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.