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Expressing deep reservations over the unknown consequences of ruling in favor of the plaintiff, the judges on the New York Court of Appeals Monday seemed leery of gay students’ claim that Yeshiva University violates civil rights laws by denying homosexual partners the same housing benefit afforded married couples. During an hour of probing and at times soul-searching inquiry, the judges repeatedly returned to the question of what sort of Pandora’s Box they might open if they force Yeshiva University to recognize gay unions for purposes of student housing. They asked about the implications in wrongful death actions, in estate matters, in cases involving employee benefits and in other housing disputes — and they did not seem especially satisfied with the answers. “If we agreed with you, where would this lead?” Chief Judge Judith S. Kaye asked the plaintiff’s attorney, James D. Esseks, of Vladeck, Waldman, Elias & Engelhard in Manhattan. “I mean that in two respects: first, on the impact in this case; and second, on the law generally in the state of New York.” Levin v. Yeshiva University, 76, arises from an attempt by lesbian medical students to secure housing for themselves and their domestic partners in university apartments reserved for married couples. Couples seeking residence in the university’s below-market-rate apartments must submit a marriage certificate, which is not available for gay partnerships. Unlike heterosexual couples, who can meet the university’s housing policy by getting married, homosexual partners have no way of complying. At issue is whether the policy of Yeshiva University violates the state’s or New York City civil rights laws, and also whether it fosters an illegal disparate impact. Plaintiffs Sara Levin and Maggie Jones, who were both medical students at the Albert Einstein College of Medicine of Yeshiva University, sought university housing for themselves and their respective same-sex partners but were denied because they could not produce the requisite marriage certificate. They responded with a lawsuit accusing the university of violating various provisions of the New York Executive Law and the New York City Executive Code. On March 29, 1999, Supreme Court Justice Franklin Weissberg of New York County dismissed the complaint for failure to state a cause of action (180 Misc2d 829). In doing so, Justice Weissberg upheld the university’s policy. The Appellate Division, 1st Department, affirmed in a brief, unsigned opinion (272 AD2d 158). The court unanimously held that the policy has the same impact on non-married heterosexual students as on non-married homosexual students. It also found no violation of a state law protecting the rights of roommates, Real Property Law �235-f(2), since the statute applies only to premises occupied as a primary residence. This appeal presents the Court of Appeals with a cutting-edge question, and its decision will be among the first in the nation addressing the issue. As such, it has attracted nationwide attention and is of vital importance to the homosexual community. During oral arguments Monday, the judges seemed concerned with making clear that the case does not raise constitutional claims, that disparate impact is not implicated when a statute is facially neutral as the one here may or may not be, and that the plaintiffs may be asking the court to blaze a trail when it has little idea of where it would lead. WHAT IS A ‘PARTNERSHIP’? Plaintiffs’ attorney Esseks argued that the policy is inherently discriminatory even if it purports to treat all non-married students similarly. “Since lesbians and gay men cannot get married, they are completely excluded from any eligibility for this particular kind of housing,” Esseks said. Judge Richard C. Wesley asked what would be required of the court to reach the result that Esseks seeks. “How are we to understand the definition of partnership?” Wesley asked. “Are we to recognize relationships that are a year long, two years long, three years long? How do we understand the equivalency of ‘partnership’ and marriage?” Esseks said there is no reason for the Court of Appeals to reach that issue. Mark A. Jacoby of Weil, Gotshal & Manges in Manhattan, counsel for the university, said reversal in this case would have the practical impact of forcing Yeshiva University to open the doors of its married housing units to “everybody who wants to bring in a buddy or a friend or a partner” — and suggested that to do so would be an outrageous intrusion on the legislative process. “There is no principled basis on which this court can define a partner under the Human Rights Law,” Jacoby said. “There simply isn’t anything to grab on to and [it would be] a raw political act in making up a standard that doesn’t exist in the law.” Judge Howard A. Levine shot back: “We didn’t have any trouble with that in Braschi,” referring to the court’s 1989 decision in Braschi v. Stahl Associates, 74 NY2d 201, where it found that when the term “family” is used in a statute without definition it may include same-sex couples and others not related by marriage, blood or adoption. YES OR ‘MOSTLY NO’ Jacoby relies largely on two Court of Appeals precedents in primary support of his position: Hudson View Properties v. Weiss, 59 NY2d 733 (1983), where the court said State Human Rights Law did not prohibit the eviction of a woman who was living with her boyfriend in violation of a lease provision restricting occupancy to “immediate family members”; and Manhattan Pizza Hut Inc. v. New York State Human Rights Appeal Board, 51 NY2d 506 (1980), where the court held that an anti-nepotism policy did not constitute unlawful discrimination based on marital status. “This is by no means a question of first impression,” Jacoby told the court. “This court has ruled specifically on the very issue raised by the appellants here on marital status and discrimination claims [in Manhattan Pizza Hut] … . It is the status of the individual that is involved when it comes to marital status discrimination, not the relationship with the other party.” During Esseks’ rebuttal, Judge Kaye again returned to her early question on the implications of finding for the plaintiffs. “Mr. Esseks,” she said, “I wonder if you would answer the question I asked you earlier about the consequences of finding in your favor would be both in this case and in the law generally? … Let’s be frank here, Mr. Esseks, do we then have to determine what the criteria are?” Esseks said the court would not have to establish criteria defining domestic partnerships, in part because New York City already has such a definition. But Kaye asked about the implications outside the city. “I am trying to understand what the consequences would be in finding in your favor,” Kaye said in apparent frustration. “Does ruling in your favor necessarily carry us … into areas of employee benefits and beyond housing?” Esseks responded, “Only perhaps in a very limited manner, because …” and then was interrupted by the chief judge. “Is that a yes?” Kaye demanded. “That is a mostly no, your honor,” Esseks answered.

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