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MOE v. DINKINS

August 17, 1981

Maria MOE, Raoul Roe, and Ricardo Roe, an infant, by his father Raoul Roe, on behalf of themselves and all other persons similarly situated, Plaintiffs,
v.
David DINKINS, individually, and as City Clerk of New York City, on behalf of himself and all town and city clerks in New York State, and David Axelrod, individually, and as New York State Commissioner of Health, Defendants



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

Plaintiffs Maria Moe, Raoul Roe and Ricardo Roe seek a judgment declaring unconstitutional, and enjoining the enforcement of, the parental consent requirement of New York Domestic Relations Law §§ 15.2 and 15.3 (Section 15). Section 15.2 provides that all male applicants for a marriage license between ages 16 and 18 and all female applicants between ages 14 and 18 must obtain "written consent to the marriage from both parents of the minor or minors or such as shall then be living...." Section 15.3 requires that a woman between ages 14 and 16 obtain judicial approval of the marriage, as well as the parental consent required by Section 15.2.

 This action is now before the court on plaintiffs' motion for summary judgment declaring Section 15 unconstitutional and enjoining its enforcement. Plaintiffs' motion came on for hearing after this case had been remanded to this court by the Court of Appeals for this Circuit. The Court of Appeals reversed this court's initial determination that it should abstain from deciding the constitutionality Section 15 until the statute had been construed by the New York State courts. Moe v. Dinkins, 635 F.2d 1045 (2d Cir. 1980).

 Prior to the hearing on plaintiffs' motion for summary judgment, this court filed a memorandum opinion and order which granted in part plaintiffs' motion to certify a plaintiff and a defendant class. Moe v. Dinkins, No. 80 Civ. 1577 (S.D.N.Y. June 29, 1981).

 
The plaintiff class consists of:
 
persons who wish to marry in New York State but cannot obtain a marriage license or judicial approval to obtain a marriage license because they, or the persons whom they seek to marry, lack parental consent as required by New York Dom.Rel.Law §§ 15.2 and 15.3.

 The plaintiff class is represented by Maria Moe and Raoul Roe.

 
The defendant class consists of:
 
all town and city clerks in New York State.
 
All such clerks are required by New York State law to enforce the parental consent provisions of New York Dom.Rel.Law §§ 15.2 and 15.3.

 The defendant class is represented by David Dinkins, City Clerk of New York City. David Axelrod, New York State Commissioner of Health, is also a defendant in this action.

 Plaintiff Raoul Roe was eighteen years old when this action was commenced. Plaintiff Maria Moe was fifteen years old. Plaintiff Ricardo Roe is their one year old son who was born out of wedlock. Plaintiffs live together as an independent family unit. In late November, 1978, Maria became pregnant by Raoul and in April, 1979, they moved into an apartment together. Maria requested consent from her mother, a widow, to marry Raoul, but Mrs. Moe refused, allegedly because she wishes to continue receiving welfare benefits for Maria. Maria and Raoul continue to be prevented from marrying because of Mrs. Moe's failure to give consent to the marriage as required by Section 15. Maria and Raoul allege that they wish to marry in order to cement their family unit and to remove the stigma of illegitimacy from their son, Ricardo.

 In addition, Cristina Coe and Pedro Doe have moved to intervene as plaintiffs and additional class representatives in this action, pursuant to Fed.R.Civ.P. 24(b)(2), and for an order allowing them to proceed with this action under pseudonyms and without appointment of a guardian ad litem.

 For the reasons discussed below, the motion for intervention is granted. Plaintiffs' motion for summary judgment declaring Section 15 unconstitutional is denied. This court holds that the parental consent requirement of ...


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