Short Form Order on Cross-motions for dismissal and partial summary judgment
April 10, 2003
Dunne, J.

In this action for wrongful death and medical malpractice, the limited issue presented on the motion and cross-motion is whether, under principles of full faith and credit or comity, plaintiff John Langan's legal status as a spouse of Neal Spicehandler in a civil union solemnized in the State of Vermont, which union is sanctioned and affords all benefits and obligations of marriage under the laws of Vermont, entitles him to recognition as a "spouse" under New York's wrongful death statute. Plaintiff does not raise any derivative claim for loss of consortium.

As background for analysis, the circumstances of Neal Spicehandler's death, as well as the circumstances of his life are reviewed.

Neal Conrad Spicehandler and John Langan met on November 1, 1986 when Spicehandler was 26 and Langan was 25. They moved in together eight months later and lived together until Spicehandler's death at age 41. They provided each other with health care proxies, each was the sole beneficiary on the other's life insurance policy, they were joint owners on homeowner's insurance, and were the sole legatees under each other wills.

In the year 2000 Vermont enacted a statute which legally sanctioned homosexual unions in the same manner as a marriage. The civil union required the same solemnization as a marriage and created spouses for all purposes under Vermont state law. Within four months of its passage, Spicehandler and Langan, in a formal ceremony with approximately forty family members and friends attending, were joined in a union solemnized by a Justice of the Peace. Their vows included taking each other "to be my spouse." They exchanged wedding bands; they planned to adopt children, and finally purchased a house in Massapequa, Long Island. Within hours of the closing Neal Spicehandler was struck by the automobile driven by Ronald Popodich who ran down and injured 18 people in Manhattan. He was taken to St. Vincent's Hospital with a broken leg, and underwent two surgeries. He died while in the hospital from an embolus of "unknown origin."

Neal Conrad Spicehandler was known as both Neal and Conrad. He is referred to as both by different family members and friends as they describe the nature of his relationship with plaintiff. Their words are telling. First, the parents. Ruth Spicehandler, Neal's mother knew John Langan as her son's partner for 16 years, and even her grandchildren know John as an uncle. She explains, "John has been Neal's partner in all aspects of life." They participated together "in all family functions" including "birthdays, anniversaries, religious events, holidays, dinners, and vacations." Plaintiff's parents, Daniel and Barbara Langan, worried that their son would face "prejudice, hostility and other difficulties" and initially did not accept his relationship with Spicehandler. But they changed, stating "John has always loved life, but we believe he loved Conrad even more. It is as if a part of him died when Conrad died."

New York does not compensate a spouse for spiritual or emotional loss, but it may compensate Langan for his pecuniary loss if it is determined that he is a spouse for purposes of the wrongful death statute. There is no infirmity of proof on the factual issues. The evidence offered establishes that John Langan and Neal Conrad Spicehandler lived together as spouses from shortly after they met in 1985 until the year 2000, when they took the first opportunity to secure legal recognition of their union in the State of Vermont, and were joined legally as lawful spouses.

Under New York law as it now stands, if Langan were a registered domestic partner, he would be able to succeed to a rent controlled apartment as a "family member," would be able to recover had his partner been lost in the September 11 tragedy, would be eligible for the derivative employment benefits of a city or state employed partner, including death benefits, would be eligible to adopt his partner's biological child, and would be entitled to be free from discrimination on the basis of sexual orientation under the civil rights and executive law. He would not, however, be able to recover as a spouse under the wrongful death statute ....

With respect to marriages entered into in sister states, New York adheres to the general rule that "marriage contracts, valid where made, are valid everywhere, unless contrary to natural laws or statutes" (Shea v. Shea, 294 NY 909....[This is true] for purposes of the wrongful death statute (Black v. Moody, 276 AD2d 303....It follows that, if plaintiff has a validly contracted marriage in the State of Vermont, and if the Vermont civil union does not offend public policy as would an incestuous or polygamous union, it will be recognized in the State of New York for purposes of the wrongful death statute.

[T]he court will not determine whether plaintiff has a valid marriage in the State of New York for all purposes, but only whether he may be considered a spouse for purposes of the wrongful death statute, much as the Court of Appeals has held that a same sex domestic partner is a "family" member for the limited purposes of the New York City's rent control laws (see, Braschi v. Stahl Assoc., 74 NY2d 201). Although the court must examine the nature of the Vermont civil union, and whether it can be distinguished from the honored state of marriage, the purpose of doing so is thus limited. To resolve the statutory spouse issue, discussion must primarily focus upon what a Vermont civil union is, and is not, and compare it to a marriage, and determine whether New York's public policy precludes recognition under full faith and credit....

Addressing the issue of policy first, New York has not enacted a mini DOMA. This acronym refers to the federal Defense of Marriage Act (1 U.S.C. § 7; 28 U.S.C. § 1738C), which in response to Vermont's civil union statute, declares that a marriage is a union between a man and a woman, and that no State shall be "required to give effect" to a same-sex union. [T]hirty five states have passed mini DOMAs. New York is not among them. [The court then discussed several areas of law in which New York affords rights to same-sex couples.]

Concluding that New York's public policy does not preclude recognition of a same-sex union entered into in a sister state, the next issue is Vermont's civil union statute. Passage of Vermont's historic civil union statute was compelled by a decision of the Vermont Supreme Court which, acknowledging that the question before it "arouses deeply-felt religious, moral, and political beliefs," and framing the question to focus "on the statutory and constitutional basis for the exclusion of same-sex couples from the secular benefits and protections offered married couples," held that all Vermont citizens, both heterosexual and homosexual, are entitled to the benefits and protections of a state-sanctioned union under the Common Benefits Clause of the Vermont Constitution (Baker v. State, 170 Vt. 194, 197).

The Vermont statute, effective July 1, 2000, requires that plaintiff be entitled to "the benefits and protections" and "be subject to the rights and responsibilities" of "spouses" (15 VSA § 1201[2]), and "gives same-sex couples access to more than 300 rights derived from Vermont state law." A civil union under Vermont law is distinguishable from marriage only in title, as it defines marriage as "the legally recognized union of one man and one woman" (15 VSA § 1201[4]). Yet it goes so far as to include a presumption of legitimacy for either party's natural child born during the union, giving new meaning to the well established legal fiction intended to protect innocent children "ensuring their financial and emotional security, and ultimately preserving the stability of the family unit" (15 VSA § 1204[f]; see, Godin v. Godin, 168 Vt. 514, 521, 522). The presumption of legitimacy, when extended to a same-sex couple, together with the obligations of support and requirement for a divorce, indicate that the civil union is indistinguishable from marriage, notwithstanding, that the Vermont legislature withheld the title of marriage from application to the union....

Thus, the ultimate issue may be framed as the question whether EPTL 4-1.1 excludes spouses who are in every material way sanctioned in a union for life because they may not be properly described as a husband or a wife, or more pointedly, because they are both men or both women. Taking heed of Justice Brandeis' admonition, that, "we must be ever on our guard, lest we erect our prejudices into legal principles" (New York Ice Co. v. Liebmann, 285 US 262, 311 [Brandeis, J. dissenting]), this court must look to the "legislative purpose as well as legislative language" of the EPTL's protection of a spouse to determine whether plaintiff is a person entitled to such protection (see Matter of Jacob, 86 NY2d 651, 658).

Turning to legislative purpose, the wrongful death statute is intended to "promote the public welfare" (Raum v. Restaurant Assoc., 252 AD2d 369, 371, supra Rosenberger, J. dissenting), and its goals "are to compensate the victim's dependents, to punish and deter tortfeasors and to reduce welfare dependency by providing for the families of those who have lost their means of support" (Raum v. Restaurant Assoc., supra at p 374, Rosenberger, J. dissenting). Thus the wrongful death statute is intended to compensate the pecuniary losses first and foremost of the decedent's immediate family, that is, his or her spouse and children, those most likely to have expected support and to have suffered pecuniary injury [citation omitted]. The person most likely to have expected support and to have suffered pecuniary injury here is plaintiff, Spicehandler's immediate family and spouse under the Vermont statute, and the only legatee under his will.

Turning to the statutory language, the EPTL provides that only certain classes of people may recover for wrongful death. They are "distributees" (EPTL 5-4.1), defined as those who are "entitled to take or share in the property of a decedent under the statutes governing descent and distribution" (EPTL 1-2.5), and they are compensated not for injuries sustained by the decedent, but for their pecuniary injuries suffered as a result of his or her death (EPTL 5-4.3). Distributees are identified both for purposes of intestacy and wrongful death, and include a "spouse, issue, parents, grandparents or their issue" (EPTL § 4-1.1[a]).

The court acknowledges that at the time the wrongful death statutes were written, the use of the term spouse did not envision inclusion of a same-sex marital partner. But as the concepts of marriage evolve over time, leaving behind the common law doctrine that "a woman was the property of her husband" and her "legal existence" was "'incorporated and consolidated into that of the husband'" (see People v. Liberta, 64 NY2d 152, 164), so too public opinion regarding same-sex unions is evolving. At the time the statute was written, there were no sanctioned same-sex couples, much less domestic partnerships, civil unions, reciprocal beneficiaries, and, as in the Netherlands, full fledged same-sex marriage (see Nancy G. Maxwell, Opening Civil Marriage to Same-Gender Couples: A Netherlands-United States Comparison, 18 Ariz. J. Int'l & Comp. L. 141, 200). Indeed homosexuality had not yet been removed from the professional medical and psychological definitions of disease (Martha M. Ertman, Oscar Wilde: Paradoxical Poster Child for Both Identity and Post-Identity, 25 Law & Soc. Inquiry 153, 166), and consenting adult homosexual intimacy was considered criminal (see, People v. Onofre, 51 NY2d 476). Nor had Ford, General Motors, Chrysler and Coca Cola, provided benefits to the same-sex partners of its employees (David M. Skover Lesbigay Identity as Commodity 90 Cal. L. Rev. 223, 237-238 [The total number of private employers now offering domestic partnership benefits approximates 3,500]).

The words of the statute, referring to a spouse as a husband or wife, operate to clarify that the intended primary beneficiaries are the members of the legally sanctioned family unit which is still intact.

There is a compelling reason to construe the EPTL to include a Vermont spouse under the fundamental tenet of construction that "a statute ought normally to be saved by construing it in accord with constitutional requirements" (People v. Dietze, 75 NY2d 47, 52). That "the very language of the statute must be fairly susceptible of such an interpretation" is not an obstacle here, and the court "'may reasonably find implicit' in the words used by the Legislature" that all spouses were to be included (see People v. Dietze, 75 NY2d 47, 52). Spouse is a gender neutral word, it applies to a man or a woman, and is applied to plaintiff under the Vermont civil union. As the EPTL is construed to apply to a common law couple who have not been joined by a civil ceremony and may separate at will, it is impossible to justify, under equal protection principles, withholding the same recognition from a union which meets all the requirements of a marriage in New York but for the sexual orientation of its partners. The state "may not draw distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective" (Under 21 v. City of New York, 108 AD2d 25, modified on other grounds, 65 NY2d 344; Lofton v. Kearney, 157 F.Supp.2d 1372, 1381 [S.D.Fla.,2001]). For example, with respect to wrongful death statutes, the Supreme Court has held that a distinction between illegitimate and legitimate children for purposes of recovery is an irrational one (Glona v. American Guar. & Liab. Ins. Co., 391 US 73).

This court is mindful that it must pay due respect to the legal wisdom of the rule that a court should be "certain of its ground before making a categorical finding that there is no permissible objective served by a state statute or that there is utterly no...discernible relation between the legislature's classification and a legitimate end" (In re Paris Air Crash, 622 F.2d 1315, 1319 [9th Cir. Cal.], cert denied 449 U.S. 976). But where a statute draws a distinction based upon marital status the distinction "must be based upon 'some ground of difference that rationally explains the different treatment'" (People v. Liberta, 64 NY2d 152, 163). Here there is no difference for state purposes between a married person and a person joined in civil union under the laws of Vermont except sexual orientation. Upon examination of the rejection of homosexual unions in the past, the reasons propounded for supporting distinctions, such as the at will nature of homosexual relationships and the absence of children, society's future, from their unions, simply do not apply, in light of the Vermont civil union and New York's and Vermont's rules regarding adoption. The civil union is indistinguishable for societal purposes from the nuclear family and marriage....

Accordingly, this court finds....that plaintiff, a surviving spouse under the laws of Vermont, is included within the meaning of spouse as it is used under section 4-1.1 of the EPTL, and has standing to recover for the wrongful death of Neal Conrad Spicehandler.