[news] No Standing for Gays Say Judges Sitting

There are probably thirty law review articles about this (and this was the moot court case about two years ago), but here's the scoop anyway. A gay couple had a Vermont civil union. They moved to New York, and one of them died (presumably in a hospital). His partner went to court to sue for wrongful death.

Did he have standing?

One judge said yes, and it was appealed. The Appellate Division said no--but it was split 3-2. I'll have to read the opinions tomorrow--I'm terribly tired.

[EDIT]
After skimming the case, Langam v. St. Vincent's Hosp. of New York, 2005 WL 2542658 (N.Y.A.D. Oct. 10, 2005), here is the gist of the argument, since I know no one else is going to read it.

Majority:
The court sticks to strict statutory interpretation of the word "spouse," and dodges all equal protection issues by citing a 1971 Minnesota case, Baker v. Nelson, 291 Minn. 310 (1971), and dicta in Lawrence v. Texas. The Minnesota case says that (1) same-sex marriage is not supported by Minnesota statutes; (2) denying same-sex marriage does not offend due process; and (3) denying same-sex marriage does not offend equal protection. From Lawrence, the court specifically quotes O'Connor's concurrence, which states "... other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group" (Lawrence, at 585).

The court also cites its own Matter of Cooper, 187 A.D.2d 128 (NYAD 1993), which says that "purported [homosexual] marriages do not give rise to any rights ... pursuant to ... EPTL 5.1-1 [and that] [n]o constitutional rights have been abrogated or violated in so holding."

And finally, the court says that Vermont itself did not intend to equate civil unions with marriage, and that the decedent failed to even indicate he was married: he knew it wasn't a marriage. It then punts to the legislature, by saying "any contrary decision" to recognize this union as sufficient for spousal standing "would constitute a usurpation of powers expressly reserved by our Constitution to the Legislature." Reversed.

Dissent.
Judge Fisher says this case is not about "marriage." It is about what qualifies as a distributee under EPTL 5.1-1. And he goes through three or four arguments that he does not find convincing.

What he does find convincing, however, is the EP attack. Instead of brushing it aside to a Minnesota case (which was decided long before civil unions even existed), he states that no one is claiming this civil union is a marriage. The claim is that similarly situated individuals are being treated differently, and that there is no rational basis for this difference (textbook EP reasoning).

The similarly situated individuals are the married people and the civilly unioned folks. Both owe to one another a "legal[ly] enforceable obligation of mutual support," and therefore the death of one spouse causes economic injury to the other because "it results in the loss of an expectancy of future support created and guaranteed by law."

He then moves on to deciding whether there is a rational relationship between the state's interest in promoting marriage (stable families, tradition, etc.) and its refusal to allow standing for someone who has been deprived of guaranteed economic support through wrongful death. He points to two Supreme Court cases (not Minnesota cases): Levy v. Johnson, 391 US 68; and Glona v. American Guar. & Liab. Ins. Co., 391 US 73. Both cases were the birthplace of intermediate scrutiny for laws involving legitimacy (link to lii discussion), and both say that illegitimate children have as much standing in wrongful death cases as legitimate children: the state's interest in promoting legitimacy has no bearing on its interest in compensating victims for a tortfeasor's misdeeds.

He sees the same EP problem here. Promoting traditional families has no rational relationship to wrongful death standing.

[EDIT2]

Me.
What I think folks will say is "of course it has a rational relationship!" The link is that we don't want to create legal structures that encourage people to form same-sex relationships. We want the ease and pleasantry of married life to be relegated to those who follow our plan: man-woman marriage.

My second thought involves whether intermediate scrutiny is appropriate for gay rights cases. I don't know. Ideally, I want laws that discriminate on the basis of the respective genders of the parties (1) to be subjected to rational basis review, and (2) to fail.

(link to article)