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Appealing a Nassau County, N.Y., Supreme Court decision in a first-impression case involving gay rights, a New York hospital has filed a brief asserting that public policy and statutory law prohibit a plaintiff from proceeding with a wrongful-death claim as a same-sex spouse. St. Vincent’s Hospital in New York has submitted its 35-page brief, which argues that Justice John P. Dunne erred in April when he determined that the same-sex partner of an attorney who died after being struck by a hit-and-run driver could pursue a wrongful-death action as a spouse under Vermont law. In Langan v. St. Vincent’s Hospital, the hospital’s appeals brief asserts that neither New York law nor the federal Defense of Marriage Act permitted Justice Dunne to grant standing to the plaintiff, John Langan, who claims that St. Vincent’s committed malpractice in February 2002 when it treated his spouse, Neil Conrad Spicehandler, a solo practitioner in Massapequa, N.Y., at the time. Spicehandler was struck while walking in midtown Manhattan by a now-incarcerated driver during a three-day hit-and-run spree targeting pedestrians. He was admitted to St. Vincent’s for a fractured leg but died three days later from an embolus, according to Langan’s court papers. Langan and Spicehandler were joined in a civil union in Vermont a few months after the state passed its law in July 2000. Vermont Civil Union Law, enacted at Title 15 � 1204, provides that same-sex couples joined in a civil union have all of the same benefits, protections and responsibilities as those granted to spouses in traditional marriages. Considered the first of its kind in the nation, Justice Dunne’s 25-page ruling April 14 held that Vermont’s civil union created a marriage lawfully sanctioned and contracted in a sister state and that New York’s public policy did not preclude recognizing it as such in a wrongful-death lawsuit. The judge further determined that because the state Court of Appeals has held that the state’s wrongful-death statute, under the Estates, Powers & Trusts Law (EPTL), allows a “spouse” in a common-law union from a sister state to bring a wrongful-death action, those rights should be afforded to same-sex couples joined by Vermont’s civil union law. Dunne’s decision last spring was viewed as a victory for gay rights — but on a limited basis, said James Garland, Hofstra University School of Law professor. Garland, who teaches a course on sexuality and the law, said that although the lower court recognized Vermont’s union as it relates to New York’s Estates Powers & Trusts Law, judicial recognition of the same-sex union law under other statutory schemes, such as taxation, may not occur. He also cautioned that the decision came from the trial court level. “We are still in an era where there is great doubt about the rights of the lesbian, gay, bisexual and transgendered community,” he said. PLAIN MEANING ARGUED Represented by the New York firm Costello, Shea & Gaffney, St. Vincent’s argues in Point I of its appeals brief that the plain meaning of the EPTL and its legislative history do not include members of same-sex unions within the definition of “spouse.” In addition, the hospital asserts in the Point I portion that the federal Defense of Marriage Act (DOMA) relieves the state of any obligation to extend Full Faith and Credit under the U.S. Constitution to Vermont’s law. Enacted by Congress in 1996 at 28 USC 1738, DOMA provides, in part, that “marriage” as a legal union is only between one man and one woman as husband and wife, and that the word “spouse” refers only to a person of the opposite sex. Also pursuant to DOMA, one state is not required to heed another state’s recognition of “a relationship between persons of the same sex treated as a marriage.” As a result, DOMA creates an exception, with regard to same-sex marriages, to the U.S. Constitution’s Full Faith and Credit doctrine, the hospital argues. Point II of the hospital’s appeals brief addresses arguments that Langan made at the lower court level regarding Equal Protection and social policy. Langan is represented by Adam L. Aronson, attorney for Lambda Legal Defense and Education Fund, a national gay and lesbian civil rights organization based in New York. At the lower court level, Aronson had asserted that prohibiting his client from bringing a wrongful-death action under the EPTL violated Equal Protection because it had a severely discriminatory effect on gay and lesbian people in violation of the New York Constitution. But the hospital’s brief argues that the standard to apply in determining whether excluding same-sex spouses from a wrongful-death claim under the EPTL is a rational basis test, a standard that the plaintiff cannot meet. The test requires the plaintiff to demonstrate that no rational basis exists to restrict a wrongful-death claim under the EPTL to opposite-sex couples. The hospital argues that “a legitimate state interest is plainly demonstrated” by decisions recognizing the “importance of marriage between one man and one woman in the context of descent and distribution.” Such decisions from the U.S. Supreme Court that cite the “orderly disposition” of property at death and “legitimate family relationships” underscore its point, St. Vincent’s urges. Concluding its brief, the hospital appears to return to its “plain meaning” argument. “[P]laintiff and the court below … disregarded the powerful presumption of constitutionality and the deference that results because of the presumption that the Legislature will continue to tailor even improvident laws.” Aronson said his brief is due Dec. 3. St. Vincent’s has requested 30 minutes for oral arguments before the Appellate Division, 2nd Department.

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