New York Law School

Art Leonard Observations

Posts Tagged ‘Chief Judge Judith Kaye’

Manhattan Appeals Court Revives Kelly Gunn’s Custody Lawsuit Against Circe Hamilton

Posted on: July 2nd, 2018 by Art Leonard No Comments

A five-judge panel of the New York State Appellate Division, First Department, based in Manhattan, has revived a lawsuit by Kelly Gunn, who is seeking joint custody of a child adopted by her former partner, Circe Hamilton. New York Supreme Court Justice Frank Nervo had dismissed the lawsuit on April 13, 2017, finding that despite her close relationship with the child, Gunn was not a “parent” under New York’s Domestic Relations Law, so lacked “standing” to sue for custody or visitation.  But the appellate court unanimously ruled on June 26, 2018, in an opinion by Justice Judith J. Gische, that Gunn should have another chance to call upon the equitable powers of the court to recognize her relationship with the child.  In re K.G. v. C.H., 2018 WL 3118937, 2018 N.Y. App. Div. LEXIS 4617, N.Y. Slip Op 04683.

This is just the latest of a series of opinions dating back more than a quarter century, grappling with the question of when the courts should recognize parental standing where an unmarried same-sex couple was raising a child together, broke up, and the birth or adoptive parent resisted their former partner’s attempt to continue in a parental role with the child.

In 1991, the highest New York court’s answer to the question was “never,” in the case of Alison D. v. Virginia M. The Court of Appeals said then that only a person related to the child by blood or adoption could have standing to seek custody or court-ordered visitation, giving a narrow interpretation to the word “parent” as used in the statute, which did not itself define the term.  Then-Chief Judge Judith Kaye wrote a dissent that was widely quoted by courts in other states as they adopted legal theories to allow these “second parents” to sue for custody or visitation rights.  Judge Kaye argued that the court’s decision failed to take account of the reality of non-traditional families, including those headed by LGBT couples, and would ultimately be harmful to the best interests the children, which courts would be precluded from considering if “second parents” did not have standing to bring the cases.

But the New York appellate courts stood firmly opposed to allowing such lawsuits until August 2016, when the Court of Appeals modified its position in the case of Brooke S.B. v. Elizabeth A. C. C. In that case, the court focused on a written agreement that two women made to jointly undertake the creation of a new child through donor insemination for them to raise together, and found that where the couple had gone through with their agreement, had the child, and raised it together for some time before splitting up, it was appropriate to allow the second parent to seek custody or visitation so that a court could determine whether it was in the child’s best interest to continue the second parent’s relationship with the child.

The court’s opinion in Brooke S.B., written by the late Judge Sheila Abdus-Salaam, was narrow and cautious, announcing a ruling based on the facts of that case, and leaving to later development other possible theories for second parents to use. In one case decided shortly after, the court accepted a “judicial estoppel” theory, where the birth mother had sued her former partner for child support, alleging that she had a parental obligation.  When the former partner than sued to assert parental rights, the Court of Appeals said that the birth mother could not deny her former partner’s parental status, which would be inconsistent with her position in the earlier case, even though the parties had not made a formal agreement like the one in Brooke S.B..

Kelly Gunn and Circe Hamilton, who had been together since 2004, agreed in 2007 that they would undertake an international adoption and raise a child together as a family. The plan was that Hamilton would adopt a child overseas, bring the child home to New York, and that Gunn would then complete a “second parent” adoption, a procedure which has been possible in New York for many years.  However, these plans had not come to fruition when the women’s romantic relationship ended in December 2009.

In 2010, Gunn and Hamilton signed a separation agreement negotiated with the assistance of lawyers, formally ending their cohabitation and romantic relationship, and dividing up their assets (including real property). Despite this breakup, Hamilton continued to deal with adoption agencies and eventually did adopt a child overseas with Gunn’s encouragement in the summer of 2011.  Gunn was in Europe on business at the time and met Hamilton and the child in London, from where they flew back to New York.  Although the women’s romantic relationship had ended, they had remained friends, and there is an extensive record of communications between them, which the trial court considered in reaching a determination that the 2007 agreement had not survived the breakup of the relationship.

Despite the breakup, Gunn was eager to be involved in the child’s life, and Hamilton accommodated her by allowing frequent contact, resulting in Gunn forming an attachment to the child. In August 2016, around the time that the Court of Appeals had overruled the Alison D. decision in the Brooke S.B. case, Hamilton, a British native, announced that she was planning to move back to England with the child and Gunn quickly sprang into action, filing this lawsuit and seeking a temporary order requiring Hamilton to remain in New York with the child while the case was litigated.  Gunn claimed that under the Brooke S.B. case, she had “standing” to seek joint custody and visitation rights because of the 2007 agreement the women had made.

Justice Nervo did not dismiss the case outright, and there was a temporary order, but after a lengthy trial he determined that the 2007 agreement had not survived the women’s breakup, and that by the time Hamilton adopted the child, she was acting on her own. The judge concluded that Gunn was a friend who had formed an attachment with the child, but not a “parent” within the meaning of the Domestic Relations Law, so she did not have standing to seek any parental rights.

The decision proved controversial from the moment it was announced. Despite the narrowness of the Court of Appeals ruling in Brooke S.B., that court had acknowledged the possibility that in a future case it might be appropriate to recognize parental standing in the absence of an express agreement, using a legal doctrine called “equitable estoppel,” which has been recognized by courts in several other states in lesbian parent custody disputes.  Gunn argued that this was such an appropriate case.  However, Justice Nervo, having concluded that Gunn did not have standing under his interpretation of the Brooke S.B. decision, had ended the trial without letting Gunn present additional evidence that could be relevant to an equitable estoppel claim.

Writing for the Appellate Division, Judge Gisch found that this may be the kind of case where equitable estoppel is appropriate. Certainly, the Court of Appeals’ Brooke S.B. decision did not foreclose the possibility.  While agreeing with Justice Nervo that the facts supported a conclusion that the 2007 agreement had terminated together with the parties’ romantic relationship well over a year before Hamilton adopted the child, and thus the case did not come squarely within the holding of Brooke S.B., nonetheless the court held that both parties should have the opportunity to present evidence about whether this would be an appropriate case to apply equitable estoppel.

Equitable estoppel might be a basis for Gunn to have standing to sue, but an ultimate decision on the merits would require the court to determine what would be in the best interests of the child. As to that, the court said, the child’s voice was an indispensable component, and was so far conspicuous by its absence from this case.   It is usual to appoint a person – frequently a lawyer – as “guardian ad litem” to represent the interest of the child in a custody and visitation dispute when the child is deemed too young and immature to speak for him or herself.  In this case, the child was born in 2011, and so by the time a hearing will be held will be seven years old – perhaps old enough to speak for himself, but that is something for Justice Nervo to determine.

The trial court will have to decide whether this is a case where Gunn had assumed a sufficiently parental role toward the child, with the consent or at least the acquiescence of Hamilton, to give her “standing” to be considered a parent for purposes of a custody and visitation contest, and then whether, under all the circumstances, it would be in the best interest of the child for Gunn to continue playing a parental role in the child’s life with the court ordering Hamilton to allow this relationship to continue.

Gunn had asked to have the case assigned to a different judge, but the Appellate Division declined to do so, without explanation.

Gunn is represented by Robbie Kaplan and her law firm, Kaplan & Company, as well as lawyers from Morrison Cohen LLP and Chemtob Moss & Forman LLP. Hamilton is represented by lawyers from Cohen Rabin Stine Schumann LLP.  The LGBT Law Association Foundation of Greater New York submitted an amicus brief to the court, with pro bono assistance from Latham & Watkins LLP, not taking sides between the parties but discussing the possible routes open to the court in applying the Brooke S.B. case to this new situation.

 

New York Court of Appeals Overrules Alison D., Sets New Test for Co-Parent Standing

Posted on: August 30th, 2016 by Art Leonard No Comments

The New York Court of Appeals has overruled a quarter-century-old precedent, establishing a new rule for determining when somebody who is neither a biological nor an adoptive parent can seeking custody of a child. The opinion for the court by Judge Sheila Abdus-Salaam in Brooke S.B. v. Elizabeth A. C.C., 2016 N.Y. LEXIS 2668, 2016 Westlaw 4507780 (August 30, 2016), provides that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law Section 70.”

The court was ruling on two cases which originated with similar facts but then developed in different directions. According to the plaintiff’s petition in Brooke V. v. Elizabeth C.C., the women began their relationship in 2006, announced their “engagement” the following year, and then decided to have and raise a child together.  Elizabeth became pregnant through donor insemination and bore a son in June 2009.  Brooke and Elizabeth lived together with the child, sharing parental duties, until their relationship ended in 2010.  Elizabeth permitted Brooke to continue visiting with their son until the relationship between the women deteriorated, and Elizabeth terminated Brooke’s contact in 2013.  Brooke sued for joint custody and visitation rights, but the trial court and the Appellate Division agreed with Elizabeth’s argument that by virtue of the old Court of Appeals ruling, Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), Brooke could not bring the lawsuit because she was neither the biological nor the adoptive parent of the child.  Brooke appealed to the Court of Appeals, asking it to overrule Alison D.

Although the term “parent” is not defined in the Domestic Relations Law provision that authorizes lawsuits for custody and visitation, it was defined by the Court of Appeals in Alison D. to be limited to biological or adoptive parents.  At that time, New York did not allow same-sex marriages or second-parent adoptions, so the ruling effectively precluded a same-sex co-parent from seeking joint custody or visitation after a break-up with the biological parent, in the absence of “extraordinary circumstances” recognized in some other cases decided by the Court of Appeals.  The court specifically ruled that the facts of Alison D. (similar to the Brooke B. case) did not constitute such “extraordinary circumstances.”

In the other case, Estrellita A. v. Jennifer D., the women began their relationship in 2003, registered as domestic partners in 2007, and then agreed to have a child together, with Jennifer becoming pregnant through donor insemination.  They agreed that they would obtain sperm from a Latino donor, matching Estrellita’s ethnicity.  Their daughter was born in November 2008. They lived together as a family for the next three years until the women’s relationship ended and Estrellita moved out in September 2012.  Estrellita continued to have contact with the child with Jennifer’s permission.  In October 2012, Jennifer started a proceeding in Family Court seeking child support payments from Estrellita.  Estrellita responded by petitioning for legal visitation rights.  The Family Court granted Jennifer’s petition for support, finding that “the uncontroverted facts established” that Estrellita was “a parent” of the child, and so could be held liable to pay child support.  However, responding to Estrellita’s petition for visitation, Jennifer argued that the Alison D. precedent should apply to block her claim.  The Family Court disagreed with Jennifer, finding that having alleged that Estrellita was a parent in order to win child support, she could not then turn around and deny that Estrellita was a parent in the visitation case.  The Family Court applied the doctrine of “judicial estoppel” to preclude Jennifer from making this inconsistent argument, and concluded after a hearing that ordering visitation was in the child’s best interest.  The Appellate Division affirmed this ruling, and Jennifer appealed.

Judge Abdus-Salaam’s decision refers repeatedly to the dissenting opinion written by the late Chief Judge Judith Kaye in the Alison D. case.  Judge Kaye emphasized that the court’s narrow conception of parental standing would adversely affect children being raised by unmarried couples, thus defeating the main policy goal of the Domestic Relations Law, which was to make decisions in the best interest of the child.  By adopting this narrow decision, the court cut short legal proceedings before the child’s best interest could even be considered.  Unfortunately, Judge Kaye passed away before learning that her dissent would be vindicated in this new ruling.  However, her dissent from the Court of Appeals’ refusal in Hernandez v. Robles to rule for same-sex marriage rights was vindicated in 2011 when the legislature passed the Marriage Equality Act, and she also lived to see her legal reasoning vindicated by the U.S. Supreme Court in Obergefell v. Hodges, which referred to her Hernandez dissent.

Judge Abdus-Salaam pointed out that Judge Kaye’s arguments in 1991 were even stronger today, with the growth of diverse families and the large numbers of children living in households headed by unmarried adults. She referred to a concurring opinion in a case decided by the court five years ago, in which then Chief Judge Jonathan Lippman and Associate Judge Carmen Ciparick (both since retired from the court) had argued that the Alison D. ruling “had indeed caused the widespread harm to children predicted by Judge Kaye’s dissent,” and asserting that Alison D. was inconsistent with some subsequent rulings.  That concurring opinion called for a “flexible, multi-factored” approach to decide whether there was a parental relationship between a child and an adult outside the narrow definition of Alison D.  In that same case, Judge Robert Smith (also now retired) argued that an appropriate test for parental status would focus on whether “the child is conceived” through donor insemination “by one member of a same-sex couple living together, with the knowledge and consent of the other.”

Acknowledging a body of court precedent recognizing the strong constitutional rights of biological parents, the Court of Appeals decided in its August 30 decision to take a cautious approach. Although some of the parties to the case urged the court to adopt an expansive, one-size-fits-all test for determining the standing of persons who are not biological or adoptive parents, the court decided to focus on the facts of these two cases, in both of which the plaintiffs had alleged that they had an agreement with their same-sex partner about conceiving the child through donor insemination and then jointly raising the child as co-parents.  The court left to another day resolving how to deal with cases where a biological parent later acquires a partner who assumes a parental role towards a child, or where a child is conceived without such an advance agreement.

Another sign of the court’s caution was its decision that the plaintiff would have to show by “clear and convincing evidence” that such an agreement existed. The normal standard of proof in civil litigation is “preponderance of the evidence,” which means the plaintiff would have to show that it was “more likely than not” that such an agreement existed.  Demanding “clear and convincing evidence” was an acknowledgment of the strong constitutional rights that courts have accorded to biological parents in controlling the upbringing of their children, including determining who would have visitation rights.  The U.S. Supreme Court emphasized this several years ago, when it struck down a Washington State statute that allowed anybody, regardless of legal or biological relationships, to petition for visitation upon a showing that it was in the best interest of the child.  Judge Abdus-Salaam emphasized the necessity of showing an agreement, that the biological parent had consented in advance to having a child and raising the child jointly with her partner.

The court decided this case without the participation of Judge Eugene Fahey. Four other members of the court signed Judge Abdus-Salaam’s opinion.  All of these judges were appointed by Governor Andrew Cuomo, a Democrat.  The other member of the court, Judge Eugene Pigott, who was appointed by Governor George Pataki, a Republican, and whose term expires this year, wrote a separate opinion, concurring in the result but disagreeing with the majority about overruling Alison D. v. Virginia M.

Judge Pigott pointed out that the Alison D. decision had been reaffirmed several times by the court, most recently just five years ago in a ruling that praised Alison D. as creating a “bright line test” that avoided unnecessary litigation and uncertainty about parental standing.  In that case, Debra H., the court decided on alternative grounds that a co-parent could seek visitation because the women had entered into a Vermont civil union before the child was born, thus giving equal parental rights under Vermont law to which New York could extend comity.

Judge Pigott argued that since we now have marriage equality and co-parent adoption in New York, and the Marriage Equality Law requires that same-sex marriages get equal legal treatment with different-sex marriages (including application of the presumption that a child born to a married woman is the legal child of her spouse), same-sex couples stand on equal footing with different sex couples and have no need for any modification of the definition of “parent” established by Alison D.   Nonetheless, he joined the court’s disposition of these two cases.  In %Estrellita v. Jennifer%, he agreed that it was appropriate to apply judicial estoppel and hold that Estrellita’s status as a parent had been established in the support proceeding and could not be denied by Jennifer in the visitation proceeding.  In the case of Brooke v. Elizabeth, he would apply the doctrine of “extraordinary circumstances” under which the trial court can exercise equitable powers to allow a non-parent who has an established relationship with a child to seek custody.  The “extraordinary circumstance” here would be one of timing and the changing legal landscape between 2006 and 2013, making it appropriate to allow Brooke to seek joint custody and visitation if she can prove her factual allegations about the women’s relationship.  Judge Pigott apparently sees this case as presenting a transitional problem that is resolved by changes in the law after these women had their children.

In the Brooke case, Susan Sommer of Lambda Legal represents Brooke with co-counsel from Blank Rome LLP and the LGBT Bar Association of Greater New York, Sherry Bjork represents Elizabeth, and Eric Wrubel serves as court-appointed counsel for the child.  In the Estrellita case, Andrew Estes represents Estrellita, Christopher J. Chimeri represents Jennifer, and John Belmonte is appointed counsel for the child.  The court received amicus briefs on behalf of the National Association of Social Workers, the National Center for Lesbian Rights, the New York City and State Bar Associations, the American Academy of Adoption Attorneys, Sanctuary for Families, and Lawyers for Children.   By interesting coincidence, Lambda Legal had represented the plaintiff in Alison D. v. Virginia M. twenty-five years ago, with its then Legal Director, the late Paula Ettelbrick, arguing the case before the Court of Appeals.

Judith Kaye, a champion of lesbian & gay rights, dies at 77

Posted on: January 11th, 2016 by Art Leonard No Comments

Retired Chief Judge Judith Kaye of the New York Court of Appeals died on January 7, 2016, at age 77.  Most accounts of her passing mentioned her dissenting opinion in the case of Hernandez v. Robles, 7 N.Y.3d 338 (2006), the case in which the state’s highest court voted against the claim that same-sex couples have a constitutional right to marry, as one of her most notable opinions, but this was merely the capstone of a long career on the court during which Judge Kaye spoke out eloquently many times in cases important for the rights of gay people and people affected by the AIDS epidemic.

Governor Mario Cuomo appointed Kaye to the court early in his first term in 1983, and then elevated her to the position of Chief Judge in 1993.  She retired due to a state constitutional age limit at the end of 2008.  As of her retirement, she was the longest-serving judge in the Court of Appeals’ history, as well as the longest serving Chief Judge and the first woman to sit on the court and to sit as its chief.  Her appointment was a bit controversial, since she had no prior judicial experience when she was appointed, having worked as a corporate and litigation lawyer in private practice for most of her career, but she quickly assumed a leading role on the court, especially as a defender of civil rights and minority rights.

She joined the majority of the court in 1989 in a historic ruling, Braschi v. Stahl Associates Company, 74 N.Y.2d 201, which for the first time in American law recognized cohabiting same-sex couples as members of each other’s family for purposes of the state’s Rent Control Law, thus protecting the right of a surviving same-sex partner to take over the lease although the apartment had been rented in the name of the deceased partner.  Following up on this important ruling, Judge Kaye wrote the opinion for the court in 1993, Rent Stabilization Association of New York v. Higgins, 83 N.Y.2d 156, which upheld the New York Division of Housing and Community Renewal’s regulations that extended the Braschi ruling to the far larger rent stabilization system.  DHCR had specifically noted the impact of the AIDS epidemic on the housing security of gay men as a justification for the regulation. Judge Kaye rejected the plaintiff’s argument that extending protection to non-traditional families through an administrative regulation was an impermissible legislative act by the agency, and she also rejected the argument that extending this protection had unconstitutionally deprived the owners of property rights.

In 1991, Judge Kaye penned an important dissenting opinion in the case of Alison D. v. Virginia M., 77 N.Y.2d 651, when the court ruled that a lesbian co-parent of a child was a “legal stranger” who could not seek court-ordered visitation rights after separating from the child’s birth mother.  The court rested its ruling on the formal language of New York’s antiquated Domestic Relations Law, which even today adheres to a vision of families that fails to reflect reality.  Kaye criticized the court for exalting legal formality above a central purpose of family law: protecting the best interests of children.  “The majority’s retreat from the courts’ proper role — its tightening of rules that should in visitation petitions, above all, retain the capacity to take the children’s interests into account — compels this dissent,” she wrote.  The judge argued that a provision of the law requiring the court to take the best interest of children into account should take priority, and that the formal legal definition of a parent should not stand in the way in situations where a person had been an actual parent to a child in a relationship that had been fostered and encouraged by the child’s legal parent.

On the same date as the Alison D. ruling, Judge Kaye joined the majority in an important ruling upholding a determination by the state’s Public Health Council not to list HIV infection as a condition requiring mandatory testing and contact tracing.  The Council was concerned that such a listing would prevent infected persons from cooperating with public health officials and impose a barrier to addressing the HIV epidemic.  The New York State Society of Surgeons had challenged this decision, but the court held that the Council’s ruling had a rational basis and would not be second-guessed by the court.  N.Y. State Society of Surgeons v. Axelrod, 77 N.Y.2d 677 (1991).

Judge Kaye wrote for the court in 1995 in a sharply-divided 4-3 ruling, Matter of Jacob, 86 N.Y.2d 651, creatively interpreting the state’s antiquated adoption statute so as to allow for second-parent adoptions.  This was a crucially important follow-up to the Alison D. ruling.  Since the Court of Appeals considered same-sex coparents to be “legal strangers,” the only way they could protect the relationship with their children would be if they could adopt them, with the permission of their partner.  Literally interpreted, the adoption statute would require that the child’s birth parent relinquish her parental rights upon adoption by a person to whom she was not married.  But Judge Kaye found that this would violate the statute’s overall purpose: the child’s best interest.  “This policy would certainly be advanced in situations like those presented here by allowing the two adults who actually function as a child’s parents to become the child’s legal parents,” she wrote.

After listing all the practical reasons why allowing a second-parent adoption would make sense, Judge Kaye cut to the heart of the matter.  “Even more important,” she wrote, “is the emotional security of knowing that in the event of the biological parent’s death or disability, the other parent will have presumptive custody, and the children’s relationship with their parents, siblings and other relatives will continue should the coparents separate.  Indeed, viewed from the children’s perspective, permitting the adoptions allows the children to achieve a measure of permanency with both parent figures and voids the sort of disruptive visitation battle we faced in Matter of Alison D. v. Virginia M.”

A year later, Judge Kaye provided the crucial vote in a 4-3 decision holding that a dentist’s office is a place of public accommodation, so a dentist would be in violation of the Human Rights Law for refusing treatment in his office to patients the dentist knew or suspected to have HIV infection.  Cahill v. Rosa, 89 N.Y.2d 14 (1996).

In 2001, Judge Kaye joined with the majority in Levin v. Yeshiva University, 96 N.Y.2d 484, ruling that the trial court had wrongly dismissed a sexual orientation discrimination complaint under the New York City Human Rights Law brought against Yeshiva’s Albert Einstein College of Medicine for refusing to allow two lesbian medical students to live with their same-sex partners in housing provided near the campus for married students.  The case arose before the state legislature had added sexual orientation to the state’s Human Rights Law, and a majority of the court rejected the plaintiffs’ argument that the College had violated the state law’s ban on marital status discrimination, but the court accepted the argument that because the state did not let same-sex couples marry, it was discriminatory on grounds of sexual orientation covered by the city law to refuse an important benefit to same-sex couples.  Judge Kaye would have gone farther than the court, however.  In a partial dissent, she argued that the marital status complaint should not be dismissed either, finding that the court’s earlier recognition in Braschi that same-sex partners could constitute a family should be taken into account.  “At the very least,” she wrote, “it is a question of fact whether plaintiffs’ life partners qualify as members of their ‘immediate families.’  If they do, the State and City Human Rights Laws prohibit [the medical school] from denying them partner housing merely because they are unmarried.  Since discovery and fact finding on this issue are necessary, the lower courts improvidently granted [the school’s] motion to dismiss.”  She pointed out that prior cases interpreted the “marital status” provision in the state law to ban discrimination against somebody because they are “single, married, divorced, separated or the like.”  In this case, she said, the plaintiffs were alleging that they suffered discrimination because they were not married, an obvious violation of the ban on marital status discrimination.

Finally, of course, there is Judge Kaye’s dissent in Hernandez, in which she argued on behalf of herself and Judge Carmen Ciparick that same-sex couples did have a right to marry.  “This State has a proud tradition of affording equal rights to all New Yorkers,” she wrote.  “Sadly, the Court today retreats from that proud tradition.”  After noting the long list of federal and state cases holding that “marriage is a fundamental constitutional right,” she wrote that “fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights.  Indeed, in recasting plaintiffs’ invocation of their fundamental right to marry as a request for recognition of a ‘new’ right to same-sex marriage, the Court misapprehends the nature of the liberty interest at stake.”  She pointed to the U.S. Supreme Court’s then-recent decision in Lawrence v. Texas, striking down a state sodomy law and overruling Bowers v. Hardwick, the 1986 decision upholding Georgia’s sodomy law.  In Lawrence, the Court criticized the Bowers decision as failing to apprehend the nature of the liberty interest at stake.  “The same failure is evident here,” wrote Judge Kaye. “An asserted liberty interest is not to be characterized so narrowly as to make inevitable the conclusion that the claimed right could not be fundamental because historically it has been denied to those who now seek to exercise it.”

“Simply put,” she asserted, “fundamental rights are fundamental rights.  They are not defined in terms of who is entitled to exercise them.”  Continuing, she wrote, “The long duration of a constitutional wrong cannot justify its perpetuation, no matter how strongly tradition or public sentiment might support it.”

Judge Kaye contended that “homosexuals meet the constitutional definition of a suspect class” for purposes of equal protection rights, which would mean that “any classification discriminating on the basis of sexual orientation must be narrowly tailored to meet a compelling state interest.”  She also pointed out that the same-sex marriage ban discriminated on the basis of sex, which would require the court to apply “heightened scrutiny,” under which the policy would be struck down unless it was “substantially related to the achievement of important governmental objectives.”  She concluded that the ban could not survive either test, much less the “rational basis test” that would otherwise apply. She rejected the court’s conclusion that the issue should be left up to the legislature, stating that “this Court cannot avoid its obligation to remedy constitutional violations in the hope that the Legislature might some day render the question presented academic.”  She concluded, “I am confident that future generations will look back on today’s decision as an unfortunate misstep.”

Judge Kaye’s confidence was vindicated over the past several years as scores of courts, many of them citing her dissenting opinion, declared state bans on same-sex marriage unconstitutional, culminating in the Supreme Court’s Obergefell ruling on June 26, 2015.  After New York’s legislature enacted marriage equality in 2011, Judge Kaye happily performed same-sex marriage ceremonies.  Perhaps not so coincidentally, the lead attorney in U.S. v. Windsor, the case that struck down the federal ban on recognizing same-sex marriages in 2013, was Roberta Kaplan, a former law clerk for Judge Kaye whose book about the case describes the important role Judge Kaye played for her as a mentor.  The judge reportedly had several openly-gay clerks, some of whom have themselves become judges.