New York State Court of Appeals Judge Victoria Graffeo. | NEW YORK STATE BAR ASSOCIATION
BY PAUL SCHINDLER | As Governor Andrew Cuomo approaches a decision on whether or not to reappoint Judge Victoria Graffeo to another term on the Court of Appeals, the state’s highest bench, the Human Rights Campaign, the nation’s leading LGBT advocacy group, is weighing in.
“We urge you not to reappoint Judge Graffeo and instead select someone who would treat all New York families equally under the law,” Chad Griffin, HRC’s president, wrote in an October 8 letter to the governor.
In stepping up on the question of reappointing Graffeo to the Court of Appeals, HRC joins the LGBT Bar Association of Greater New York, or LeGaL, and the Empire State Pride Agenda, New York’s LGBT rights lobby, in urging a different course on Cuomo.
[Editor's note: On October 17, Governor Andrew Cuomo nominated Justice Leslie E. Stein, a 17-year veteran of the New York court system to succeed Graffeo. Stein currently sits on the Appellate Division's Third Department bench in Albany.]
Appointed to the high court by former Governor George Pataki, Graffeo’s 14-year term ends in November. If re-appointed, she could serve another eight years until she reaches the mandatory retirement age of 70.
Cuomo will choose from a pool of seven candidates, including Graffeo, presented to him by the State Commission on Judicial Nomination.
In his letter to the governor, Griffin cited not only Graffeo’s participation in the four-to-two majority that sunk a marriage equality lawsuit eight years but also a more recent vote involving the parenting rights of a lesbian mom who had been in a civil union with her child’s biological mother.
“In 2006, Judge Graffeo joined the majority opinion against marriage equality for New York's gay and lesbian couples,” Griffin wrote. “While many Americans have evolved on LGBT rights, in 2010 Judge Graffeo declined to recognize a lesbian mom as a full parent despite her legal relationship to the biological mother. Consistently she has shown a lack of respect for constitutional rights afforded to all Americans and instead defers to the legislature on issues that are appropriate subject matter for the courts.”
In an email, Allison Steinberg, communications director at the Pride Agenda, wrote, “We’re in agreement that Graffeo should not be reappointed.”
LeGaL, in its September 15 letter to Cuomo, written by Touro Law Center professor Meredith R. Miller and Janice B. Grubin of the LeclairRyan law firm, noted a particularly egregious problem in Graffeo’s history on LGBT rights issues. In a concurring opinion in the 2006 ruling barring same-sex marriage, Miller and Grubin pointed out, she made what even then seemed like a facetious case for why banning same-sex couples from marrying does not represent anti-gay discrimination –– the fact that “[r]egardless of sexual orientation, any person c[ould] marry a person of the opposite sex.”
In countless court rulings since then, state and federal judges have found that the right to marry means nothing if a person is denied the choice of spouse.
Griffin’s reference, in the HRC letter, to the 2010 lesbian parenting case, apparently intended to shorthand the issues involved, instead may have obscured them. In that case, Debra H. v. Janice R., the non-biological mother of a child born to her civil union partner after they entered into their union in Vermont, sought visitation and custody rights regarding the child. Graffeo joined a unanimous decision finding that the civil union gave that mother parenting rights, rights that would be respected by New York and allow her to proceed with her claims for visitation and/ or custody.
In a concurring opinion, however, Graffeo insisted the civil union was the only ground on which Debra H. could seek to exercise parental rights. She wrote her concurrence, in fact, to specifically reject any legal argument –– available in some jurisdictions –– that Debra H. was, by the nature of her ongoing relationship and responsibilities toward the child in a family setting, a de facto parent with all the rights of a parent. Graffeo argued forcefully to uphold a 1991 precedent that limited standing to claim parenting rights to those who have a biological or adoptive relationship to a child or who were the spouse of the biological mother at the time of the child’s birth.
LeGaL’s letter, also noting that Graffeo “insisted [the 1991 precedent] ‘must be reaffirmed,’’’ argued that “the cost” of that precedent is “permanently denying many parents any further role in the lives of their children, especially those parents without access to the costly advice of lawyers before a child is born.”
Overturning that precedent remains a critical goal of LGBT family advocates.
In another 2010 parenting dispute between two lesbian former partners, who had not gone down the road of either adoption or an out-of-state civil union, Graffeo sided with the court’s minority, concluding that the non-biological mother was a legal stranger to the child, despite the fact that the two women jointly planned the child’s birth using artificial insemination.
Graffeo argued in those cases that parenting rights in situations involving assisted reproductive technology were not for the courts to sort out, but would need to be addressed by the Legislature.
In their letter for LeGaL, Miller and Grubin wrote, “Our community needs jurists on the Court of Appeals who will reject the temptation of easy solutions that ignore the complicated realities characterizing modern family life.”
The group, in fact, recommended that Cuomo avail himself of the opportunity to appoint the first out LGBT member of the Court of Appeals by naming Daniel Alter, who was among the other six candidates presented to him by the Commission on Judicial Nomination. Currently the general counsel at the state’s Department of Financial Services, the 49-year-old Alter was up for an appointment to the federal judiciary in the Southern District of New York in 2010, a nomination that came apart over allegations –– which he denied –– that he had spoken out against use of the words “under God” in the Pledge of Allegiance and in favor of saying “Happy Holidays” rather than “Merry Christmas.”
In a crew of seven candidates, Alter’s chances to win a seat on the bench now are unknown, but the governor’s delay in acting on the question –– his official deadline was last week –– suggests he is not eager to re-nominate Graffeo, one of four judges out of seven appointed by Republican Pataki. LeGaL, for one, would love to see the appointment go to Alter, but for them, HRC, and the Pride Agenda, Cuomo has six chances out of seven to do the right thing.