Hernandez v. Robles (26 A.D.3d 98, 2005)

OPINION OF THE COURT

Williams, J.

Plaintiff same-sex couples seek to enter into civil marriage in New York City. Defendant Victor Robles, the City Clerk of the City of New York, administers the Marriage License Bureau and is responsible for issuing and recording marriage licenses and solemnizing civil marriages in New York City. In March 2004, each of the plaintiff couples applied for a marriage license at defendant’s office. Their applications were denied on the ground that “New York State law does not authorize this office to grant marriage licenses to same-sex couples.”

Plaintiffs brought an action in Supreme Court, New York County seeking declaratory and injunctive relief arguing that the Domestic Relations Law denies them their rights to equal protection and due process as guaranteed by the Constitution of the State of New York. They alleged that aside from the fact that they are same-sex couples, they are otherwise legally qualified to marry under New York State law. Plaintiffs eventually moved, and defendant cross-moved, for summary judgment. The court granted the motion and denied the cross motion, holding that the Domestic Relations Law violated the equal protection and due process provisions of the New York State Constitution, and that the words “husband,” “wife,” “bride,” and “groom” as used in the relevant sections of the Domestic Relations Law should be construed to apply equally to either men or women. The court permanently enjoined defendant from denying a marriage license to any couple solely on the ground that the couple is comprised of persons of the same sex.

The court agreed with the New York State Attorney General and the Corporation Counsel of the City of New York that the Domestic Relations Law does not and was not intended to authorize same-sex marriage. It reasoned, among other things, that the fundamental right to marry, as recognized by federal and New York State due process case law, is both a liberty right and a privacy right and includes the right to choose whom one marries. Thus, the appropriate test of the Domestic Relations Law’s constitutionality in this regard should be strict scrutiny, which requires that the State demonstrate a compelling state interest for the statutory classification and that the legislation be narrowly tailored to meet that interest. The court found that the asserted state interests, fostering traditional heterosexual marriage and avoiding problems raised by other jurisdictions’ failure to grant comity to same-sex marriages, did not meet the test. It stated that the issue as posed by defendant, whether plaintiffs had a fundamental right to same-sex marriage, was a misstatement of the issue according to the United States Supreme Court in Lawrence v Texas (539 US 558 [2003]).

The court also found that the Domestic Relations Law violated the Equal Protection Clause of the State Constitution in that it discriminates against plaintiffs on the basis of sexual orientation and rationally serves no legitimate state purpose. Finally, the court rejected the argument that the issue of whether to permit same-sex marriage is one in which the courts should defer to the Legislature, finding that it was well within its mandate in ruling on the statute’s constitutionality and that the United States Supreme Court rejected the same argument in Loving v Virginia (388 US 1 [1967]), where it struck down an antimiscegenation law.

We find that the motion court erred in granting plaintiffs summary judgment and finding the provisions of the Domestic Relations Law unconstitutional to the extent that they do not permit same-sex marriage. However, we find it even more troubling that the court, upon determining the statute to be unconstitutional, proceeded to rewrite it and purportedly create a new constitutional right, an act that exceeded the court’s constitutional mandate and usurped that of the Legislature.

As we stated in Raum v Restaurant Assoc. (252 AD2d 369, 370 [1998], appeal dismissed 92 NY2d 946 [1998]), “[s]ince it is not within the judicial province to redefine terms given clear meaning in a statute, [a] plaintiff’s sole recourse [in such instance] lies in legislative action” (citation omitted; see also Greenwald v H & P 29th St. Assoc., 241 AD2d 307 [1997]; Matter of Cooper, 187 AD2d 128 [1993], appeal dismissed 82 NY2d 801 [1993]). Here, the relevant provisions of the Domestic Relations Law, despite the absence of an express prohibition against same-sex marriage, clearly do not contemplate such unions (2004 Ops Atty Gen No. I 2004-1, at 1005 [“the inclusion in the DRL of gender-specific terms to describe parties to a marriage, as well as the historical context of its enactment, indicates that the Legislature did not intend to authorize same-sex marriage”]). Generally, in such circumstances, “courts [should not] correct supposed . . . omissions or defects in legislation” (McKinney's Cons Laws of NY, Book 1, Statutes § 73, at 148 [1971]).

The role of the courts is “to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes” (Goodridge v Department of Pub. Health, 440 Mass 309, 356, 798 NE2d 941, 978 [2003] [Spina, J., dissenting]). Deprivation of legislative authority, by judicial fiat, to make important, controversial policy decisions prolongs divisiveness and defers settlement of the issue; it is a miscarriage of the political process involved in considering such a policy change (see Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 NYU L Rev 1185, 1205-1208 [1992] [urging a measured approach in judicial decisionmaking and citing in contrast the Supreme Court’s Roe v Wade decision (410 US 113 [1973]), which prematurely ended the political process for legislative change on the abortion issue and resulted in protracted controversy]).

The power to regulate marriage lies with the Legislature, not the Judiciary. “[T]he Legislature in dealing with the subject of marriage has plenary power” (Fearon v Treanor, 272 NY 268, 271 [1936], appeal dismissed 301 US 667 [1937]). Hence,

“Kit is the Legislature that is the appropriate body to engage in the studied debate that must necessarily precede the formulation of social policy with respect to same-sex marriage and the decision to extend any or all rights and benefits associated with marriage to same-sex couples, and, in turn, the amendment or expansion of the laws presently governing the institution of marriage in New York” (Matter of Shields v Madigan, 5 Misc 3d 901, 908 [2004]).

“Rights are defined by the Legislature, not the Judiciary. Plaintiffs must take their request for an alteration in the definition of marriage to the elected officials responsible for drafting the marriage statutes. Judicial intervention is warranted only where the Legislature has placed an unreasonable restriction on access to the legislatively defined right” (Lewis v Harris, 2003 WL 23191114, *20 [NJ Super Ct, Law Div, Nov. 5, 2003], affd 378 NJ Super 168, 875 A2d 259 [2005]).

The definition of marriage in the Domestic Relations Law expresses an important, long-recognized public policy supporting, among other things, procreation, child welfare and social stability—all legitimate state interests. The motion court’s revision of statutory language impermissibly replaces the legislative intent with that of the court. Other New York courts that have ruled recently on the same-sex marriage issue have upheld the statute (see e.g. Seymour v Holcomb, 7 Misc 3d 530 [2005]; Matter of Shields v Madigan, 5 Misc 3d 901 [2004]).

The Domestic Relations Law provisions regarding marriage do not violate the due process and equal protection provisions of the New York State Constitution (NY Const, art I, §§ 6, 11). Marriage, defined as the union between one man and one woman, is based upon important public policy considerations and has been recognized as a fundamental constitutional right (Zablocki v Redhail, 434 US 374, 383 [1978]; Skinner v Oklahoma ex rel. Williamson, 316 US 535, 541 [1942]; see also Washington v Glucksberg, 521 US 702, 720 [1997]; Griswold v Connecticut, 381 US 479, 486 [1965]). These considerations are based on innate, complementary, procreative roles, a function of biology, not mere legal rights. “[T]he reasons justifying the civil marriage laws are inextricably linked to the fact that human sexual intercourse between a man and a woman frequently results in pregnancy and childbirth” (Goodridge, 440 Mass at 357 n 1, 798 NE2d at 979 n 1 [Sosman, J., dissenting]).

The legislative policy rationale is that society and government have a strong interest in fostering heterosexual marriage as the social institution that best forges a linkage between sex, procreation and child rearing. It systematically regulates heterosexual behavior, brings order to the resulting procreation and ensures a stable family structure for the rearing, education and socialization of children (Goodridge, 440 Mass at 381, 798 NE2d at 995 [Cordy, J., dissenting]). Marriage promotes sharing of resources between men, women and the children that they procreate; provides a basis for the legal and factual assumption that a man is the father of his wife’s child via the legal presumption of paternity plus the marital expectations of monogamy and fidelity; and creates and develops a relationship between parents and child based on real, everyday ties. It is based on the presumption that the optimal situation for child rearing is having both biological parents present in a committed, socially esteemed relationship (Reno v Flores, 507 US 292, 310 [1993] [marriage allows the state to express a preference for biological parents “whom our society . . . (has) always presumed to be the preferred and primary custodians of their minor children”]). The law assumes that a marriage will produce children and affords benefits based on that assumption. It sets up heterosexual marriage as the cultural, social and legal ideal in an effort to discourage unmarried childbearing and to encourage sufficient marital childbearing to sustain the population and society; the entire society, even those who do not marry, depends on a healthy marriage culture for this latter critical, but presently undervalued, benefit. Marriage laws are not primarily about adult needs for official recognition and support, but about the well-being of children and society, and such preference constitutes a rational policy decision. Thus, society and government have reasonable, important interests in encouraging heterosexnal couples to accept the recognition and regulation of marriage.

Plaintiffs’ challenge to the statute on equal protection grounds is without merit. They concede that the Domestic Relations Law marriage provisions do not discriminate on the basis of gender; the Domestic Relations Law treats the members of both genders exactly the same in terms of whom they may marry (Seymour v Holcomb, 7 Misc 3d at 534; Matter of Shields v Madigan, 5 Misc 3d at 906). The statute does create a classification on the basis of sexual orientation, but in a manner permissible under the applicable equal protection analysis, that is, the rational basis test (see Romer v Evans, 517 US 620, 631 [1996]; Matter of Valentine v American Airlines, 17 AD3d 38, 42 [2005]; Cooper, 187 AD2d at 133-134). Sexual orientation is not subject to one of the stricter equal protection analyses (Romer, 517 US at 631-633; Matter of Valentine, 17 AD3d at 42). In rational basis analysis, the statute receives a strong presumption of validity and the burden is on claimant to show otherwise; there is no burden on the state to produce evidence sustaining the rationality of the statute (Heller v Doe, 509 US 312, 319-320 [1993]; Affronti v Crosson, 95 NY2d 713, 719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001). Justice O’Connor, concurring in Lawrence v Texas (539 US at 585), opines that a statute providing for the traditional institution of marriage could withstand rational basis analysis, and recent New York decisions, among others, have so held (see e.g. Seymour v Holcomb, 7 Misc 3d at 535-536; Matter of Shields v Madigan, 5 Misc 3d at 907).

Plaintiffs fail to carry their burden of demonstrating “that the legislative facts on which the [statutory] classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker” (Affronti v Crosson, supra at 719 [citation and internal quotation marks omitted]). They do not dispute the Legislature’s assumptions concerning the advantages of encouraging the rearing of children by both biological parents. Their argument that the statute does not have a rational basis because it allows heterosexual couples unable or unwilling to have children to marry ignores precedent holding that the classification created by a statute need not be perfect (see Massachusetts Bd. of Retirement v Murgia, 427 US 307, 314 [1976]; Matter of Davis, 57 NY2d 382, 388 [1982]). Nor does it lack rational basis because it addresses one legitimate policy interest or problem (regulating heterosexual marriage) over others even if they are related to the same subject. The legislative process involves setting priorities, making difficult decisions, making imperfect decisions and approaching problems incrementally, and rational basis analysis does not require that a legislature take the ideal or best approach (Heller v Doe, 509 US at 321; FCC v Beach Communications, Inc., 508 US 307, 315-316 [1993]). Finally, there is no requirement in rational basis equal protection analysis that the government interest be furthered by both those included in the statutory classification and by those excluded from it (see People v Whidden, 51 NY2d 457, 461 [1980], appeal dismissed for want of a substantial federal question 454 US 803 [1981]).

Plaintiffs’ claimed reliance on the fundamental right to marry is without merit. The United States Supreme Court recognizes traditional, heterosexual marriage as a fundamental right pursuant to both equal protection and substantive due process liberty and privacy doctrines (Washington v Glucksberg, 521 US at 720; Zablocki v Redhail, 434 US at 383; Loving v Virginia, 388 US at 12; Griswold v Connecticut, 381 US at 486; Skinner v Oklahoma ex rel. Williamson, 316 US at 541). New York apparently recognizes a parallel right (see e.g. Levin v Yeshiva Univ., 96 NY2d 484, 500 [2001] [G.B. Smith, J., concurring]; Matter of Doe v Coughlin, 71 NY2d 48, 52-53 [1987], cert denied 488 US 879 [1988]; People v Onofre, 51 NY2d 476, 486 [1980], cert denied 451 US 987 [1981]; Cooper v Morin, 49 NY2d 69, 80 [1979], cert denied sub nom. Lombard v Cooper, 446 US 984 [1980]; Matter of Mary of Oakknoll v Coughlin, 101 AD2d 931, 932 [1984]). Fundamental rights are defined as those “which are, objectively, ‘deeply rooted in this Nation’s history and tradition’ . . . and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed’ ” (Washington, 521 US at 720-721). Courts are admonished to “ ‘exercise the utmost care’ in conferring fundamental-right status on a newly asserted interest lest we transform the liberty protected by due process into judicial policy preferences rather than principles born of public debate and legislative action” (Standhardt v Superior Ct. ex rel. County of Maricopa, 206 Ariz 276, 284, 76 P3d 451, 459 [2003], quoting Washington, 521 US at 720). No appellate court, other than the Goodridge court, has held that a fundamental right exists to same-sex marriage (but see e.g. Dean v District of Columbia, 653 A2d 307, 333 [1995] [same-sex marriage not a fundamental right protected by the Due Process Clause]; Standhardt, 206 Ariz at 284, 76 P3d at 459 [“same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state nor are they implicit in the concept of ordered liberty”]; Lawrence v Texas, 539 US at 585 [O’Connor, J., concurring] [opines that on a same-sex bias challenge traditional marriage statute could withstand rational basis analysis]). Thus, we reject plaintiffs’ argument in support of a fundamental right. Their reliance on Loving v Virginia (388 US 1 [1967]) is misplaced, since that Court held that the intent of the antimiscegenation statute directly conflicted with the fundamental right to be free from racial discrimination based on the Equal Protection Clause, as well as with the fundamental right to traditional marriage based on substantive due process (Loving at 11-12; see also Perez v Sharp, 32 Cal 2d 711, 198 P2d 17 [1948] [California antimiscegenation statute violated the Equal Protection Clause]).

The motion court’s decision, by redefining traditional marriage, usurped the Legislature’s mandated role to make policy decisions as to which type of family unit works best for society and therefore should be encouraged with benefits and other preferences. It effectively dismantled the legislative construct and treats all intimate and dependent relationships as equal. This is an impermissible intrusion by the Judiciary upon the legislative domain. The question of what statutory recognition, if any, same-sex couples should receive in New York is one that must be referred to the Legislature in accordance with its historical role.

Having ruled as it did, the motion court should have, as the Vermont and Massachusetts courts did in Baker v State (170 Vt 194, 744 A2d 864 [1999]) and Goodridge v Department of Pub. Health (440 Mass 309, 798 NE2d 941 [2003]), respectively, suspended the effect of its decision for a reasonable period of time and retained jurisdiction giving the Legislature the opportunity to consider and enact legislation consistent with the alleged constitutional mandate. “A sudden change in the marriage laws or the statutory benefits traditionally incidental to marriage may have disruptive and unforeseen consequences” (Baker, 170 Vt at 225, 744 A2d at 887). “The implementation by the Vermont Legislature of a constitutional right expounded by this Court pursuant to the Vermont Constitution ... is not an abdication of judicial duty, it is the fulfillment of constitutional responsibility” (Baker, 170 Vt at 228, 744 A2d at 888).

Accordingly, the order and judgment of the Supreme Court, New York County (Doris Ling-Cohan, J.), entered February 7, 2005, which granted plaintiffs’ motion for summary judgment; denied defendant’s cross motion for summary judgment; adjudged and declared that the Domestic Relations Law violates article I, §§ 6 and 11 of the New York State Constitution; adjudged and declared that the words “husband,” “wife,” “groom,” and “bride,” as they appear in the relevant sections of the Domestic Relations Law, are and shall be construed to apply equally to either men or women; and ordered that defendant be permanently enjoined from denying a marriage license to any couple solely on the ground that the two persons in that couple are of the same sex, should be reversed, on the law, without costs, the judgment vacated, plaintiffs’ motion for summary judgment denied, defendant’s cross motion for summary judgment granted and a declaration issued in defendant’s favor that Domestic Relations Law §§ 10, 12 and 15 (1) (a), and the other relevant sections of the Domestic Relations Law at issue, are constitutional and valid.

Catterson, J. (concurring).

I concur with the majority that the question of same-sex unions is the province of the Legislature rather than the Judiciary. The issue presents no opportunity for the development of the common law in New York but nonetheless it poses significant constitutional questions. I write separately to amplify this constitutional dimension.

Cardozo observed that:

“It is a question of degree whether the law which takes my property and limits my conduct, impairs my liberty unduly. So also the duty of a judge becomes itself a question of degree, and he is a useful judge or a poor one as he estimates the measure accurately or loosely. He must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs, his sense of right, and all the rest, and adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales.” (Benjamin N. Cardozo, The Nature of the Judicial Process, at 161-162 [1921].)

The scales are historically unbalanced at the start of any examination of same-sex unions by the weight of history, custom, and significant United States Supreme Court precedent favoring the defendant.

The common-law concept of marriage as a union between a man and a woman has deep roots in American jurisprudence. More than a century ago in Murphy v Ramsey (114 US 15 [1885]), the Supreme Court held that polygamists and bigamists could be denied the right to vote in the Territory of Utah. Although the language employed by the Court may appear anachronistic, the sentiments expressed the ideals of the age and accurately reflected the common law concerning matrimony.

“[N]o legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take [its] rank as one of the co-ordinate states of the Union, than that which seeks to establish it on the basis of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony." (Id. at 45 [emphasis added].)

The concept of marriage has traditionally been accepted by courts throughout the United States as the union of a man and a woman. Any change in that frequently articulated heterosexual construct would be a revolution in the law rather than evolution.

In an effort to avoid the revolutionary nature of the concept of same-sex unions, the dissent, the plaintiffs, various amici, and the motion court have consistently characterized same sex unions as impheating the right to marry which is a fundamental right; and have argued that any infringement of that right triggers a strict scrutiny analysis. In my view, this analysis is over-broad and flawed. In determining whether an asserted liberty interest or right should be regarded as “fundamental” for purposes of substantive due process analysis under the Fourteenth Amendment, the Supreme Court has consistently applied a two-pronged test. First, there must be a “careful description” of the asserted fundamental liberty interest. (Washington v Glucksberg, 521 US 702, 721 [1997] [internal quotation marks omitted].) Second, the interest, so described, must be firmly rooted in the “Nation’s history, legal traditions, and practices.” (Id. at 710; see Lawrence v Texas, 539 US 558, 593 [2003] [Scalia, J., dissenting]; United States v Salerno, 481 US 739, 751 [1987].) In Glucksberg, the Supreme Court characterized the asserted liberty interest as “a right to commit suicide which itself includes a right to assistance in doing so.” (521 US at 723.) The Court distinguished this from “a liberty interest in determining the time and manner of one’s death,” “a right to die,” “a liberty to choose how to die,” “[a] right to choose a human, dignified death” or “[a] liberty to shape death.” (521 US at 722 [citations and internal quotations marks omitted].)

The precision with which the Supreme Court in Glucksberg defined the nature of the interest being asserted as deserving of constitutional protection was not novel for the Court. In many previous cases the Court utilized a similarly precise analysis for substantive due process. (See e.g. Reno v Flores, 507 US 292, 302 [1993] [describing alleged right as “the . . . right of a child who has no available parent, close relative, or legal guardian, and for whom the government is responsible, to be placed in the custody of a willing-and-able private custodian rather than of a government-operated or government-selected child-care institution,” not whether there is a right to “freedom from physical restraint,” “a right to come and go at will” or “the right of a child to be released from all other custody into the custody of its parents, legal guardian, or even close relatives”]; Collins v Harker Heights, 503 US 115, 126 [1992] [describing asserted interest as a government employer’s duty “to provide its employees with a safe working environment”]; Cruzan v Director, Mo. Dept. of Health, 497 US 261, 277, 279 [1990] [declining to decide whether there is a “right to die,” but assuming that the Constitution grants competent persons “a constitutionally protected right to refuse lifesaving hydration and nutrition”]; Michael H. v Gerald D., 491 US 110, 127 n 6 [1989] [plurality op] [focusing on “historical traditions specifically relating to the rights of an adulterous natural father,” rather than on whether “parenthood,” “family relationships,” “personal relationships” or “emotional attachments in general” are interests that have historically been recognized and protected (internal quotation marks omitted)].) Thus, the Court has consistently rejected the broad categorization of protected rights advocated by the plaintiffs, certain amici, and the court below.

Similarly, New York courts have focused on the specific interest being asserted, rather than on a more general and vague formulation of that interest. For example, following the reasoning on Cruzan, the Court of Appeals has held that under article I, § 6 of the New York Constitution, a person has a liberty interest in refusing unwanted medical treatment. (See Rivers v Katz, 67 NY2d 485, 493 [1986] [recognizing right of involuntarily committed patient to refuse unwanted administration of anti-psychotic medication]; Grace Plaza of Great Neck v Elbaum, 82 NY2d 10, 15 [1993] [acknowledging state liberty interest in refusing unwanted medical treatment].) Although this interest has been broadly described by the Second Circuit as a “right ... to hasten death” (Quill v Vacco, 80 F3d 716, 727 [2d Cir 1996], revd 521 US 793 [1997]), it clearly does not include a right to attempt or commit suicide (see Matter of Fosmire v Nicoleau, 75 NY2d 218, 227 n 2 [1990] [distinguishing refusal of life-sustaining treatment from, suicide]) or to enlist the aid of another in attempting or committing suicide.

The Glucksberg test has been specifically used to determine whether an asserted right or interest is protected by the liberty language of article I, § 6 of the New York Constitution. (People v Bell, 3 Misc 3d 773, 779-782 [Sup Ct, Bronx County 2003] [quoting the two-pronged Glucksberg test for evaluating substantive due process claims in the course of an opinion recognizing that under both the state and federal due process clauses, defendant had a protectable liberty interest in not being improperly stigmatized as a sexually violent predator]; see also People v Isaacson, 44 NY2d 511, 520 [1978], quoting Snyder v Massachusetts, 291 US 97, 105 [1934] [“(d)ue process of law guarantees respect for personal immunities ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’ ”].)

The plaintiffs contend and the motion court agreed that the courts of New York have recognized that “[t]he protections of the New York Constitution extend beyond those found in the Federal Constitution, which sets the floor, but not the ceiling, for the rights of the individual.” (7 Misc 3d 459, 473 [2005].) The contention is imprecise. In determining whether a provision in the New York Constitution affords greater rights than a similarly worded provision in the United States Constitution, a

“noninterpretive analysis attempts to discover, for example, any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right.” (People v P. J. Video, 68 NY2d 296, 303 [1986], cert denied 479 US 1091 [1987].)

In People v Vilardi (76 NY2d 67, 80 [1990]), Judge Simons in a concurrence accurately observed that

“[e]ven if the language of the two provisions is the same . . . the Court may conclude that a different construction is in order because of noninterpretative considerations [including] whether the right has historically been accorded greater protection in New York than is presently required under the Federal Constitution, whether it is ‘of peculiar State or local concern’ and whether the State citizens have distinctive attitudes toward the right.”

Thus, the protections afforded under the New York Constitution are not simply broader and all-encompassing. The additional protections are tied to a multifaceted analysis of the right asserted, and inter alia, it is in this analysis that the motion court erred.

Plaintiffs have not argued, and the lower court could not find, that New York statutory or common law ever defined the scope of the right to marry to include same-sex unions; that the history and traditions of this state protect a right to enter into a same-sex marriage; that the drafters and ratifiers of the New York Constitution intended to confer such a right distinct from and in addition to whatever right to marry exists under the United States Constitution; or that the citizens of this state have ever taken issue with the definition of the right to marry as one that exclusively involves one man and one woman or have sought to expand the scope of that right to protect same-sex, as well as opposite-sex, marriages. Plaintiffs’ failure to allege, much less prove, that any of these factors supports a right to enter into a same-sex marriage is fatal to their due process claim under the State Constitution.

The court below held that specificity in defining the nature of an asserted state due process claim is unnecessary. To support that contention, the court and plaintiffs both rely on People v Onofre (51 NY2d 476 [1980], cert denied 451 US 987 [1981]) and Cooper v Morin (49 NY2d 69 [1979], cert denied sub nom. Lombard v Cooper, 446 US 984 [1980].) Neither decision supports that contention in any respect.

The motion court ignored the plain language of Onofre that demonstrated it was decided on federal, not state, constitutional grounds. (See 51 NY2d at 483 [“whether the provision of our State’s Penal Law that makes consensual sodomy a crime is violative of rights protected by the United States Constitution”].) Onofre simply did not hold that there is a fundamental right to engage in “nonmarital sexual intimacy,” as the lower court opined. (7 Misc 3d at 477.) If it had, New York’s laws against adultery, incest and prostitution, as well as its laws allowing divorce or separation on the ground of adultery, would all be presumptively unconstitutional because, on the lower court’s reading of Onofre, those laws infringe upon a fundamental constitutional right. (See Penal Law §§ 255.17, 255.25, 230.00; Domestic Relations Law § 170 [4]; § 200 [4].)

In Cooper the Court utilized a state due process analysis, but the holding that “pretrial detainees are entitled to contact visits of reasonable duration” (Cooper v Morin, 49 NY2d at 73) was explicitly narrow. The limited nature of the holding in Cooper is evident from the later decision of Matter of Doe v Coughlin (71 NY2d 48 [1987], cert denied 488 US 879 [1988]), where the Court held that prison inmates have no state or federal constitutional right to conjugal visits. When the issue is properly framed in terms of the right being asserted (i.e., to enter into a same-sex marriage), it is readily apparent, as the lower court candidly acknowledged, that there is no such right under either the Federal or State Constitution. Neither Onofre nor Cooper lends itself to the expansive interpretation offered by the court below.

Ultimately, the question facing this Court is not the question articulated by the court below: whether homosexuals have a fundamental right to marry. It is whether the State or Federal Constitution recognizes a right to enter into a same-sex marriage.

It is beyond cavil that the Supreme Court has recognized a substantive due process right to marry. (See Loving v Virginia, 388 US 1 [1967]; Zablocki v Redhail, 434 US 374 [1978]; Turner v Safley, 482 US 78 [1987].) But the right recognized in these decisions concerned opposite-sex and not same-sex couples. (See Loving, 388 US at 2; Zablocki, 434 US at 379; Turner, 482 US at 97-98.) The right to marry is limited to opposite-sex couples by implication in a series of Supreme Court cases relating marriage to procreation and childrearing. (See Skinner v Oklahoma ex rel. Williamson, 316 US 535, 541 [1942] [“Marriage and procreation are fundamental to the very existence and survival of the race”]; Meyer v Nebraska, 262 US 390, 399 [1923] [liberty language in Due Process Clause includes “the right of the individual ... to marry, establish a home and bring up children”]; Maynard v Hill, 125 US 190, 211 [1888] [characterizing the institution of marriage as “the foundation of the family and of society, without which there would be neither civilization nor progress”].)

The Supreme Court has never stated or even implied that the right to marry under the Constitution or federal precedent extends to same-sex couples. And no court, state or federal, has ever held that marriage, traditionally understood, extends to same-sex couples. “Although same-sex relationships are more open and have garnered greater societal acceptance in recent years, same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state nor are they implicit in the concept of ordered liberty.” (Standhardt v Superior Ct., 206 Ariz at 284, 77 P3d at 459.) The federal substantive due process right to marry simply does not extend to same-sex unions; nor does any corollary right under the New York State Constitution. Plaintiffs, the motion court and the dissent have failed to cite any precedent in New York that holds that the right to marry applies to same-sex, as well as opposite-sex, unions. Marriage in New York, as elsewhere, has always been understood as a relationship between a man and a woman. Because the nature of the state due process right to marry is limited to opposite-sex couples, the lower court’s judgment that New York’s marriage statutes violate article I, § 6 of the New York Constitution is erroneous.

Plaintiffs next claim that the reservation of marriage to opposite-sex couples discriminates on the basis of sex and sexual orientation and thus violates the equal protection guarantee of the New York Constitution. Article I, § 11 of the New York Constitution provides, in relevant part, that “No person shall be denied the equal protection of the laws of this state or any subdivision thereof.” (NY Const, art I, § 11.) Without deciding whether the marriage statutes discriminate on the basis of sex, the motion court agreed with plaintiffs that the statutes discriminate on the basis of sexual orientation and held them unconstitutional on this ground. That holding was also erroneous.

Plaintiffs’ equal protection claim is foreclosed by the Supreme Court’s summary disposition in Baker v Nelson (409 US 810 [1972]). In Baker v Nelson, the Minnesota Supreme Court considered a broad-based federal constitutional challenge to a statute which, as interpreted by the trial court and the State Supreme Court, did not permit the issuance of marriage licenses to same-sex couples. (291 Minn 310, 311-313, 191 NW2d 185, 186 [1971].) In that case, petitioners argued, inter alia, that the reservation of marriage to opposite-sex couples discriminated against them in violation of the Equal Protection Clause. (291 Minn at 312, 191 NW2d at 186] [noting petitioners’ argument that “restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory”].) The Minnesota Supreme Court rejected this argument along with petitioners’ other claims. (291 Minn at 313-315, 191 NW2d at 187.) Petitioners appealed to the Supreme Court, raising the same federal constitutional claims. The Supreme Court dismissed their appeal for want of a substantial federal question. (Baker v Nelson, 409 US 810 [1972].) Under well-established precedent, the dismissal of the appeal in Baker for want of a substantial federal question constitutes a holding that the challenge was considered by the Court and was rejected as insubstantial. (See Hicks v Miranda, 422 US 332, 343-345 [1975].) The dismissal of the appeal is an adjudication on the merits of the federal constitutional claims raised, including due process and equal protection, which lower courts are bound to follow. (Id.)

The summary disposition in Baker v Nelson controls the disposition of the state equal protection claim brought herein. The Court of Appeals has repeatedly held that the equal protection guarantee of article I, § 11 of the New York Constitution (the first sentence of section 11) is no broader in coverage than the Equal Protection Clause of the Fourteenth Amendment. (See Under 21, Catholic Home Bur. for Dependent Children v City of New York, 65 NY2d 344, 360 n 6 [1985]; see also Matter of Esler v Walters, 56 NY2d 306, 313-314 [1982]; Dorsey v Stuyvesant Town Corp., 299 NY 512 [1949], cert denied 339 US 981 [1950].) The second sentence of section 11, which prohibits discrimination on the basis of “race, color, creed or religion” obviously has no application here. Thus, for purposes of this case, it is irrelevant that in adding the second sentence of section 11, the 1938 New York Constitutional Convention intended to provide greater protection against discrimination on the basis of “race, color, creed or religion” than had been provided theretofore by the Equal Protection Clause of the Fourteenth Amendment.

Because of this rule of parallel interpretation, a holding of the Supreme Court rejecting as insubstantial an equal protection claim under the Equal Protection Clause necessarily results in rejection of the same state law claim brought under article I, § 11. I agree with the Second Department when it concluded just that in Matter of Cooper (187 AD2d 128 [2d Dept 1993] [relying upon Baker in holding that the reservation of marriage to opposite-sex couples does not violate the equal protection guarantee of the State Constitution], appeal dismissed 82 NY2d 801 [1993].) Even if we were not to give Baker preclusive effect, there is no basis to conclude that the reservation of marriage to opposite-sex couples violates the equal protection guarantee of article I, § 11 of the New York Constitution.

For purposes of both state and federal equal protection analysis, “[a] statute which treats males and females differently violates equal protection unless the classification is substantially related to the achievement of an important governmental objective.” (People v Liberta, 64 NY2d 152, 168 [1984], cert denied 471 US 1020 [1985], citing, inter alia, Craig v Boren, 429 US 190, 197 [1976]; see also People v Whidden, 51 NY2d 457, 460 [1980], appeal dismissed 454 US 803 [1981].) The reservation of marriage to opposite-sex couples, however, does not “treat[ ] males and females differently,” as plaintiffs conceded below. It is beyond cavil that both men and women may marry persons of the opposite sex; neither may marry anyone of the same sex. Thus, there is no discrimination on account of sex.

The glaring difficulty with plaintiffs’ sex discrimination argument, as the Vermont Supreme Court noted, is that “the marriage laws are facially neutral; they do not single out men or women as a class for disparate treatment, but rather prohibit men and women equally from marrying a person of the same sex.” (Baker v State, 170 Vt at 215 n 13, 744 A2d at 880 n 13 [“(T)here is no discrete class subject to differential treatment solely on the basis of sex; each sex is equally prohibited from precisely the same conduct”].) Other state courts have also rejected the claim that “defining marriage as the union of one man and one woman discriminates on the basis of sex.” (170 Vt at 215 n 13, 744 A2d at 880 n 13, citing Baker v Nelson, 291 Minn at 312-314, 191 NW2d at 186-187 [1971], Singer v Hara, 11 Wash App at 253-255, 522 P2d at 1191-1192 [1974]; see also Jones v Hallahan, 501 SW2d at 590; Dean v District of Columbia, 653 A2d at 363 n 2 [Steadman, J., concurring] [“(t)he marriage statute applies equally to men and women”]; Goodridge v Department of Pub. Health, 440 Mass at 376, 798 NE2d at 991 [Cordy, J., dissenting] [the marriage statute “does not subject men to different treatment from women; each is equally prohibited from precisely the same conduct”].)

Plaintiffs rely on Loving v Virginia (388 US 1 [1967]) and Perez v Sharp (32 Cal 2d 711, 198 P2d 17 [1948]), for the proposition that facial neutrality does not immunize a statute from constitutional challenge, at least where it can be shown that the statute was enacted with a discriminatory intent.

Unlike the history of the antimiscegenation statutes struck down in Loving, however, which clearly stigmatized African-Americans as inferior to Caucasians, plaintiffs identify nothing in the history of New York’s marriage statutes suggesting that they were “intended to promote any hostility between the sexes, preserve any unequal treatment as between men and women, or perpetuate any societal or cultural bias with regard to gender.” (Lawrence v State, 41 SW3d 349, 358 [Tex Ct App 2001], revd on other grounds 539 US 558 [2003].) In light of the discriminatory intent with which they were enacted, antimiscegenation laws could not be legally justified by the fact that they applied equally to Caucasians and African-Americans. By way of contrast, there is no evidence that laws reserving marriage to opposite-sex couples were enacted with any intent to discriminate against either men or women. Accordingly, such laws cannot be equated in a facile manner with antimiscegenation laws.

The Loving analogy is inapt on purely logical grounds. The statutes struck down in Loving (as well as those in Perez) prohibited marriages between members of different races, not between members of the same race. The equivalent, in the area of sex, of an antimiscegenation statute would not be a statute prohibiting same-sex marriages, but one prohibiting opposite-sex marriages, an absurdity which no state has ever contemplated. The equivalent in the area of race, of a statute prohibiting same-sex marriage, would be a statute that prohibited marriage between members of the same race. Laws banning marriages between members of the same race would be unconstitutional, not because they would “segregate the races and perpetuate the notion that blacks are inferior to whites” (Lawrence v State, 41 SW3d at 357), but because there could be no possible rational basis for prohibiting members of the same race from marrying. Laws against same-sex marriage, on the other hand, are supported by multiple reasons set forth infra. The reservation of marriage to opposite-sex couples simply does not discriminate on the basis of sex.

Plaintiffs’ reliance on Loving is disingenuous for additional reasons. It is a fundamental precept of constitutional law that “[a] racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race.” (Lawrence v Texas, 539 US at 600 [Scalia, J., dissenting], citing Washington v Davis, 426 US 229, 241-242 [1976].) As demonstrated above, there is no history of constitutional recognition of same-sex unions, let alone absolute constitutional protection for same-sex unions. To elevate the issue of same-sex unions to that of discrimination on the basis of race does little service to the legacy of the civil rights movement, and ignores the history of race relations in this country. How can one consider the horror of the Civil War and the majesty of the Emancipation Proclamation in the same breath as same-sex unions?

Finally, the lower court accepted plaintiffs’ claim that the marriage statutes discriminate on the basis of sexual orientation. Reserving marriage to opposite-sex couples, however, does not discriminate on the basis of sexual orientation. Homosexuals may marry persons of the opposite sex, and heterosexuals may not marry persons of the same sex. As the Hawaii Supreme Court noted, “Parties to ‘a union between a man and a woman’ may or may not be homosexuals. Parties to a same-sex marriage could theoretically be either homosexuals or heterosexuals.” (Baehr v Lewin, 74 Haw 530, 543 n 11, 852 P2d 44, 51 n 11 [1993]; see Dean v District of Columbia, 653 A2d at 363 n 1 [Steadman, J., concurring] [agreeing with Baehr that “just as not all opposite-sex marriages are between heterosexuals, not all same-sex marriages would necessarily be between homosexuals”]; Goodridge v Department of Pub. Health, 440 Mass at 320 n 11, 798 NE2d at 953 n 11.)

I recognize that New York’s statutory scheme of reserving marriage to opposite-sex couples may have a greater impact upon homosexuals than heterosexuals. Nevertheless, it is fundamental that disparate impact alone is insufficient to invalidate a statute, even with respect to suspect or quasi-suspect classifications such as race and gender. Under well-established federal equal protection doctrine, a facially neutral law (or other official act) may not be challenged on the basis that it has a disparate impact on a particular race or gender unless that impact can be traced back to a discriminatory purpose or intent. The plaintiffs must show that the law was enacted because of, not in spite of, its foreseeable discriminatory impact. (See Washington v Davis, 426 US at 238-248 [rejecting an equal protection challenge to police department’s use of a job-related employment test to evaluate verbal skills of employment applicants which a higher percentage of African-Americans failed than Caucasians where there was no showing that racial discrimination entered into the establishment or formulation of the test]; Arlington Heights v Metropolitan Housing Development Corp., 429 US 252, 264-271 [1977] [municipality’s refusal to amend zoning ordinance to allow multifamily, low income housing in village where single family homes predominated did not violate the Equal Protection Clause where there was no evidence of discriminatory intent even though such refusal to rezone had a disproportionate impact on African-Americans]; Personnel Administrator of Mass. v Feeney, 442 US 256, 271-280 [1979] [upholding veterans’ hiring preference in state employment despite its disproportionate impact on women where there was no evidence that the statute conferring the preference was enacted with an intent to discriminate against women, as opposed to nonveterans of either sex].) Contrary to plaintiffs’ implication and the dissent’s artful urging, nothing in Lawrence v Texas overturned this line of authority. In Lawrence, the Supreme Court overruled Bowers v Hardwick (478 US 186 [1986]), and held that Texas could not criminalize homosexual acts of sodomy committed in private between consenting adults. (539 US 558 [2003].) Lawrence was decided on substantive due process grounds, not equal protection grounds. With respect to the due process basis for the decision, the Court in Lawrence determined that the Texas same-sex sodomy statute had been enacted with an antihomosexual animus. Plaintiffs have not alleged, much less proved, that the legislators who enacted the New York statutes related to marriage were motivated by a similar animus. In the absence of such allegation and proof, the mere fact that those statutes may have a disproportionate effect on homosexuals is not enough to sustain a challenge under New York Constitution, article I, § 11.

Equal protection jurisprudence under article I, § 11 of the New York Constitution is fully consistent with these principles. (See Campaign for Fiscal Equity v State of New York, 86 NY2d 307, 321 [1995] [“an equal protection cause of action based upon a disproportionate impact upon a suspect class requires establishment of intentional discrimination”], citing, inter alia, Arlington Heights v Metropolitan Housing Development Corp., 429 US 252, 265-265 [1977] and Washington v Davis, 426 US 229, 240 [1976]; People v New York City Tr. Auth., 59 NY2d 343, 350 [1983] [“purposeful discrimination is a necessary element” of a state equal protection claim based on disparate impact], citing, inter alia, Personnel Administrator of Mass. v Feeney, 442 US 256 [1979]; Board of Educ., Levittown Union Free School Dist. v Nyquist, 57 NY2d 27, 43-44 [1982] [noting that “(t)he more careful scrutiny standard has been applied when the challenged State action has resulted in intentional discrimination against a class of persons grouped together by reason of personal characteristics, the use of which called into question the propriety of the particular classifications’ ’], appeal dismissed 459 US 1138 [1983].)

In its cursory, one-paragraph discussion of plaintiffs’ sexual orientation discrimination claim, the lower court cited only one case, this Court’s opinion in Under 21 v City of New York (108 AD2d 250 [1985]). That reliance was clearly misplaced. In Under 21, we considered a challenge to the validity of an Executive Order issued by then-Mayor Koch which, inter alia, forbade city contractors from refusing to hire persons solely on the basis of their “sexual orientation or affectional preference,” regardless of their ability to perform their jobs in a satisfactory manner. (108 AD2d at 251.) In our opinion, we stated that “mere homosexual preference or orientation . . . cannot be used as the basis for denying ‘any person’ the equal protection of the law.” (108 AD2d at 256.) Under 21 provides no basis on which to invalidate New York’s reservation of marriage to opposite-sex couples.

First, unlike the Executive Order at issue in Under 21, which was aimed at hiring policies that intentionally discriminated on the basis of a person’s “sexual orientation or affectional preference,” the marriage statutes are facially neutral with respect to one’s sexual orientation, i.e., both heterosexuals and homosexuals may marry someone of the opposite sex, while neither may marry anyone of the same sex. The statutes do not “deny[ ] ‘any person’ the equal protection of the law” on the basis of his or her “homosexual preference or orientation.”

Second, in modifying this Court’s judgment, the Court of Appeals held that the Mayor had unlawfully usurped the role of the City Council in establishing legislative policy and that such usurpation could not be defended on the ground that the Mayor was preventing unlawful discrimination. (65 NY2d at 357-364.) With respect to the latter holding, the Court concluded that “the equal protection clause does not ordinarily prevent the city from contracting with private employers who discriminate on this basis [sexual orientation], as the existence of the contract would not, by itself, make the city ‘responsible’ for the private employment decisions so as to invoke constitutional protections.” (Id. at 364.) Because no conduct attributable to the City of New York was involved, the Court declined to decide “whether some level of ‘heightened scrutiny’ would be applied to governmental discrimination based on sexual orientation.” (Id.)

In Under 21, the Court of Appeals essentially determined that this Court need not have decided whether discrimination based on sexual orientation is subject to a higher standard of judicial review than rational basis because, on the facts of the case, that discrimination was not chargeable to the City. That being so, this Court’s discussion of the appropriate standard applicable to sexual orientation discrimination was unnecessary to how the case should have been decided.

Plaintiffs have not proved, or even alleged, that the marriage statutes were enacted with the purpose or intent to discriminate against homosexuals. Because the marriage statutes are not subject to an equal protection challenge on that basis, it is unnecessary to determine whether a law that did discriminate on the basis of sexual orientation would be subject to a more rigorous standard of judicial review. That question is not before this Court. The marriage statutes neither infringe upon a fundamental right nor discriminate on the basis of sex or sexual orientation. Accordingly, they must be upheld if they are reasonably related to any legitimate state purpose.

The instant case presents a series of statutory classifications limiting marriage to opposite-sex couples that are not based on a suspect or quasi-suspect characteristic. Furthermore, the classifications do not impermissibly interfere with the exercise of a fundamental right. The classifications “need only rationally further a legitimate state interest to be upheld as constitutional.” (Affronti v Crosson, 95 NY2d 713, 718-719 [2001], cert denied sub nom. Affronti v Lippman, 534 US 826 [2001].) Under this deferential standard of review, the marriage-related statutes at issue are presumed to be constitutional, and plaintiffs have the burden of negating “every conceivable basis which might support it . . . whether or not the basis has a foundation in the record. ” (Affronti v Crosson, 95 NY2d at 719 [citation omitted].) Plaintiffs “must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” (Id. [citation and internal quotation marks omitted].) Courts “may even hypothesize the Legislature’s motivation or possible legitimate purpose.” (Id. [citation omitted].) The State “has no obligation to produce evidence to sustain the rationality of a statutory classification. A legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” (Id. [citation omitted].) Plaintiffs have failed to carry their burden of proof because they cannot demonstrate that the reservation of marriage to opposite-sex couples is not rationally related to any legitimate state purpose. Accordingly, the lower court’s judgment that the marriage statutes are irrational and invalid is erroneous and should be reversed.

In addition to “preserving the traditional institution of marriage” (Lawrence v Texas, 539 US at 585 [O'Connor, J., concurring in the judgment]), reserving marriage to opposite-sex couples is reasonably related to the State’s interests in ensuring a stable legal and societal framework in which children are procreated and raised, and providing the benefits of dual gender parenting for the children so procreated. Courts in New York have traditionally recognized the legitimacy of these interests. Moreover, it is evident that same-sex couples cannot procreate by themselves or provide dual-gender parenting.

The motion court denied that marriage, as the union of man and woman, uniquely involves the procreation and raising of children. The court observed that “the long-term union of a man and a woman is no longer the only familial context for raising children.” (7 Misc 3d at 482.) The court noted that lesbians may conceive through artificial insemination and that, under New York law, both gays and lesbians may adopt children, individually, jointly or as second parents in a same-sex relationship. These observations, however, do not recognize the key difference between how most opposite-sex couples become parents, through sexual intercourse, and how all same-sex couples must become parents, through adoption and assisted reproduction. (Morrison v Sadler, 821 NE2d 15, 24 [Ind Ct App 2005].)

“Becoming a parent by using ‘artificial’ reproduction methods is frequently costly and time-consuming. Adopting children is much the same. Those persons wanting to have children by assisted reproduction or adoption are, by necessity, heavily invested, financially and emotionally, in those processes. Those processes also require a great deal of foresight and planning. ‘Natural’ procreation, on the other hand, may occur only between opposite-sex couples and with no foresight or planning. All that is required is one instance of sexual intercourse with a man for a woman to become pregnant.” (Id.)

In his dissent in Goodridge v Department of Pub. Health, Justice Cordy wrote that:

“Paramount among its many important functions, the institution of marriage has systematically provided for the regulation of heterosexual behavior, brought order to the resulting procreation, and ensured a stable family structure in which children will be reared, educated, and socialized. Admittedly, heterosexual intercourse, procreation, and child care are not necessarily conjoined . . . , but an orderly society requires some mechanism for coping with the fact that sexual intercourse commonly results in pregnancy and childbirth. The institution of marriage is that mechanism.

“The institution of marriage provides the important legal and normative link between heterosexual intercourse and procreation on the one hand and family responsibilities on the other. The partners in a marriage are expected to engage in exclusive sexual relations, with children the probable result and paternity presumed. Whereas the relationship between mother and child is demonstratively and predictably created and recognizable through the biological process of pregnancy and childbirth, there is no corresponding process for creating a relationship between father and child. Similarly, aside from an act of heterosexual intercourse nine months prior to childbirth, there is no process for creating a relationship between a man and a woman as the parents of a particular child. The institution of marriage fills this void by formally binding the husband-father to his wife and child, and imposing on him the responsibilities of fatherhood. The alternative, a society without the institution of marriage, in which heterosexual intercourse, procreation, and child care are largely disconnected processes, would be chaotic.” (440 Mass at 381-383, 798 NE2d at 995-996 [citations omitted].)

I note that the reservation of marriage to opposite-sex couples is also rationally related to the State’s interest in providing the benefits of dual-gender parenting. The Legislature could assume that “a recognition of same-sex marriages will increase the number of children experiencing this alternative,” and “conceivably conclude that declining to recognize same-sex marriages remains prudent until empirical questions about its impact- on the upbringing of children are resolved.” (440 Mass at 388, 389, 798 NE2d at 1000 [Cordy, J., dissenting].)

Various amici point out that New York law allows unmarried homosexual couples to adopt. Nevertheless, in reserving marriage to opposite-sex couples, the Legislature reasonably may have believed that the ideal of dual-gender parenting should be preserved whenever possible.

“The fact that the [State] currently allows same-sex couples to adopt . . . does not affect the rationality of this conclusion. The eligibility of a child for adoption presupposes that at least one of the child’s biological parents is unable or unwilling, for some reason, to participate in raising the child. In that sense, society has ‘lost’ the optimal setting in which to raise that child—it is simply not available. In these circumstances, the principal and overriding consideration is the ‘best interests of the child,’ considering his or her unique circumstances and the options that are available for that child. The objective is an individualized determination of the best environment for a particular child, where the normative social structure—a home with both th