KLLC Speaks

One day in early 1994, I got a phone from a lawyer I knew in Boston. He told me a rather sad story. He had been approached by a prospective client, a Harvard-trained physician who worked in Cambridge but lived in New York City, and whose life partner, with whom he had lived for 25 years, had recently died. The circumstances of the death were disturbing. His partner, who I shall call here Grant, had been an architect, practicing in New York City. Grant had been working for some years on the renovation of a cathedral in the Gramercy Park area, owned by the Armenian Church. He had gone to the cathedral to inspect the progress of the renovation on a day that a non-governmental organization was holding a conference there. Lunch had been catered by a well-known New York-based catering company. Grant was invited to the lunch together some of the church officials. He ate a sandwich. In the middle of the following night, he was woken by acute stomach pains. He suffered – unaware that he had contracted food poisoning from eating food tainted by salmonella bacteria – for several days, never seeking medical treatment. Although it was rapidly apparent to the conference attendees that the food was tainted – the catering company notified registered attendees – and many were treated at New York hospitals, Grant was not advised. He died, at home and alone, in the early morning hours, a few days later, apparently from massive sepsis.

The question was what could we do for the survivor? Of course, New York then, almost twenty years ago, did not permit same-sex couples to marry; indeed, no state did, and the right to marry for gay men and lesbians seemed impossibly far off. How then could he recover wrongful death damages? I recruited two of the associates in my firm, whose deeply held convictions about equality before the law were admirable, who were eager to help, and whose zeal and creative constitutional thinking added immeasurably to mine. While the gay rights movement was no longer in its infancy, it had not then accomplished much in the courts, and there were few, if any, precedents on which we could rely. Generally, at the time, the courts were simply hostile to such claims. We did the research though, and concluded that the New York Wrongful Death Statute, Estates, Powers & Trusts Law (EPTL) § 5.4-1, which provided a cause of action to a surviving, lawfully married spouse or to a blood relation only, could be attacked facially by arguing that it drew an invidious classification between heterosexuals in spousal-type relationships, who were permitted to elect marriage, and gay men and lesbians in similar relationships, who were not. Our client, the survivor, not only wanted damages; he wanted to vindicate his and his partner’s rights, even though they had been denied during his partner’s life, and he directed us to sue. We agreed, proudly, to do so.

We brought suit in New York State court under EPTL § 5.4-1. We considered whether we could bring the case in federal court, but we lacked diversity of citizenship and the mere presence of the constitutional issue did not afford a basis for subject matter jurisdiction. Contrary to the publicity that surrounds these challenges today, and that has surrounded them over the past decade of the growing movement for equal rights for gays, lesbians, bisexuals and transgender people, our suit was met, first, with resounding silence, and then with the condemnation of defense counsel, who argued, variously, that our theory was “ridiculous,” that we were urging usurpation of the legislative prerogative, and, to add insult to injury, that we could never prove that the tainted sandwich was the proximate cause of our client’s decedent’s death. As if this opposition were not enough, shortly after filing suit we received a phone call from the Lambda Legal Defense Fund (now Lambda Legal), which asked us for a meeting (Lambda was the leading gay and lesbian rights organization in those days, as it is now). Of course, we said yes, and when we met were told that we were bound to lose, and that our loss would not only reflect badly on the movement but would also set back their cause. I was told that as a straight man I could not truly understand the issues involved or provide proper representation. Lambda asked us to drop the suit. In the end, although I disagreed vigorously with the arguments Lambda had advanced, I told them simply that I had a client to represent, and that he insisted, as he had, that we go forward.

Predictably, we lost in New York County Supreme. Less predictably, the Justice to whom the case was assigned refused to see the case even as presenting a constitutional challenge. Instead, the court held that EPTL § 5.4-1 does not discriminate against same-sex partners, and thus did not violate the Equal Protection Clause, because the statute treated same-sex partners identically to unmarried opposite-sex partners. It reasoned that the statute drew no invidious classification because recovery was prohibited to both these classes, ignoring the stark difference between heterosexual couples who were permitted to marry, and same-sex couples who were not. The court granted summary judgment dismissing the wrongful death claim.

We appealed as of right to the Appellate Division, First Department. In the interim, in 1996, the Supreme Court of the United States had decided Romer v. Evans, a case involving Amendment 2 to the Colorado state constitution, adopted by referendum, that “prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect the . . . class [of] . . . homosexual persons or gays and lesbians. ” In other words, it sought to exclude by popular mandate gay men and lesbians from protections and benefits otherwise provided to all Colorado citizens. Justice Kennedy wrote for the Court that the amendment “confounded judicial review,” and noted that the resulting “disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” Indeed, he went so far as to say that “[i]t is not within our constitutional tradition to enact laws of this sort,” and observed that “[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “ He stated that “[t]he guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.” For the Court, Justice Kennedy held:

“[w]e must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause . . . .”

Our case was not quite so dramatic. But we felt, equally, that in excluding gay men and lesbians from the protection of the Wrongful Death Statute, New York law too made “a class of people a stranger to its laws,” and thus emboldened, we pressed our appeal. Romer gave us reason to hope that the Appellate Division might be more receptive than the motion court. We presented the case as one about gays’ exclusion from basic civil and legal rights. We argued that the case called on the court to scrutinize “an indirect legislative means – denial of the right to wrongful death benefits to gay life partners who could not have legally married – that has the effect of unconstitutionally burdening the rights of gay men and lesbians in their economic and social lives.” (In a prophetic aside, we noted that it was important to realize that the case was not about the right of gay men and lesbians to marry, and commented that “[t]he constitutional questions that the marriage laws raise must be left to another day.”) We asserted not only that the classification drawn by the statute could not pass rigorous or “strict scrutiny,” but also that it failed even “rational basis” scrutiny, as the classification was not rationally related to the purposes of the wrongful death statute – to provide adequate compensation to those who were dependent on the decedent’s for economic support, to assure that tortfeasors pay for their wrongful conduct, and to eliminate or reduce reliance by persons injured on the public dole. Finally, we argued that the case could not principally be distinguished from the Supreme Court’s 1968 holding in Levy v. Louisiana, a decision from the heyday of the Warren Court and the civil rights era written by Justice Douglas, in which the Court held a Louisiana statutory scheme that permitted legitimate, but not illegitimate, children to recover for the wrongful death of a parent void as violative of the Equal Protection Clause. We were proud of our brief, proud that we had advanced inclusive and life-affirming arguments in the face of a personal tragedy compounded, at least to that point, by the law’s lack both of compassion and comprehension.

The argument in the First Department was interesting, to say the least. Not because of the engagement of the bench, because they did not appear all that engaged – in fact they appears a bit embarrassed, but because my team and I felt that we had been courageous in pressing the issue on appeal, and even in suggesting these arguments, radical as they then were, to the court in the setting, at one time both pedestrian and compelling, in which they arose. Frankly, I had the impression that the court simply did not know how to react at argument; that it lacked the vocabulary to address these serious issues. But when we concluded, something happened that vindicated our view. Most of us know the feeling of retreating from the bench after argument in an appellate court, sometimes with downcast eyes avoiding the gaze of the bar waiting argument, sometimes triumphant and smiling, sometimes frowning and troubled. But this day, I had no chance to present my own face to the world, because as I retreated down the aisle, lawyers on both sides reached out to shake my hand or pat my shoulder, all repeating that it had been a terrific argument and how great it was that we had brought it to the First Department. The congratulations of the bar more than made up for the silence of the bench.

By my recollection, we waited more than nine months for the decision to come down. We lost. But we lost 4-1, with a brave dissent from then-Presiding Justice Rosenberger. Regretfully, the majority of the court adopted the reasoning of motion term, refusing to acknowledge the disability that the prohibition against same-sex marriage worked in the context of a wrongful death claim by the survivor of a long-term relationship in all respects equivalent to marriage. To his credit, Justice Rosenberger felt, and wrote, otherwise. In rejecting motion term’s argument and that of the majority of his brethren, and voting to reverse, he noted that the comparison between unmarried heterosexuals and unmarried homosexuals “was not the appropriate comparison.” He observed that unmarried same-sex couples “who legally cannot marry, are not similarly situated to unmarried heterosexuals who have the option to marry and obtain the protection of the [Wrongful Death Statute], yet choose not to do so.” Citing Levy v. Louisiana, Justice Rosenberger argued that “[i]f the Legislature does not allow homosexual couples to marry, . . . it cannot make marriage a condition precedent to a statutory right that is available to heterosexuals, especially where sexual preference is irrelevant to the purposes of the statute.” We considered an appeal to the Court of Appeals, but were constrained by factors I cannot explore here. In the end, having pressed this survivor claim as far as we could, our client authorized us to abandon the case, and we did.

Is there a lesson for today? Is there a lesson for the younger members of the bar? Is there a lesson for us who have witnessed the remarkable change of attitude among the people of our country – and in the judiciary and legislatures – toward same-sex marriage? I suppose there is a predictable one – it is the highest calling of this profession to strive for greater rights in pursuance of the broad grants in our constitution; and it is the fabric of our calling to test, always, accepted limits where our clients require it. I, for one, remember with pride that we took on this battle, even though we lost, even though we were virtually guaranteed to lose, because I remain convinced that we changed a few minds, and that those changed minds later changed others.
And so, today, we await the rulings of the Supreme Court . . . .