On November 23, 1992, Williams removed the state court action, which was then voluntarily dismissed without prejudice. On June 15, 1993, Lambert filed another action in the Supreme Court of the State of New York, which is presumably pending before that court.
On February 22, 1993, Lambert moved to either stay or dismiss the instant action upon various grounds. On March 23, 1993, Williams cross-moved for partial summary judgment arguing that section 516 is unconstitutional. By order dated June 16, 1993, the Court denied the respective motions in order to first address the applicability of the abstention doctrine.
By memorandum opinion and order dated March 2, 1994, the Court stayed the federal action under Railroad Comm'n of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941). See Williams v. Lambert, 844 F. Supp. 963 (S.D.N.Y. 1994). The Court held that, in light of the United States Supreme Court ruling in Clark v. Jeter, 486 U.S. 456, 100 L. Ed. 2d 465, 108 S. Ct. 1910 (1988), the New York Court of Appeals should be afforded an opportunity to reconsider its decision upholding the constitutionality of section 516 in Bacon v. Bacon, 46 N.Y.2d 477, 414 N.Y.S.2d 307, 386 N.E.2d 1327 (1979). On appeal, the Second Circuit vacated and remanded that holding. See Williams v. Lambert, 46 F.3d 1275 (2d Cir. 1995).
Following the remand, the parties appeared for a pre-trial conference on May 16, 1995. At that conference, the Court indicated that it would consider a renewed motion for partial summary judgment by Williams based upon the papers previously submitted.
On remand, the only remaining issue is whether Williams, the mother of an illegitimate child, may seek additional support from Lambert. The Court holds that, notwithstanding the decision in Bacon, supra, Williams's effort to modify the Support Agreement is not and cannot be barred by section 516(c) of the Family Court Act.
Over fifteen years ago, in Bacon v. Bacon, 46 N.Y.2d 477, 414 N.Y.S.2d 307, 386 N.E.2d 1327 (1979), the New York Court of Appeals concluded that because the plain language of section 516 discriminated between legitimate and illegitimate children, an intermediate level of scrutiny must be applied. See Bacon, 46 N.Y.2d at 479. The court recognized that statutory classifications premised upon illegitimacy must be "'substantially related to permissible state interests,'" id. at 479 (quoting Lalli v. Lalli, 439 U.S. 259, 259, 58 L. Ed. 2d 503, 99 S. Ct. 518 (1978)), but concluded that, in light of the "complex and difficult problems of proof" involved in paternity proceedings, section 516 furthered several important state interests. Id. The court also concluded that the statute was "related, in a substantial respect, to [these] permissible and salutary governmental interests" and upheld the constitutionality of section 516. Id.
Since Bacon, however, the United States Supreme Court has consistently struck down statutory classifications based upon illegitimacy. In Mills v. Habluetzel: 456 U.S. 91, 102 S. Ct. 1549, 71 L. Ed. 2d 770 (1982), the Supreme Court held that the State of Texas could not constitutionally provide a one-year statute of limitations in which illegitimate children could establish paternity when such a short period of limitations was not applicable to legitimate offspring.
In Pickett v. Brown, 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199 (1983), the Court held that a two-year period of limitations, although a small improvement over the one-year period involved in Mills, impermissibly limited the opportunity of illegitimate children to obtain support. Most recently, in Clark v. Jeter, 486 U.S. 456, 100 L. Ed. 2d 465, 108 S. Ct. 1910 (1988), the Court struck down a Pennsylvania statute which mandated that paternity suits be brought within six years of an illegitimate child's birth, while not imposing similar restrictions on legitimate children. In Clark, the Court also recognized that "increasingly sophisticated tests for genetic markers permit the exclusion of over 99% of those who might be accused of paternity, regardless of the age of the minor." Clark, 486 U.S. at 465.
In view of these holdings, the Court has every basis to believe that the New York Court of Appeals would conclude that either section 516 is unconstitutional
or that it must be construed in such fashion as to permit an illegitimate child to seek modification of the Support Agreement at issue. This is especially true since that court has already construed similar facially discriminatory statutory classifications in a non-discriminatory manner, thereby preserving their constitutionality.
For example, in People v. Liberta, 64 N.Y.2d 152, 485 N.Y.S.2d 207, 474 N.E.2d 567 (1984), the New York Court of Appeals considered the constitutionality of rape and sodomy statutes. In Liberta, the defendant argued that the statutes proscribing rape in the first degree and sodomy in the first degree, which contain an exemption for marital sex, violated the Equal Protection Clause.
See Liberta, 64 N.Y.2d at 158. The defendant also argued that the rape statute violated equal protection because it did not apply to females. Id.
At the outset, the New York Court of Appeals recognized that the plain language of the rape and sodomy statutes provides a marital exemption, see Liberta, 64 N.Y.2d at 159, 162, and that only males could be convicted under the rape statute, id. at 167. However, the court also concluded that archaic notions concerning consent and marital rights did not provide a rational basis for distinguishing between marital rape and non-marital rape. Id. at 162-67. The court further held that arguments about unwanted pregnancies and the unique medical, sociological and physiological problems of females did not support the gender distinction set forth in the rape statute. Id. at 167-70. The court therefore held that the marital and gender exemptions were not constitutionally permissible if applied literally. Id. at 167, 170.
However, despite having concluded that the facially discriminatory statutes were unconstitutionally underinclusive, the New York Court of Appeals did not strike down either statute. Instead, the court recognized that "when a statute is constitutionally defective because of underinclusion, a court may either strike the statute . . . or extend the coverage of the statute to those formerly excluded." Liberta, 64 N.Y.2d at 170 (citations omitted). The court then proceeded to strike the marital exemption from the rape and sodomy statutes and the gender exemption from the rape statute, thereby maintaining the overall statutory scheme. Id. at 171-72. It is significant that the decision of the New York Court of Appeals in that regard was subsequently found by the Second Circuit to be more generous than the Constitution required. See Liberta v. Kelly, 839 F.2d 77, 81-83 (2d Cir. 1988).
In view of the foregoing, the Court concludes that section 516, as interpreted in Bacon, cannot constitutionally bar Williams's effort to modify the Support Agreement and that the New York Court of Appeals, if presented with that issue, would also so hold. It follows that Williams's motion for summary judgment must be denied.
For the foregoing reasons, the Court concludes that section 516 does not preclude Williams from seeking to modify the Support Agreement and that Williams is therefore entitled to a declaratory judgment with regard to that issue. The parties are hereby directed to appear for a Pre-Trial Conference on November 3, 1995 at 1:00 p.m. in Courtroom 705.
It is SO ORDERED.
Dated: New York, New York
October 24, 1995
John E. Sprizzo
United States District Judge