Langan v. St. Vincent's Hospital

The majority’s forceful defense of the Legislature’s prerogative to define what constitutes a marriage in New York seems to me to miss the point. This case is not about marriage. The plaintiff does not claim to have been married to the decedent, and clearly he was not, either under the laws of New York or in the eyes of Vermont.

What this case is about is the operation of a single statute— New York’s wrongful death statute—that controls access to the courts for those seeking compensation for the loss of a pecuni*96ary expectancy created and guaranteed by law. The statute provides such access to a decedent’s surviving spouse because the wrongful death of one spouse deprives the other of an expectation of continued support which the decedent would have been obligated by law to provide (see e.g. Family Ct Act § 412; Social Services Law § 101 [1]).1 But, as applied here, the statute does not permit the surviving member of a Vermont civil union to sue for wrongful death, even though, like spouses, each member of the civil union is obligated by law to support the other (see Vt Stat Ann, tit 15, § 1204 [c]). The principal question presented, therefore, is whether, as it currently operates to permit spouses but not partners in a Vermont civil union to sue for wrongful death, the law draws a distinction between similarly-situated persons on the basis of sexual orientation and, if so, whether the distinction bears some rational relationship to any conceivable governmental objective promoted by the statute. Because I conclude that the statute as applied here does classify similarly-situated persons on the basis of sexual orientation without a rational relationship to any conceivable governmental purpose furthered by the statute, I respectfully dissent.

The facts are largely undisputed.

The plaintiff, John Langan, and the decedent, Neil Conrad Spicehandler, met in 1986 and soon began an intimate relationship that proved to be both stable and long lasting. Thirteen years later, they were living together in New York when the Supreme Court of Vermont issued its decision in Baker v State (170 Vt 194, 744 A2d 864 [1999]). The court held that the Common Benefits Clause of the Vermont Constitution (see Vt Const, ch I, art 7) required that same-sex couples be granted the same statutory benefits and protections enjoyed by persons of the opposite sex who choose to marry, and it ordered the State to fashion a remedy to achieve that result (see Baker v State, supra, 170 Vt at 197-198, 744 A2d at 867).

As the majority correctly points out, Vermont’s Legislature responded by reaffirming the State’s traditional view that “ ‘[marriage’ means the legally recognized union of one man and one woman]” (Vt Stat Ann, tit 15, § 1201 [4]). It then established a new, parallel legal status, called a civil union, for same-sex couples not eligible to marry under Vermont law (Vt *97Stat Ann, tit 15, § 1202). The new legislation prescribed how a civil union could be established (see id.), and how it could be dissolved (see Vt Stat Ann, tit 15, § 1206). And it provided that those who establish a civil union would have the same benefits, protections, and responsibilities as married couples had in Vermont (see Vt Stat Ann, tit 15, § 1204 [e]), including, importantly, the responsibility “for the support of one another to the same degree and in the same manner as prescribed under law for married persons” (Vt Stat Ann, tit 15, § 1204 [c]).2

In November 2000, approximately four months after Vermont’s civil union law went into effect, the plaintiff and the decedent traveled to Vermont with some 40 family members and friends and solemnized a civil union in a ceremony performed by a justice of the peace in accordance with Vermont law. After the ceremony, the plaintiff and the decedent returned to their home, and to their lives, in New York.

On February 12, 2002, the decedent was injured in midtown . Manhattan by a hit-and-run driver. He was admitted to St. Vincent’s Hospital of New York (hereinafter St. Vincent’s) where he underwent two surgeries to address open fractures to his left tibia and fibula. At first, the plaintiff was told by hospital staff that the surgeries had been successful and that the decedent would be discharged. On the morning of February 15, 2002, however, the plaintiff received a telephone call from a physician at St. Vincent’s informing him that the decedent had died.

The plaintiff subsequently commenced this action against St. Vincent’s, both on his own behalf and as executor of the decedent’s estate. As executor, he sought damages, inter alia, for medical malpractice and lack of informed consent. On his own behalf, he sought damages for wrongful death.

The defendant St. Vincent’s moved, inter alia, to dismiss the wrongful death claim on the ground that the plaintiff was not the decedent’s distributee and therefore could not recover damages for his wrongful death. The plaintiff cross-moved for summary judgment on the issue of his standing to assert the wrongful death claim. He argued that his status under Vermont’s civil union law entitled him to sue as the decedent’s surviving spouse.

In a detailed opinion, the Supreme Court denied St. Vincent’s motion and granted the plaintiffs cross motion. The court found *98that, because the plaintiff qualified as a surviving spouse under the laws of Vermont, he was included within the meaning of “spouse” as that term is used in New York’s Estates, Powers and Trusts Law and therefore had standing to recover for the wrongful death of the decedent (see Langan v St. Vincent's Hosp. of N.Y., 196 Misc 2d 440 [2003]). This appeal followed.3

New York’s Estates, Powers and Trusts Law (hereinafter EPTL) allows an action for the wrongful death of any individual who is survived by one or more distributees, with the recovery to provide compensation for economic injuries suffered as a result of the death (see EPTL 5-4.1 [1]; 5-4.4 [a]). A distributee is any person who may be entitled under law to take or share in the decedent’s property not disposed of by will (see EPTL 1-2.5, 4- 1.1). Distributees include certain of the decedent’s blood relatives, his or her adopted children, and, unless disqualified, his or her “spouse” (see EPTL 4-1.1, 5-1.2).

The majority writes that it would have been inconceivable to the drafters of the wrongful death statute that the surviving spouse would be of the same sex as the decedent. I agree.

Although the term “spouse” is not defined in the EPTL, its use in several provisions in that chapter leaves no doubt that it was intended to include only those persons joined together in marriage (see Raum v Restaurant Assoc., 252 AD2d 369, 370 [1998]). For example, both sections 5-1.1 (b) (1) and 5-1.1-A (b) (1) of the EPTL explicitly refer to “the date of the marriage” in determining whether a transaction benefitting the “spouse” constitutes a testamentary substitute. Similarly, both EPTL 5- 1.1 (f) (3) (A) and 5-1.1-A (e) (3) (A) provide, inter alia, that the waiver or release of the right of election is effective, whether executed “before or after the marriage of the spouses.” And, perhaps most significantly, EPTL 5-1.2 (a) (1) and (2) provide that, within the meaning and for the purposes of the wrongful death statute, “[a] husband or wife is a surviving spouse” unless, inter alia, “[a] final decree or judgment of divorce, of annulment or declaring the nullity of a marriage . . . was in effect when the deceased spouse died,” or “[t]he marriage was void as incestuous . . . , bigamous . . . , or a prohibited remarriage . . . .”

*99Significantly, although the EPTL has a number of different statutory sources, these particular sections—EPTL 1-2.5, 4-1.1, 5-1.1, 5-1.2 and 5-4.1—all share a common predecessor in the Decedent Estate Law (see EPTL 14-2.1), and therefore call for a consistent reading of the word “spouse.” Clearly, then, the drafters of these EPTL sections contemplated that the word “spouse” would apply only to a person who had been married to the decedent at the time of death, and since the notion of same-sex marriage was largely unknown at the time, the majority is correct in saying that it would have been inconceivable to the drafters that the decedent and the surviving spouse would be of the same sex.

Indeed, even in more recent years, although New York’s Legislature has provided same-sex couples with certain rights and benefits, it has not seen fit to include them in the class of persons entitled to assert a wrongful death claim. For example, in the wake of the attacks of September 11, 2001, and more than two years after Vermont established civil unions, the Legislature declared, inter alia:

“that domestic partners of victims of the terrorist attacks are eligible for distributions from the federal victim compensation fund, and the requirements for awards under the New York State World Trade Center Relief Fund and other existing state laws, regulations, and executive orders should guide the federal special master in determining awards and ensuring that the distribution plan compensates such domestic partners for the losses they sustained” (L 2002, ch 73, § 1).

Subsequently, the Legislature enacted Workers’ Compensation Law § 4 for the specific purpose of providing death benefits to domestic partners of those killed on September 11, 2001 (see L 2002, ch 467, § 1). Indeed, the wrongful death statute itself was amended to lengthen the limitations period for the commencement of actions on behalf of decedents whose deaths were caused by the September 11th terrorist attacks (see EPTL 5-4.1, as amended by L 2003, ch 114, § 1). Yet the Legislature did not see fit to grant unmarried domestic partners the right to maintain an action to recover damages for wrongful death.

Because the wrongful death statute is in derogation of the common law, it must be strictly construed (see Gonzalez v New York City Hous. Auth., 77 NY2d 663, 667 [1991]). Thus, I agree with the majority that the term “spouse” as used in EPTL *1004-1.1 is limited to those persons who were married to a decedent at the time of death and cannot, through statutory construction, be interpreted expansively to include persons like the plaintiff and the decedent here who were partners in a Vermont civil union but were not joined in marriage (see Matter of Cooper, 187 AD2d 128 [1993]).

As an alternative, the plaintiff attempts to invoke principles of equity to secure the right to bring this action. Relying on Braschi v Stahl Assoc. Co. (74 NY2d 201 [1989]), the plaintiff argues that, even if he does not expressly fall within the meaning of “spouse” as used in the EPTL, New York is nevertheless hound by considerations of equity to recognize his right to recover for the decedent’s wrongful death. In Braschi, the Court of Appeals was called upon to interpret a rent-control regulation providing that, upon the death of a tenant, the landlord may not dispossess “either the surviving spouse of the deceased tenant or some other member of the deceased tenant’s family who has been living with the tenant” (id. at 206, quoting 9 NYCRR 2204.6 [d]). Noting that rent-control laws must be interpreted broadly to effectuate their purposes (Braschi v Stahl Assoc. Co., supra at 208), the Court held that the gay life partner of the deceased tenant could, under appropriate circumstances, fall within the meaning of the word “family” (id. at 211).

/ Unlike the noneviction right at issue in Braschi, however, the right to assert a wrongful death claim is a vested property right (see DeLuca v Gallo, 287 AD2d 222, 225 [2001]) that does not exist at common law or in equity. As a creature of statute, it must be founded on statutory authority (see Liff v Schildkrout, 49 NY2d 622, 632 [1980]). Hence, if the plaintiff does not qualify as a “distributee” under the EPTL, he cannot otherwise assert a wrongful death claim under general principles of equity.

The majority appears to conclude that, simply because the plaintiff and the decedent were not married, “the theories of full faith and credit and comity have no application.” It is certainly true that the constitutional requirement of full faith and credit need not be considered here, if for no other reason than that the plaintiff has specifically disavowed reliance on it.4 But the plaintiff and amici do strongly argue that New York is *101bound to afford the plaintiff the right to sue for wrongful death because the doctrine of comity requires recognition of the “spousal rights” he derives from the laws of Vermont. I cannot agree.

A state is never obliged by considerations of comity to surrender its legitimate interests in deference to another state’s policy choices. As the Court of Appeals has explained:

“The doctrine of comity ‘is not a rule of law, but one of practice, convenience and expediency.’ It does not of its own force compel a particular course of action. Rather, it is an expression of one State’s entirely voluntary decision to defer to the policy of another . . . Today in New York the determination of whether effect is to be given foreign legislation is made by comparing it to our own public policy; and our policy prevails in case of conflict” (Ehrlich-Bober & Co. v University of Houston, 49 NY2d 574, 580 [1980] [internal quotation marks and citations omitted]; see also De Rose v New Jersey Tr. Rail Operations, 165 AD2d 42, 44-45 [1991]).

New York has long chosen, as a matter of comity, to recognize a marriage considered valid in the place where it was celebrated, even if it could not have been lawfully entered in this state, provided only that the Legislature has not expressly prohibited New Yorkers from entering the particular kind of marriage, and its recognition would not otherwise be abhorrent to New York’s public policy (see Matter of May, 305 NY 486 [1953]; Moore v Hegeman, 92 NY 521 [1883]; Thorp v Thorp, 90 NY 602 [1882]; Van Voorhis v Brintnall, 86 NY 18 [1881]). The stated purpose of such recognition is “to prevent the great inconvenience and cruelty of bastardizing the issue of such marriages, and to avoid the public mischief which would result from the loose state in which people so situated would live” (Van Voorhis v Brintnall at 26, quoting Haviland v Halstead, 7 Tiff 643, 647 [1866]).

The plaintiff acknowledges, as he must, that he and the decedent never entered a marriage. Nevertheless, he and amici maintain that the same considerations of comity must lead New York to recognize his Vermont civil union inasmuch as there is nothing to suggest that a civil union of same-sex individuals is abhorrent to the public policy of New York (cf. Workers’ *102Compensation Law § 4; Executive Law § 291 [1], [2]; Civil Rights Law § 40-c; 18 NYCRR 421.16 [h] [2]; Matter of Jacob, 86 NY2d 651, 662 [1995]; Braschi v Stahl Assoc. Co., supra; People v Onofre, 51 NY2d 476 [1980], cert denied 451 US 987 [1981]). But recognition of a civil status validly created outside of New York does not necessarily imply that this state will give effect to all of the legal incidents of that status conferred by the foreign jurisdiction that created it. Where those incidents conflict with New York law, our courts will generally decide whether to give them effect by looking to traditional choice-of-law principles.

In Matter of Chase (127 AD2d 415 [1987]), for example, children adopted under the laws of Rhode Island but living in New York sought to inherit from their natural parents. Under New York law, a child’s right to inherit from his or her natural parents is extinguished upon adoption (see Domestic Relations Law § 117 [1] [b]) but the same is not true under the laws of Rhode Island (see RI Gen Laws § 15-7-17).

Ruling that the children could not inherit from their natural parents, the Court wrote:

“While the parties agree that New York, by the law of comity, must recognize [the children’s] status as adopted, even though such status was acquired under the laws of Rhode Island . . . , they disagree concerning which State’s law controls the adjudication of [the children’s] rights as adopted children . . . Even where a status created in another jurisdiction is recognized by a court of this State, all of the incidents which the other jurisdiction attaches to such status need not be recognized . . . [T]he rights of [the children] to inherit must be determined pursuant to New York law. Such result is not unfair here since Rhode Island has no contacts with this case other than the fact that the adoption decree was rendered there. On the other hand, New York was the domicile of decedent and New York has a strong interest in enforcing its statute regarding the inheritance rights of adopted children.” (Matter of Chase, supra at 417; see also Matter of Crichton, 20 NY2d 124 [refusing application of Louisiana community property laws to govern right of New York domiciliary to her deceased husband’s personal property located in Louisiana].)

*103The right to maintain an action for wrongful death is a legal incident of the status conferred by Vermont’s civil union law (see Vt Stat Ann, tit 15, § 1204 [e] [2]). On the question of whether to give that incident effect here, I find it significant that there is no evidence that the plaintiff and the decedent had any contacts with Vermont beyond the fact that their civil union was solemnized there. Moreover, Vermont enacted its civil union law in response to a holding of its Supreme Court that same-sex couples were entitled to legal acknowledgment “as Vermonters who seek nothing more, nor less, than legal protection and security for their avowed commitment to an intimate and lasting human relationship” (Baker v State, supra, 170 Vt at 229, 744 A2d at 889 [emphasis supplied]), and that, under the Common Benefits Clause of the state’s Constitution, committed same-sex couples had the right to the “common benefits and protections that flow from marriage under Vermont law” (170 Vt at 226, 744 A2d at 887 [emphasis supplied]). There was nothing either in the Court’s decision or in the legislation it produced to suggest that Vermont’s concern was other than purely local or that it intended to affect the rights of same-sex couples beyond its own borders. Vermont, therefore, has no legitimate interest in determining whether the plaintiff, a resident of New York, has the right to maintain a wrongful death action against a New York defendant in connection with the death of another resident of New York occurring in this state. Indeed, during virtually all of their lives together, the plaintiff and the decedent resided in New York, and it was in this state that the conduct complained of occurred and the decedent died. Under these circumstances, New York certainly has the most significant contacts with the case and, therefore, the stronger interest in applying the provisions of its own wrongful death law (see e.g. Padula v Lilarn Props. Corp., 84 NY2d 519, 522 [1994]; compare Wooden v Western N.Y. & Pa. R.R. Co., 126 NY 10 [1891] [applying Pennsylvania’s wrongful death statute, which permitted widow to sue in her own name, where death occurred in Pennsylvania]). Accordingly, like the majority, I reject the contention that the doctrine of comity demands that the plaintiff be permitted to sue in New York for wrongful death.

I turn, then, to the area of my disagreement with the majority’s resolution of the appeal.

When a statute affords different treatment to similarly-situated persons on the basis of a constitutionally cognizable characteristic, the disparity of treatment must, at the least, *104bear some rational relationship to a legitimate governmental objective promoted by the statute. As the United States Supreme Court long ago explained:

“It is unnecessary to say that the ‘equal protection of the laws’ required by the Fourteenth Amendment does not prevent the states from resorting to classification for the purposes of legislation . . . But the classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike” (F.S. Royster Guano Co. v Virginia, 253 US 412, 415 [1920]).

Stated otherwise, “[t]he Equal Protection Clause . . . [denies] to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute” (Reed v Reed, 404 US 71, 75-76 [1971]). The question to be addressed, therefore, is whether, considering the purpose and objective of the wrongful death statute, there is some ground of difference that rationally explains the different treatment the statute accords to spouses and partners in a Vermont civil union (see Eisenstadt v Baird, 405 US 438, 447 [1972]).

The purpose of the wrongful death statute is well-defined and firmly established. It is not intended to recompense the survivor for the loss of companionship or consortium, or for the pain and anguish that accompanies the wrongful and unexpected loss of a loved one. It is instead designed solely to make a culpable tortfeasor liable for fair and just compensation to those who, by reason of their relationship to the decedent, suffer economic injury as a result of the decedent’s death (see EPTL 5-4.3 [a]). A person suffers economic injury in this context when the death deprives him or her of a reasonable expectation of future financial assistance or support from the decedent (see Gonzalez v New York City Hous. Auth., supra at 667; Parilis v Feinstein, 49 NY2d 984 [1980]).

The plaintiff argues that, with respect to that objective, the wrongful death statute classifies similarly-situated persons on the basis of their sexual orientation. Sexual orientation is a constitutionally cognizable characteristic, and therefore when legislation is challenged on the ground that it classifies and treats persons differently on the basis of sexual orientation, courts will “insist on knowing the relation between the clas*105sification adopted and the object to be attained” (Romer v Evans, 517 US 620, 632 [1996]). This was so even before the Supreme Court repudiated Bowers v Hardwick (478 US 186 [1986]), which upheld statutes criminalizing homosexual sodomy—the very conduct some saw as defining the class (see e.g. Padula v Webster, 822 F2d 97, 103 [1987]). It certainly is true after the Supreme Court expressly overruled Bowers, recognizing that it “demean[ed] the lives of homosexual persons” “was not correct when it was decided, [and] is not correct today” (Lawrence v Texas, 539 US 558, 575, 560 [2003]).

As to whether the wrongful death statute classifies on the basis of sexual orientation, I recognize that, in 1998, the Appellate Division, First Department, concluded that it did not, rejecting an equal protection challenge to the statute brought by the surviving member of an informal same-sex relationship not sanctioned by any state (see Raum v Restaurant Assoc., supra). The Court wrote:

“[T]he wrongful-death statute (EPTL 5-4.1), which, by its terms (EPTL 1-2.5, 4-1.1, 5-1.2), does not give individuals not married to the decedent (other than certain blood relatives) a right to bring a wrongful-death action, operates without regard to sexual orientation, in that unmarried couples living together, whether heterosexual or homosexual, similarly lack the right to bring a wrongful-death action, and, as such, the statute does not discriminate against same-sex partners in spousal-type relationships” (id. at 370; see also Levin v Yeshiva Univ., 272 AD2d 158 [2000]).

Leaving aside the fact that opposite-sex couples who remain unmarried do so out of choice while same-sex couples have little choice but to remain unmarried, the classification here is not between unmarried opposite-sex couples who choose to live together in an informal arrangement, and unmarried same-sex couples who do the same. The classification at issue here is between couples who enter into a committed, formalized, and state-sanctioned relationship that requires state action to dissolve and, perhaps most important, makes each partner legally responsible for the financial support of the other. For opposite-sex couples, of course, the relationship is marriage, sanctioned and recognized by the State (see e.g. Domestic Relations Law § 14-a), requiring a divorce or annulment to dissolve (see e.g. Domestic Relations Law §§ 140,170), and obligating each spouse *106to provide for the support of the other (see e.g. Family Ct Act § 412; Social Services Law § 101 [1]). And, as relevant here, the relationship for same-sex couples is the Vermont civil union, sanctioned and recognized by the State (see Vt Stat Ann, tit 15, § 1201), requiring a court proceeding to dissolve (see Vt Stat Ann, tit 15 § 1206), and obligating each party to provide for the support of the other (see Vt Stat Ann, tit 15 § 1204 [c]).5

With respect to the objectives of the wrongful death statute, spouses and parties to a Vermont civil union stand in precisely the same position. Marriage creates a legal and enforceable obligation of mutual support (see e.g. Family Ct Act § 412; Social Services Law § 101 [1]), and therefore the death of one spouse causes economic injury to the other because it results in the loss of an expectancy of future support created and guaranteed by law. And, in exactly the same way, because the state-sanctioned Vermont civil union gives rise to a legal and enforceable obligation of mutual support (see Vt Stat Ann, tit 15, § 1204 [c]), the death of one party to the union causes economic injury to the survivor because it results in the loss of an expectancy of future *107support also created and guaranteed by law. Because no statute or authoritative holding in New York now permits or recognizes a marriage except between opposite-sex couples, and because Vermont civil unions are open only to same-sex couples (see Vt Stat Ann, tit 15, § 1202 [2]), the operation here of New York’s wrongful death statute to authorize a party to a marriage to recover damages for the wrongful death of his or her spouse, but not to permit a party to a Vermont civil union to recover damages for the wrongful death of his or her partner, in effect, affords different treatment to similarly-situated persons on the basis of sexual orientation.

The question, then, is whether there is a rational relationship between that disparity of treatment and some legitimate governmental interest or purpose (see Romer v Evans, supra at 631-632; Heller v Doe, 509 US 312, 320 [1993]; Schweiker v Wilson, 450 US 221, 230 [1981]; Matter of Cooper, supra at 134).6 Ordinarily, when constitutional challenges are raised against laws prohibiting same-sex marriage, or laws favoring legal marriages over committed relationships between persons of the same sex, those who defend the challenged provisions do so on the basis of the traditional, religious, cultural, and legal understanding that marriage is the union of one man and one woman, and is the preferred environment for procreation and child-rearing (see e.g. Seymour v Holcomb, 7 Misc 3d 530 [2005]; Matter of Shields v Madigan, 5 Misc 3d 901, 903 [2004]; People v Greenleaf, 5 Misc 3d 337 [2004]; see also Smelt v County of Orange, 374 F Supp 2d 861, 880 [2005]; Lewis v Harris, 378 NJ Super 168, 181-182, 875 A2d 259, 266-267 [2005]; Morrison v Sadler, 821 NE2d 15 [Ind 2005]; Wilson v Ake, 354 F Supp 2d 1298, 1308 [2005]; Goodridge v Department of Pub. Health, 440 Mass 309, 331, 798 NE2d 941, 961 [2003]; Standhardt v Superior Ct., 206 Ariz 276, 285-289, 77 P3d 451, 460-464 [2003]; Baker v State, 170 Vt at 216-219, 744 A2d at 881-882; Adams v Howerton, 486 F Supp 1119, 1124 [1980], affd 673 F2d 1036 [1982], cert denied 458 US 1111 [1982]; Singer v Hara, 11 Wash App 247, 259-260, 522 P2d 1187, 1195 [1974]; Baker v Nelson, 291 Minn 310, 191 NW2d 185 [1971]). Indeed, our own Court has declared that “[t]he institution of marriage as a union of man and woman, uniquely involving the procreation and[ ] rearing of children within a *108family, is as old as the book of Genesis” (Matter of Cooper, supra at 133, quoting Baker v Nelson, supra, 291 Minn at 312, 191 NW2d at 187, appeal dismissed 409 US 810 [1972]; cf. Skinner v Oklahoma ex rel. Williamson, 316 US 535, 541 [1942]). The issue, therefore, 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. Two cases decided by the United States Supreme Court are instructive on this question, and both involve the right to sue for wrongful death.

In Levy v Louisiana (391 US 68 [1968]), the Supreme Court struck down a statute which, because it was construed to authorize only legitimate children to maintain an action for the wrongful death of a parent, precluded five illegitimate children from suing for the wrongful death of their mother. The Supreme Court wrote:

“Legitimacy or illegitimacy of birth has no relation to the nature of the wrong allegedly inflicted on the mother. These children, though illegitimate, were dependent on her; she cared for them and nurtured them; they were indeed hers in the biological and in the spiritual sense; in her death they suffered wrong in the sense that any dependent would” (id. at 72).

And, in the companion case of Glona v American Guarantee & Liability Ins. Co. (391 US 73 [1968]), the Supreme Court struck down the same statute insofar as it was construed to bar a mother from maintaining an action for the wrongful death of her illegitimate child killed in an automobile accident. Here the Court pointedly observed:

“[W]e see no possible rational basis for assuming that if the natural mother is allowed recovery for the wrongful death of her illegitimate child, the cause of illegitimacy will be served. It would, indeed, be farfetched to assume that women have illegitimate children so that they can be compensated in damages for their death. A law which creates an open season on illegitimates in the area of automobile accidents gives a windfall to tortfeasors. But it hardly has a causal connection with the ‘sin,’ which *109is, we are told, the historic reason for the creation of the disability” (id. at 75 [citation omitted]).7

I recognize that

“equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices ... [and that, i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification” (FCC v Beach Communications, Inc., 508 US 307, 313 [1993]; see also Port Jefferson Health Care Facility v Wing, 94 NY2d 284, 290 [1999], cert denied 530 US 1276 [2000]; Barklee Realty Co. v Pataki, 309 AD2d 310, 314 [2003]).

But 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.

Stated otherwise, I simply cannot reasonably conceive of any way in which New York’s interest in fostering and promoting traditional marriage is furthered by a law that determines, based on a person’s sexual orientation, whether he or she may have access to our courts to seek compensation for the loss of a pecuniary expectancy created and guaranteed by law (cf. People v Onofre, supra at 491-492 [statute permitting consensual sodomy between married persons but banning same conduct between unmarried persons bears no rational relationship to *110society’s interest in fostering and promoting marriage]). And, tellingly, the majority’s rejection of the equal protection claim does not include any hint or suggestion of how preventing the plaintiff from asserting a wrongful death claim promotes the State’s interest in fostering the institution of marriage, “thus leaving [its] constitutional analysis incomplete” (Trimble v Gordon, 430 US 762, 769 [1977]). Indeed, the only real effect of the majority’s position is to provide a windfall to a potential tortfeasor.

Accordingly, I respectfully dissent and would hold that the application of New York’s wrongful death statute to deny the right of a surviving member of a Vermont civil union to maintain an action to recover damages for the wrongful death of his or her partner is inconsistent with the right to equal protection of the laws. I would further hold that the proper remedy is to extend the benefit of EPTL 5-4.1 to include the plaintiff as a surviving member of a Vermont civil union (see People v Liberta, 64 NY2d 152, 170 [1984], cert denied 471 US 1020 [1985]; see also Califano v Westcott, 443 US 76, 89-90 [1979]). In my judgment, therefore, the order appealed from should be affirmed insofar as appealed from.

H. Miller, J.P., and Schmidt, J., concur with Lifson, J.; Fisher and Crane, JJ., dissent and vote to affirm the order in a separate opinion by Fisher, J.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the motion which was to dismiss the cause of action to recover damages for wrongful death is granted, the cross motion is denied, and the cause of action to recover damages for wrongful death is dismissed.