The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


"In Sum, the Problem With [the Same-Sex Marriage Cases] Is That They Recognize Only Two-Person Relationships"

A New York trial court judge concludes that polyamorous relationships are entitled to the sort of legal protection given to two-person relationships.


The decision is yesterday's West 49th St., LLC v. O'Neill, decided by New York Civil Court Judge Karen May Bacdayan. Scott Anderson and Markyus O'Neill lived together in an apartment; Anderson was on the lease, and O'Neill was not. After Anderson died, O'Neill would have had the right to renew the lease if he were "a non-traditional family member," but Anderson was married to Robert Romano. The apartment building company therefore argued that O'Neill was just a roommate, but the court concluded that there needed to be a hearing about whether Anderson, Romano, and O'Neill were actually in a polyamorous relationship:

Before gay marriage was legalized in any state, Braschi v Stahl Assocs. Co. (N.Y. 1989) was decided. The New York State Court of Appeals became the first American appellate court to recognize that a non-traditional, two-person, same-sex, committed, family-like relationship is entitled to legal recognition, and that the nontraditional family member is entitled to receive noneviction protections. The Braschi court interpreted the Rent Control Law in effect at a time when there was no legal recognition of same-sex marriage, and broadly construed the law to effectuate its remedial purposes.

Braschi is widely regarded as a catalyst for the legal challenges and changes that ensued. By the end of 2014, gay marriage was legal in 35 states through either legislation or state court action. Obergefell v Hodges (2015), the seminal Supreme Court decision that established same-sex marriage as a constitutional right, was also heralded as groundbreaking. However, Braschi and its progeny and Obergefell limit their holdings to two-person relationships. The instant case presents the distinct and complex issue of significant multi-person relationships.

The Braschi court held:

"The determination as to whether an individual is entitled to noneviction protection should be based upon an objective examination of the relationship of the parties. In making this assessment, the lower courts of this State have looked to a number of factors, including the exclusivity and longevity of the relationship, the level of emotional and financial commitment, the manner in which the parties have conducted their everyday lives and held themselves out to society, and the reliance placed upon one another for daily family services … These factors are most helpful, although it should be emphasized that the presence or absence of one or more of them is not dispositive since it is the totality of the relationship as evidenced by the dedication, caring and self-sacrifice of the parties which should, in the final analysis, control."

The plurality, perhaps desiring not to go "too far," concluded that "the Legislature intended to extend protection to those who reside in households having all of the normal familial characteristics (emphasis added)." Appellant Braschi should therefore be afforded the opportunity to prove that he and Blanchard had such a household." The dissent[ ]took issue with the plurality's legal analysis and suggested that it unreasonably strained reach its ultimate holding. "… [W]e have no direct evidence of the term's [family] intended scope. The plurality's response to this problem is to turn to the dictionary and select one definition, from the several found there, which gives the regulation the desired expansive construction." However, had the Braschi court not extended itself to interpret the statute to provide noneviction protections to an unmarried same-sex couple, that community would have waited for over 20 years, when gay marriage was legalized in New York, to receive an equal opportunity to maintain housing stability after the death of a partner.

In one of many incremental steps toward the legalization of same-sex marriage, shortly after Braschi was decided the legislature amended the Rent Stabilization Code to add evidentiary factors to be considered when determining whether a person has sufficient emotional and financial commitment to the former tenant of record to qualify for non-eviction protections. These factors, none of which are solely determinative, include, without limitation:

1) "longevity of the relationship;

2) sharing of or relying upon each other for payment of household or family expenses, and/or other common necessities of life;

3) intermingling of finances as evidenced by, among other things, joint ownership of bank accounts, personal and real property, credit cards, loan obligations, sharing a household budget for purposes of receiving government benefits, etc.;

4) engaging in family-type activities by jointly attending family functions, holidays and celebrations, social and recreational activities, etc.;

5) formalizing of legal obligations, intentions, and responsibilities to each other by such means as executing wills naming each other as executor and/or beneficiary, conferring upon each other a power of attorney and/or authority to make health care decisions each for the other, entering into a personal relationship contract, making a domestic partnership declaration, or serving as a representative payee for purposes of public benefits, etc.;

6) holding themselves out as family members to other family members, friends, members of the community or religious institutions, or society in general, through their words or actions;

7) regularly performing family functions, such as caring for each other or each other's extended family members, and/or relying upon each other for daily family services;

8) engaging in any other pattern of behavior, agreement, or other action which evidences the intention of creating a long-term, emotionally committed relationship[.]"

This section further states, "In no event would evidence of a sexual relationship between such persons be required or considered."

Despite the documentary nature of many of the enumerated factors, "absence of documentary evidence does not undermine a succession claim when the totality of the testimonial evidence … establishes the requisite emotional and financial commitment (emphasis added)." …

Why then, except for the very real possibility of implicit majoritarian animus, is the limitation of two persons inserted into the definition of a family-like relationship for the purposes of receiving the same protections from eviction accorded to legally formalized or blood relationships? Is "two" a "code word" for monogamy? Why does a person have to be committed to one other person in only certain prescribed ways in order to enjoy stability in housing after the departure of a loved one? Why does the relationship have to be characterized by "exclusivity"? Why is holding each other out to the community as a family a factor? Perhaps, as in the instant case, the triad has chosen to closet their relationship from others? Perhaps the would-be successor is not "out". Maybe they do not believe their "real" family is open to alternative kinds of relationships. "Holding out" discounts the existence of prejudice and misunderstanding about communities and people that are not "normie." Do all nontraditional relationships have to comprise or include only two primary persons?

Indeed, the Braschi court's referral to "normal familial activities" reveals an intent to limit the application of noneviction protections to someone who can demonstrate a traditional marriage but for their sexual orientation. The Braschi decision, heralded as a radical leap—a discouragingly accurate characterization given the decades that passed before gay marriage was legalized—was still decided in "a relatively narrow and safe context." Paradoxically, the Braschi court's formulation of what comprises a nontraditional relationship is rooted in traditional ideology. {"The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society's traditional concept of 'family' and with the expectations of individuals who live in such nuclear units…".}

However, what was "normal" or "nontraditional" in 1989 is not a barometer for what is normal or nontraditional now. Indeed, the definition of "family" has morphed considerably since 1989. Specifically, many articles have been written about multi-person relationships in recent years, revealing a preference that for some has long been known. For example, a recent article from The New Yorker magazine describes the broadening recognition of such relationships and how these relationships are challenging the norm:

"In February 2020, the Utah legislature passed a so-called Bigamy Bill, decriminalizing the offense by downgrading it from a felony to a misdemeanor. In June [2020], Somerville, Massachusetts, passed an ordinance allowing groups of three or more people who 'consider themselves to be a family' to be recognized as domestic partners….[T]he neighboring town of Cambridge followed suit, passing a broader ordinance recognizing multi-partner relationships. The law has proceeded even more rapidly in recognizing that it is possible for a child to have more than two legal parents. In 2017, the Uniform Law Commission, an association that enables states to harmonize their laws, drafted a new Uniform Parentage Act, one provision of which facilitates multiple-parent recognition. Versions of the provision have passed in California, Washington, Maine, Vermont, and Delaware, and it is under consideration in several other states. Courts in New Jersey, Pennsylvania, Delaware, Texas, Arizona, and Louisiana have also supported the idea of third parents. American conservatism has long mourned the proliferation of single parents, but, if two parents are better than one, why are three parents worse?" { The New Yorker magazine, March 22, 2021 issue, How Polyamorists and Polygamists Are Challenging Family Norms. See also Polyamory and the Law, Harvard Law Today, August 3, 2021, available at}

This begs the question: Should a person who would not meet the requirements for succession to a rent stabilized apartment after Braschi was decided in 1989, now, 33 years later, be evicted when they may qualify, as was the concluded in Braschi, under a more inclusive interpretation of a family?

As stated by the Hon. Jenny Rivera in Green v Esplanade Venture Parthership (N.Y. 2021) [arguing that a person should be able to "recover for the emotional distress caused by perceiving the serious injury or death of any person with whom they shared a strong personal and loving bond," and not just as to a family member -EV], "Scores of cases decided before and after Braschi prove that New York courts are well-equipped to apply a functional mode of analysis in order to identify strong and caring bonds, when the important remedial purposes of New York law so require." Citing to Zimmerman v Burton (N.Y. Civ. Ct. 1980), Judge Rivera notes that "[t]he law must keep abreast of changing moral standards" as the Zimmerman court did in recognizing the tenant succession rights of unmarried partners.

In sum, the problem with Braschi and Obergefell is that they recognize only two-person relationships. Those decisions, while revolutionary, still adhered to the majoritarian, societal view that only two people can have a family-like relationship; that only people who are "committed" in a way defined by certain traditional factors qualify for protection from "one of the harshest decrees known to the law—eviction from one's home."

Those decisions, however, open the door for consideration of other relational constructs; and, perhaps, the time has arrived. As Justice John Roberts foretold in his Obergefell dissent:

"Although the majority randomly inserts the adjective 'two' in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.

It is striking how much of the majority's reasoning would apply with equal force to the claim of a fundamental right to plural marriage…. If not having the opportunity to marry serves to disrespect and subordinate gay and lesbian couples, why wouldn't the same imposition of this disability serve to disrespect and subordinate people who find fulfillment in polyamorous relationships (internal quotation marks and citation omitted)?" …

Here, Mr. Anderson, Mr. Romano, and Mr. O'Neill had a relationship to one another. There was knowledge of all persons about the others and, at least, passive consent, even if they did not all like each other. Was the relationship a "good" one? Mr. Romano describes Mr. O'Neill as "intimidat[ing]," and Mr. O'Neill describes Mr. Romano as "abusive." It seems equally as unimportant as considering sexual relations to delve into the level of happiness in a relationship. Is one stripped of their rights to "marital property" on the basis of having a "bad" marriage? Would noneviction protections not devolve to an emotionally abusive spouse?

Both [O'Neill] and Mr. Romano profess to have loved and cared for Mr. Anderson deeply. Read together, their affidavits imply that Mr. Anderson loved both of them in different ways. The relationship between Mr. O'Neill cannot be dismissed based on the allegations that he did not always contribute to household expenses, or "did not pay his fair share of the rent or household expenses." This may, in fact, indicate a desire on Mr. Anderson's part to provide for Mr. O'Neill. Had Mr. Romano and Mr. Anderson chosen to live together, Mr. Anderson would very likely enjoy noneviction protections. However, they chose to live apart, and [O'Neill] was the one "at home." The existence of a triad should not automatically dismiss [O'Neill]'s claim to noneviction protections. If [O'Neill] could potentially qualify in his own right, it should not be a dispositive factor that another person who does not live in the subject could also qualify if only they lived in the apartment….

The court recognizes the difficulty and potential implications of not interpreting the Braschi court's interpretation of the word "family" as drawing a bright line which must end at what is now considered a traditional dyadic relationship. (The internet is rife with articles bemoaning the estate planning and child custody complications that arise from these new relational constructs.) But, "[w]e just do not know the answers or implications for an exponential number of varied fact situations, so we should do what courts are in the business of doing—deciding cases as best they fallibly can." Accordingly, the court declines to award either party summary judgment….

I should note that in Same-Sex Marriage and Slippery Slopes (2005), I argued that slippage from recognizing same-sex relationships to recognizing polyamorous relationships was unlikely, and I still tentatively think so; and this particular decision is, after all, the decision of just one judge at a relatively low-level court, who is expressly criticizing in part the decisions of the New York high court and the U.S. Supreme Court. Still, I thought the opinion was worth noting.

Here's the summary of the parties' factual arguments:

[The apartment building company] argues that "[O'Neill and Scott Anderson] never comingled their finances or jointly owned real or personal property, held themselves out as a family unit, executed documents formalizing legal obligations, jointly celebrated most major holidays, or attended important events with each other's families." [The company] further states that the deceased tenant of record had a life partner of 25 years and that [O'Neill] is nothing more than a roommate. This statement is supported by the affidavit of Robert Romano …, who avers that he "loved Scott Anderson." They were "life partners" who met 25 years ago, and that "[d]uring the 25 years that [we] shared together, we held ourselves out as a couple, an exclusive couple As support for this, Romano avers that he and the deceased "traveled frequently together, never with Mr. O'Neill." They "considered each other family and incorporated one another into each other's immediate family." Mr. Romano and Mr. Anderson shared cell phone accounts and credit card accounts. Mr. Anderson was the beneficiary of his retirement fund, and he was the beneficiary of Mr. Anderson's retirement fund. "[We] shared good times and bad times together. During his last few years of life, as he battled liver cirrhosis, I was his caretaker." Mr. Romano attaches photographs with a summary sheet detailing "who, what, where, and when the photos were taken." Mr. Romano also attaches a Verizon bill demonstrating a joint account, a bill from a joint TD Bank account, and credit cards under the same account issued to both the deceased and Mr. Romano. They "formed a life together, yet kept [their] own apartments in order to provide [them] comfort and space." Mr. Romano knew about [O'Neill], but they were not friends. "We all grieve the loss of Scott." …

[O'Neill] also recounts his relationship with the deceased. [O'Neill] states that he met Mr. Anderson in 2011. They "hit it off immediately." "After hanging out together" and sharing various activities, they "became more than friends and more than close despite [Mr. Anderson] being in another relationship." When [O'Neill] was searching for a new apartment, Mr. Anderson "immediately offered [him] a room in the subject premises, a one-bedroom apartment, provided that I agreed to keep [their] relationship quiet and discreet." [O'Neill] avers that he "moved in in 2012." [O'Neill] "know[s] all about Robert Romano and his relationship with Scott, and [he] know[s] [Mr. Romano] does not like me." [O'Neill] states that Mr. Anderson spent "substantially more time" with him than with Mr. Romano." He describes a trip they took together to Boston for [O'Neill]'s birthday, where they shared the cost of the train and Spamalot tickets. Mr. Anderson surprised him with two Spamalot goblets "which [he] still cherishes and [has] to this day." [O'Neill] states he was never invited to visit Mr. Anderson's family in Maine where Mr. Anderson traveled several times a year. He would miss Mr. Anderson whenever he was absent, the "late night cocktails and banter, or watching old movies together, or sometimes just falling asleep holding each other then getting up and making breakfast since I love to cook and he loved my cooking." On one of those trips, Mr. Anderson brought [O'Neill] a candle which he keeps on his nightstand "to keep his memory and ours alive and loved." [O'Neill] states that when Mr. Anderson had problems with Mr. Romano, Mr. Anderson would cry on his shoulder, grateful for his love and support, and said that "someday [they would] be able to make [their] relationship official." [O'Neill] states that he provided a "loving, understanding, and forgiving heart to come home to." "When [[O'Neill]] contributed to the household expenses," including rent, he would make those contributions to Mr. Anderson in cash from his tips as a bartender. He often made deposits into what he later discovered to be a joint bank account that Mr. Anderson held with Mr. Romano. Often, he simply gave Mr. Anderson "walking around money" when he asked for it. He "would make the payments … however [Mr. Anderson] requested each month."

Discovery is needed, [O'Neill] urges, to show that he made cash deposits into Mr. Anderson's joint bank account with Mr. Romano, to contribute to household expenses and rent.

In reply, [the company]'s attorney characterizes [O'Neill]'s affidavit as a "fairytale," unsupported by any documents in support of a non-traditional family member succession defense. [The company] contrasts this lack of documentary evidence to that provided by Mr. Romano who does not reside in the premises….