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October 9, 1973

Calvin JOHNSON et al., Plaintiffs,
Nelson A. ROCKEFELLER, Governor, State of New York, et al., Defendants

The opinion of the court was delivered by: HAYS

HAYS, Circuit Judge:

This class action challenged the constitutionality of New York Civil Rights Law §§ 79 and 79-a (McKinney's Consol. Laws, c. 6, Supp. 1972) as they stood on the date of argument, March 8, 1973. *fn1" The plaintiffs sought injunctive and declaratory relief against the enforcement of those statutes insofar as they deprived convicted and incarcerated felons of (1) access to the state courts to sue for money damage claims and (2) the right to marry. The named plaintiffs in this suit are all inmates in the Green Haven Correctional Facility in New York State and are serving terms up to and including life imprisonment. All of the plaintiffs except for Butler have claims for either personal injuries or property damage which they were prohibited from prosecuting in the state courts by §§ 79 and 79-a of the New York "civil death" provisions before the recent amendments. Plaintiff Butler, who is serving a life term, has been denied the right to marry -- another aspect of "civil death" -- based upon § 79-a of the state Civil Rights Law.

The New York statutes at issue herein were challenged as being violative of the Fifth, Eighth, Ninth and Fourteenth Amendments as well as 42 U.S.C. § 1983. Jurisdiction was based on 28 U.S.C. § 1343.

 The convening judge, D.C., 58 F.R.D. 42, dismissed the complaint against the State of New York and against Louis Lefkowitz, the Attorney General of the State of New York. He also determined that the class action requirements of Rule 23(a) and (b) (2) of the Federal Rules of Civil Procedure had been met.

 We hold that the action brought on behalf of plaintiffs seeking access to the courts to sue for money damages has been made moot by the recent passage of amendments to §§ 79 and 79-a of the New York Civil Rights Law. See footnote 1. The amendments do not affect the claims of plaintiff Butler and the class he represents. We therefore dismiss as moot the action of all of the plaintiffs except Butler and we proceed to consider whether the ban on marriage applied to prisoners serving life sentences in state prisons in New York under § 79-a is violative of the Constitution of the United States.

 Plaintiff Butler who is serving a life term in the New York State prison system complains that he is denied the right to marry by the civil death provisions of New York State Civil Rights Law § 79-a.

 In actuality the effect of the statute is to deny to Butler only the right to go through the formal ceremony of marriage. Those aspects of marriage which make it "one of the 'basic civil rights of man, '" Loving v. Virginia, 388 U.S. 1, 12, 87 S. Ct. 1817, 1824, 18 L. Ed. 2d 1010 (1967) -- cohabitation, sexual intercourse, and the begetting and raising of children -- are unavailable to those in Butler's situation because of the fact of their incarceration. The statute adds nothing of significance to the effects of such incarceration.

 We can perceive no merit in plaintiffs' claim of denial of equal protection and due process. Insofar as the deprivation of the right to participate in the ceremony of marriage can be considered as imposing punishment in addition to incarceration it is a penalty which is well within New York's power to prescribe. A state has considerable freedom within the limits of the Eighth Amendment in determining what form punishment for crime shall take. Deprivation of physical liberty is not the sole permissible consequence of a criminal conviction. See Green v. Board of Elections, 380 F.2d 445 (2d Cir. 1967), cert. denied, 389 U.S. 1048, 88 S. Ct. 768, 19 L. Ed. 2d 840 (1968) (upholding statute denying convicted felon the right to vote); Fincher v. Scott, 411 U.S. 961, 93 S. Ct. 2151, 36 L. Ed. 2d 681 (1973), aff'g mem., 352 F. Supp. 117 (M.D.N.C. 1972) (3-judge court) (same); Beacham v. Braterman, 396 U.S. 12, 90 S. Ct. 153, 24 L. Ed. 2d 11 (1969), aff'g mem., 300 F. Supp. 182 (S.D. Fla. 1969) (3-judge court) (same).

 Plaintiffs argue that the penological goal of rehabilitation is not served by prohibiting marriage. But it is not for us, whatever our personal views, to choose among the various possible penological goals or to pass upon the wisdom of penal legislation aimed at deterrence or even retribution.

 The state can also rely on its general power over the institution of marriage to justify its ban on the marriage of life-term prisoners. As the Supreme Court has said:

"[The legislature] prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution."

 Maynard v. Hill, 125 U.S. 190, 205, 8 S. Ct. 723, 726, 31 L. Ed. 654 (1888). *fn2"

 The state's interest in marriage surely extends to the power to deny the right to marry to prisoners incarcerated for life who cannot be expected to perform the duties and obligations imposed on a husband by the state's laws relating to marriage, such as, the duty to support wife and children, N.Y. Family Court Act §§ 412, 413 (McKinney Supp. 1972).

 Plaintiff Butler makes a claim under the Ninth Amendment asserting that the prohibition against marriage is violative of his constitutional right of privacy. However, we need not determine the nature of that right or the application to it of the Ninth Amendment because we are here dealing with a situation where the basis of the challenge to state power is the mere formal ceremony of marriage. That ceremony has none of the elements of marital privacy which bring the marriage ...

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