term Erie County 1908) (declining to annul marriage where, because of advanced age, “desire for
support and companionship” motivated marriage).


315 B.R. 123. See supra note 1371 for a more complete discussion of this case.


See id. at 130. The parties filed briefs in response to the court’s own Motion to Show Cause to
assess whether DOMA prohibited the couple from filing jointly. Id.


See id. at 145.


Id. at 146. The opinion notes that “[t]he Court’s personal view that children raised by same-sex
couples enjoy benefits possibly different, but equal, to those raised by opposite-sex couples, is not relevant
to the Court’s ultimate decision. It is within the province of Congress, not the courts, to weigh the evidence
and legislate on such issues, unless it can be established that the legislation is not rationally related to a
legitimate governmental end.” Id.


The judge added that he personally believed there was insufficient

empirical evidence to support the assertion that denying marriage to gay men and

lesbians benefits children and that his “personal view [was] that children raised by same-

sex couples enjoy benefits possibly different, but equal, to those raised by opposite-sex

couples”; however, he deemed his personal views “not relevant to the Court’s ultimate


At least three states – Florida, Mississippi and Utah – expressly prohibit

same-sex couples from adopting children by statute. Florida’s law provides that “[n]o

person eligible to adopt under this statute may adopt if that person is a homosexual.”1384

Mississippi’s statute also specifically details that “[a]doption by couples of the same

gender is prohibited.”1385

Utah more generally prohibits adoption by all unmarried


The Florida statute prohibiting gay men and lesbians from adopting


survived numerous court challenges,1387

most recently in Lofton v. Secretary of the

Department of Children and Family Services.1388

Plaintiffs, lesbian and gay foster

parents and guardians seeking to adopt their wards, brought claims asserting that the


See id.


FL STAT. ch. 63.042(3) (2002).


2004 Miss. Laws ch. 527, § 93-17-3(2).


UT CODE ANN. § 78-30-1(3)(b). “A child may not be adopted by a person who is cohabitating in
a relationship that is not a legally valid and binding marriage under the laws of this State.” The statute goes
on to define “cohabitating” as “residing with another person and being involved in a sexual relationship
with that person.” Id.


See, e.g., Seebol v. Farie, 16 Fla. L. Weekly Supp. C52 (Fla. Cir. Ct. 1991); Cox v. Fla. Dep’t of
Health & Rehabilitative Servs.,
656 So. 2d 902 (Fla. 1995).


See Lofton v. Sec’y of the Dep’t of Children & Family Servs., 358 F.3d 804 at *18 (11th Cir. 2004)

(“Lofton”) (affirming summary judgment for the defendants that Florida’s statute prohibiting homosexuals

from adopting is constitutional).


statute violated “their rights to privacy of intimate association, family integrity, as well as

their Fourteenth Amendment rights of Due Process and Equal Protection.”1389

The 11th

Circuit rejected each of these claims, concluding that one’s status as a foster parent does

not guarantee a right to be an adoptive parent1390

and accepting the State’s assertion that

“the presence of both male and female authority figures [is] critical to optimal childhood

development and socialization.”1391

Some states have relied on judicial precedent to restrict parenting to

heterosexual couples and individuals. In Bottoms v. Bottoms (“Bottoms”),1392

a Virginia

trial court held that the biological mother of a child was an unfit parent as a matter of law

after the mother admitted being involved in a lesbian relationship.1393

The appellate court

reversed, concluding that “the evidence fails to prove [that the mother] abused or

neglected her son, that her lesbian relationship . . . has or will have a deleterious effect on

her son, [or] that she is an unfit parent.”1394

The grandmother, to whom the trial court

had originally awarded custody, appealed to the Virginia Supreme Court, which

overturned the appellate court ruling and reinstated the trial court’s order.1395


Virginia Supreme Court, in granting custody to the grandmother, expressed concern


Lofton v. Kearney, 157 F. Supp. 2d at 1372, 1378 (S.D. Fla. 2001).


Lofton, 358 F.3d at 813 (citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S.

816, 847 (1977)).


Id. at 818.


457 S.E.2d 102 (Va. 1995). The Bottoms case followed the ruling in Roe v. Roe, 324 S.E.2d 691,
694 (Va. 1985), where the Virginia Supreme Court held that if a parent was involved in a same-sex
relationship, the court was required to deny custody and grant extremely limited visitation. Shapiro, supra
note 1234, at 631.


Bottoms, 444 S.E.2d 276, 279-80 (Va. Ct. App. 1994).


Id. at 278. The court continued: “To the contrary, the evidence showed that [the mother] is and
has been a fit and nurturing parent who has adequately provided and cared for her son.” Id.


Bottoms, 457 S.E.2d at 108-09.


about the long-term consequences of being raised by lesbians, including the social

condemnation that the child might face.1396

In 1999, the Arkansas Child Welfare Agency Review Board enacted a

policy that excludes gay men and lesbians from becoming foster parents in Arkansas.1397

Arkansas courts also have been reluctant to grant custody to gay or lesbian parents. In

Larson v. Larson,1398

the Arkansas Court of Appeals affirmed a lower court’s decision to

grant primary custody to the biological father of the children in question after learning of

the biological mother’s lesbian relationship.1399

The Court of Appeals agreed with the

lower court’s reasoning of the negative impact the mother’s sexual orientation would

have on the children and affirmed the decision.1400

Other courts have declared same-sex couples and gay and lesbian

individuals suitable parents, with the same interests and abilities as heterosexual parents.

Notably, without deciding the question of whether same-sex couples should be permitted

to marry,1401

the Supreme Court in Lawrence observed that “[p]ersons in a homosexual

relationship may seek autonomy” for the purposes of marriage, procreation,


Id. at 108.


See Arkansas Gay Adoption Ban Remains in Place, MEMPHIS TRIANGLE J., Dec. 2002, at 1. A bill
prohibiting gay men and lesbians from adopting or becoming foster parents was not recommended by the
House Committee to be passed onto the Arkansas House of Representatives for consideration for enactment
in 2001. See H.B. 1026, 83rd Gen. Assem. Reg. Sess. (Ark. 2001); Michael Rowlett, Gay, Lesbian
Adoption Ban Rejected by House Committee,
ARK. DEMOCRAT-GAZETTE, Jan. 27, 2001, at A10.


Larson v. Larson, 902 S.W.2d 254 (Ark. 1995).


Id. at 255.


Id. at 256.


See Lawrence, 539 U.S. at 578 (noting that the case “does not involve whether the government
must give formal recognition to any relationship that homosexual persons seek to enter”). Justice Scalia
had a decidedly different perspective, observing that, although “[m]any will hope” it is not so, “[t]oday’s
opinion dismantles the structure of constitutional law that has permitted a distinction to be made between
heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” Id. at 604.


contraception, family relationships, child rearing, and education, “just as heterosexual

persons do.”1402

Some courts specifically have found that a state’s interests in promoting

the well-being of children would not be harmed by permitting same-sex couples to marry.

For example, when considering that question, the Hawai’i Circuit Court concluded that it

could find no causal link between allowing same-sex couples to marry and adverse

effects upon the optimal development of children.1403

The Hawai’i court also noted that

if same-sex couples are permitted to marry, “the children being raised by gay or lesbian

parents and same-sex couples may be assisted, because they may obtain certain

protections and benefits that come with or become available as a result of marriage.”1404

Two Washington State courts have also recognized the positive impact

marriage has on families with children and have concluded that same-sex couples should

be permitted to marry. In Castle v. State, the court noted that children born or adopted


Id. at 574 (citing Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992)).


Baehr, 1996 WL 694235, at *17 -18. Specifically, the court found:

The sexual orientation of parents is not in and of itself an indicator of parental fitness; does not
automatically disqualify them from being good, fit, loving or successful parents and is not in and of itself
an indicator of the overall adjustment and development of children.

Gay and lesbian parents and same-sex couples have the potential to raise children that are happy,
healthy and well-adjusted and can be as fit and loving parents as non-gay men and women and different-sex

Although children of gay and lesbian parents and same-sex couples may experience symptoms of
stress and other issues related to their non-traditional family structure, the available scientific data, studies
and clinical experience suggests that children of gay and lesbian parents and same-sex couples tend to
adjust and develop in a normal fashion.

Although there is a benefit to children which comes from being raised by their mother and father
in an intact and relatively stress-free home, same-sex marriage is not likely to result in significant
differences in the development or outcomes of children raised by gay or lesbian parents and same-sex

Neither the public interest in the well-being of children and families nor the optimal development
of children will be adversely affected by same-sex marriage.
These findings have been edited, but largely follow the language used by the court.


Baehr, 1996 WL 694325, at *18 (citing Baehr v. Lewin, listing marital rights and benefits).


during the duration of the state-approved contract of marriage “gain significant rights in

relationship to all parties to the contract and even the state will not allow the contract to

be dissolved without taking into account how the dissolution might affect the children

and see, to the extent possible, that the children are protected.”1405

The court stated that

because Washington permits same-sex couples to adopt children, it is questionable that

the State would not require, let alone allow, “the permanency of a binding contract

between same-sex couples the way it requires such a contract with opposite sex


In Anderson v. King County, the court observed that with the availability

of adoption, foster parenting and assisted reproduction technologies, “sexual orientation

is no bar to good parenting.”1407

If the interest of society is to protect children, the court

observed, it is irrational to harm certain children by devaluing their immediate


According to the court, civil marriage enhances family stability and social

adjustment and that “when a civil marriage is dissolved, there is a right to court oversight

to provide an orderly and equitable distribution of cases and obligations and to protect the

best interests of any children involved.”1409

The court therefore concluded that “the goal

of nurturing and providing for the emotional wellbeing of children would be rationally


Castle, 2004 WL 1985215, at *3.


Id. at *5. By way of example, the court cited State ex. rel. D.R.M., where a long-term same-sex
couple had a child through alternative insemination. When their relationship broke down, the non-
biological parent was found to have no obligations to the child, including an obligation of child support.
109 Wash. App. 182 (2001).


Id. at *9.




2004 WL 1738447 at *3.


served by allowing same-sex couples to marry and that the same goal is impaired by

prohibiting such marriages.1410

Courts in Massachusetts and Vermont also have demonstrated that the

protection of children would be furthered by allowing same-sex couples the right to

marry. The court in Goodridge v. Department of Public Health reasoned that

“[e]xcluding same-sex couples from civil marriage will not make children of opposite-

sex marriage more secure, but it does prevent children of same-sex couples from enjoying

the immeasurable advantages that flow from the assurance of ‘a stable family structure in

which children will be reared, educated, and socialized.’”1411

Likewise, in Baker v. State,

the Vermont Supreme Court concluded that “the exclusion of same-sex couples from the

legal protections incident to marriage exposes their children to the precise risks that the

State argues the marriage laws are designed to secure against.”1412

New York also has addressed the issues that arise when children are raised

by same-sex parents. Attorney General Spitzer points out in his Informal Opinion that

New York State’s treatment of second-parent adoptions shows that the State is not

concerned that the welfare of children who are raised in same-sex couple households will

be compromised by that circumstance. This is evidenced by the Court of Appeals’

holding permitting the same-sex partner of a child’s biological or adoptive parent to

become the child’s second legal parent by means of adoption1413

and by regulations


Id. at *10.


798 N.E.2d 941, 964 (quoting 798 N.E.2d at 995 (Cordy, J., dissenting)).


744 A.2d 864, 882.


See In re Jacob, 86 N.Y.2d 651 (1995).


preventing adoption agencies from rejecting applicants solely based on their sexuality.1414

As noted by the Attorney General, these and other holdings, statutes, and regulations run

counter to the proposition that excluding same-sex couples from the opportunity to marry

would advance the State’s interest in protecting the well-being of children.


Maintaining the Traditional Understanding of a Marriage as a
Union between a Man and a Woman

Attorney General Spitzer suggests that, of the three interests described in

his Informal Opinion, maintaining the traditional understanding of marriage as a union

between a man and a woman presents a much closer question under New York law.1415

The question is whether traditional marriage – that reserved only for opposite-sex couples

and not same-sex couples – can survive constitutional assessment on the grounds that

many people feel deeply about this traditional definition? Is it constitutionally sufficient

to say that this is how we have always done it and we should not lightly alter the ways in

which we have always done it? Moreover, can this tradition be upheld even if it was not

born of animus, but if it causes harm (as described in Part I of this report) to a particular

group in the present?

Many religious institutions would insist that maintaining marriage as a

heterosexual institution is essential for the functioning of modern society. Others would

assert that religious tradition requires, or at least permits the marriage of same-sex

couples; still others would remind us, however, that although our lives might be informed


See 18 N.Y.C.R.R. § 421.16(h)(2) (McKinney 2003) (prohibiting qualified adoption agencies from
rejecting applicants “solely on the basis of homosexuality“).


See Att’y Gen. Op., supra note 1165.


by our religious values and experiences, the courts are not permitted to rely on religious

tenets to determine the outcome of civil law.1416

There also are those who believe that marriage is a historically defined

term whose definition includes the limitation that it is solely a union between a man and a

woman. Individuals holding this view may be strongly committed to ensuring that same-

sex couples have the opportunity to enter into legally recognized relationships with many,

if not all, the same legal protections and responsibilities as are now extended to married

couples. They argue, however, that this should be done without redefining the word

“marriage,” but rather by the creation of some other legally recognized concept such as a

comprehensive domestic partnership or a civil union.

Finally, there are those who believe that even the creation of

comprehensive domestic partnership schemes or the advent of civil unions is just a way

of maintaining an irrational divide between opposite-sex unions and same-sex unions.

For them, this “separate but unequal” approach is a tradition that ought not to withstand

any level of constitutional scrutiny.


See, e.g., Memorandum from Dr. Gerald B. Kieschnick, President, The Lutheran Church, Missouri
Synod, to The Lutheran Church (October 24, 2003) (on file with authors) (stating that the issuance of
marriage licenses to same-sex couple is unacceptable); Press Release, New York State Catholic
Conference, Response To Attorney General’s Opinion Concerning Marriage Of Same-Sex Couples
(March 3, 2004), available at http://www.nyscatholicconference.org/pages/news/show_newsDetails
.asp?id=121&cat=News%20Releases (disagreeing with the conclusion Mr. Spitzer reaches regarding the
recognition of same-sex unions from other jurisdictions and calling for the passage of a NY mini-DOMA);
Press Release, Rabbinical Council of America, Rabbinical Council of American and Union of Orthodox
Congregations of America Oppose Same-Sex Marriage
(March 4, 2002) (citing religious tradition, both
groups reaffirmed the prohibition of homosexuality and the definition of marriage as between a man and a
woman). But see Jan Nunley, Episcopal Church Leaders Urge Restraint on Marriage Amendment,
EPISCOPAL NEWS SERVICE (March 2, 2004) (declaring President Bush’s endorsement of a Federal Marriage
Amendment “clear and unabashed discrimination“); Press Release, Union of American Hebrew
Congregations, Civil Marriage for Gay and Lesbian Jewish Couples (November 2, 1997) (on file with
authors) (reaffirming that full equality under the law for gay men and lesbians requires legal recognition of
monogamous domestic gay and lesbian relationships); Press Release, Reconstructionist Rabbinical College,
In Support of Marriage for Same-Sex Couples (April 2004) (stating that equality demands recognition of
the relationships of gay men and lesbians through marriage).


To better understand the constitutional ramifications and general legal

concerns raised by these issues, the Committee looked to the review of cases and statutes

that follows.

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