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NEW YORK � Same-sex partners cannot pursue a wrongful death action in New York, a divided appeals court in Brooklyn ruled Thursday in a closely watched case involving two New Yorkers who had entered a civil union in Vermont. The 3-2 majority of the Appellate Division, Second Department, said such a right is only available to married couples, and that any ruling affording the same right to a gay couple would amount to a judicial sanction of same-sex marriage. Only the state Legislature could offer such an endorsement, the court said. “The circumstances of the present case highlight the reality that there is a substantial segment of the population of this State that is desirous of achieving state recognition and regulation of their relationships on an equal footing with married couples,” Justice Robert Lifson wrote in Langan v. St. Vincent’s Hospital, 2003-04702. “There is also a substantial segment of the population of this State that wishes to preserve traditional concepts of marriage as a unique institution confined solely to one man and one woman. Whether these two positions are not so hopelessly at variance (to all but the extremists in each camp) to prevent some type of redress is an issue not for the courts but for the Legislature.” Two dissenting justices, however, said the majority had improperly construed the case as one about same-sex marriage rather than about the state’s wrongful death statute and a person’s right to equal protection under the law. “This case is not about marriage,” Justice Steven Fisher wrote in a dissent that spanned 14 of the decision’s 19 total pages. He said the only real effect of the majority’s position “is to provide a windfall to a potential tortfeasor.” Adam Aronson of the Lambda Legal Defense and Education Fund, which represented the plaintiff, John Langan, said the ruling represented a “radical departure” from the court’s traditional view of the legal protections afforded to those with spousal status in other states. “The majority’s decision, as the dissent correctly says, totally misses the point,” Aronson said. “This case is not about marriage.” Aronson also disagreed with many aspects of Justice Fisher’s dissent, though he agreed with his equal protection analysis. The appeal has garnered attention from many in the legal community, largely in support of Langan. Langan’s partner, Neal Spicehandler, was struck by a hit-and-run driver in midtown Manhattan in February 2002. Spicehandler, who was an attorney in Massapequa, Long Island, underwent two surgeries at St. Vincent’s Hospital. Langan claimed he was told the surgeries were successful, but Spicehandler later died from what Langan said was an embolus, or a blood clot. Langan sued for medical malpractice, and Nassau County Supreme Court Justice John Dunne held that the suit could proceed. While the judge’s ruling did not decide whether Langan should be considered a spouse in New York for “all purposes,” he found that New York law did not preclude recognition of the Vermont civil union for the wrongful death statute. St. Vincent’s appealed, arguing that public policy and state statutes barred a plaintiff in a same-sex relationship from bringing a wrongful death claim. Filing briefs in support of Langan were the office of Attorney General Eliot Spitzer and the New York City Bar. Joining the city bar’s amicus curiae brief were the Women’s Bar Association, the New York County Lawyers’ Association and the American Academy of Matrimonial Lawyers. In reversing Justice Dunne Thursday, the majority was careful to characterize Langan and Spicehandler’s 16-year relationship as “close, loving, committed,” “monogamous,” and “indistinguishable from any traditional marital relationship.” However, the majority said, the relationship was not one that fit into the “four corners” of the state’s wrongful death statute in New York’s Estates, Powers and Trusts Law (EPTL). The statute allows surviving spouses the right to bring a legal action for wrongful death, but the thought that a surviving spouse would be of the same sex was “inconceivable” when the statute was drafted, Justice Lifson wrote. In order to upend the statute, he said, Langan had to show that it was not merely unwise or unfair but served no legitimate governmental purpose. Justice Lifson said the majority’s ruling was not offensive to the equal protection clause of either the federal or state constitutions. He relied largely on a Minnesota case, Baker v. Nelson, (291 Minn 310), that held that denial of marital status to same-sex couples did not violate the Fourteenth Amendment. The U.S. Supreme Court declined to review that holding ( Baker v. Nelson, 409 US 810). Justice Lifson also cited the Supreme Court’s ruling in Lawrence v. Texas, 539 US 558, which held that laws criminalizing sodomy were unconstitutional. He noted that the majority in Lawrence did not require the government to give any formal recognition to same-sex relationships. POINTS OF AGREEMENT Justice Fisher agreed with the majority on key points. He said the term spouse in the EPTL was intended to include only persons joined in marriage. He also rejected the notion the doctrine of comity would allow Langan to sue, since Vermont’s civil union law was local and Vermont had no legitimate interest in Langan’s ability to sue in New York, while New York did. Justice Fisher departed from the majority in one respect: whether the disparity of treatment in this case had a rational relationship to a legitimate governmental objective promoted by the wrongful death statute. “The issue,” Justice Fisher wrote, “is whether New York’s interest in fostering traditional marriage, and in preferring it to any other relationship between unrelated adults, is in any conceivable way advanced or promoted by a law that authorizes a surviving spouse, but not a surviving member of a Vermont civil union, to sue for wrongful death.” The judge turned to two U.S. Supreme Court opinions that examined wrongful death laws, Levy v. Louisiana, 391 US 68 (1968), and its companion case, Glona v. American Guar. & Liab. Ins. Co., 391 US 73 (1968). In Levy, the court struck down a statute that effectively precluded children born outside of marriage from suing for the wrongful death of their mother. In Glona, the court struck down the same statute insofar as it was construed to prevent a mother from suing over the death of her out-of-wedlock child, who was killed in an automobile accident. “Just as the Supreme Court could find no conceivable rational relationship between any governmental purpose promoted by a wrongful death law and a classification of wrongful death plaintiffs or victims according to their legitimacy, neither can I identify any reasonably conceivable rational basis for classifying similarly-situated wrongful death plaintiffs on the basis of their sexual orientation,” Justice Fisher wrote. Tom Perrotta is a reporter with the New York Law Journal, a Recorder affiliate.

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