Petition for Writ of Certiorari — Lynn S. King, Petitioner v. New York, et al.

IN THE

Supreme Court of the United States

LYNN S. KING,

v.

Petitioner,

STATE OF NEW YORK, BY GOVERNOR KATHY

HOCHUL IN CARE OF KATHY HOCHUL, BRUCE

A. HIDLEY, ALBANY COUNTY CLERK, DR. MARY

T. BASSETT, COMMISSIONER OF THE NEW

YORK STATE DEPARTMENT OF HEALTH,

Respondent,

DANIELLE GILLESPIE, ALBANY CITY CLERK,

HENRY S. KING, JR.,

Defendants.

PETITION FOR A WRIT OF CERTIORARI TO

REVIEW THE JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

LEWIS B. OLIVER, JR.

(Counsel of Record for Petitioner)

Oliver Law Office

156 Madison Avenue

Albany, New York 12202

(518) 463-7962

i

QUESTIONS PRESENTED

I

Whether New York Domestic Relations Law

170(7), which permits one spouse to obtain a divorce

based on an affidavit that the marriage relationship

has broken down due to irreconcilable differences for

more than six (6) months, violates the Free Exercise

of religion clause guaranteed by the First

Amendment as applied to a husband and wife who

participated in a religious wedding in which they

both entered into a sacred covenant before God to

remain married until death do us part.

II

Whether petitioner King has standing to bring

a claim that a divorce granted pursuant to Domestic

Relations Law 170(7) violates her right to the Free

Exercise of religion clause guaranteed by the First

Amendment, where during the religious wedding

ceremony both she and her husband entered into a

sacred covenant before God to remain married until

death do us part.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................ i

OPINIONS BELOW ........................................... 1

STATEMENT OF JURISDICTION .................... 1

CONSTITUTIONAL PROVISIONS AND

STATUTES ......................................................... 1

STATEMENT OF THE CASE ............................ 4

REASONS FOR GRANTING THE WRIT ........ 13

POINT I

NEW YORK DOMESTIC RELATIONS LAW

170(7) VIOLATES THE FREE EXERCISE OF

RELIGION CLAUSE GUARANTEED BY THE

FIRST AMENDMENT AS APPLIED TO A

HUSBAND AND WIFE WHO PARTICIPATED

IN A RELIGIOUS WEDDING IN WHICH THEY

BOTH

ENTERED

INTO

A

SACRED

COVENANT BEFORE GOD TO REMAIN

MARRIED UNTIL DEATH DO US PART ....... 13

POINT II

PETITIONER KING HAS STANDING ........... .30

CONCLUSION………………… ......................... 37

iii

APPENDICES

Summary Order of the United States Court

of Appeals for the Second Circuit dated

May 9, 2022 .................................................... …..A1

Summary Order of the United States

District Court, Northern District of

New York dated February 28, 2021 ......................A5

Judgment of Divorce dated

March 12, 2020 ................................................... A13

Decision and Order dated

September 22, 2017………………… .............. …..A18

iv

TABLE OF AUTHORITIES

A.C. v. D.R., 32 Misc.3d 293 ............................................. 9

Cantwell v. Connecticut, 310 US 296 (1940) ....... 19, 20, 35

Espinoza v. Montana Department of Revenue, 593

US ___ (6/20/20) ........................................................ 23, 37

Frontiero v. Richardson, 411 US 677 (1973) .................. 29

Fulton v. City of Philadelphia, 14 SCt. 1868

(7/17/21) ............................................. 14, 15, 20, 30, 31, 32

Hobby Lobby Stores, Inc. v. Burwell, 573 US 682

(2014) .............................................................................. 32

Kennedy v. Bremerton School District,

597 US ___(6/27/22) ........................................................ 36

King v. King...................................................................... 5

Locke v. Davie, 540 US 712 (2004) ................................. 35

Maynard v. Hill, 125 US 190, 205 (1888) ............ 17, 18, 19

McDaniel v. Paty, 435 US 618 (1978) ............................. 35

Obergefell v. Hodges, 756 US 644 (2015)........................ 17

v

Oregon v. Smith, 494 US 872 (1990) ...... 13, 14, 15, 16, 17,

19, 22, 23, 31

Pennoyer v. Neff, 95 US 714, 734-735 (1878) ................. 18

Reed v. Reed, 404 US 71 (1971) ...................................... 29

Russell v. Catherwood, 399 US 936 (1970) ..................... 16

Sherbet v. Verner, 374 US 398 (1963) ...................... 14, 15,

19, 20, 21, 22, 35

Sosna v. Iowa, 419 US 393, 410 (1975) ...................... 18, 24

Stanley v. Illinois, 405 US 645 (1972) ............................ 29

Thomas v. Review Board of Indiana Employment

Security Division, 450 US 707 (1981) ............................. 35

Wisconsin v. Yoder 406 US 205 (1972) ...................... 19, 35

Zablocki v. Redhail, 434 US 374, 398-399 (1978) ........... 18

1

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Second Circuit is not officially

reported but appears at 2022 WL 1451446 (2d Cir

5/9/22) and is reproduced in the Appendix. The

opinion of the United States District Court, Northern

District of New York (Hon. Gary L. Sharpe) is

unreported and is reproduced in the Appendix.

STATEMENT OF JURISDICTION

The petitioner seeks review of the decision of

the United States Court of Appeals for the Second

Circuit by Summary Order rendered on May 9, 2022.

The Supreme Court has jurisdiction under 28 USC

1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES

The First Amendment to the United States

Constitution states as follows:

“Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the Government for a redress of grievances."

New York Domestic Relations Law 170 states

as follows:

“An action for divorce may be maintained by a

husband or wife to procure a judgment

divorcing the parties and dissolving the

marriage on any of the following grounds:

2

(1) The cruel and inhuman treatment of the

plaintiff by the defendant such that the

conduct of the defendant so endangers the

physical or mental well being of the

plaintiff as renders it unsafe or improper

for the plaintiff to cohabit with the

defendant.

(2) The abandonment of the plaintiff by the

defendant for a period of one or more years.

(3) The confinement of the defendant in prison

for a period of three or more consecutive

years after the marriage of plaintiff and

defendant.

(4) The commission of an act of adultery,

provided that adultery for the purposes of

articles ten, eleven, and eleven-A of this

chapter, is hereby defined as the

commission of an act of sexual or deviate

sexual intercourse, voluntarily performed

by the defendant, with a person other than

the plaintiff after the marriage of plaintiff

and defendant. Oral sexual conduct and

anal sexual conduct include, but are not

limited to, sexual conduct as defined in

subdivision two of Section 130.00 and

subdivision three of Section 130.20 of the

penal law.

(5) The husband and wife have lived separate

and apart pursuant to a decree or judgment

of separation for a period of one or more

years after the granting of such decree or

3

judgment, and satisfactory proof has been

submitted by the plaintiff that he or she

has substantially performed all the terms

and conditions of such decree or judgment.

(6) The husband and wife have lived separate

and apart pursuant to a written agreement

of separation, subscribed by the parties

thereto and acknowledged or proved in the

form required to entitle a deed to be

recorded, for a period of one or more years

after the execution of such agreement and

satisfactory proof has been submitted by

the plaintiff that he or she has

substantially performed all the terms and

conditions of such agreement. Such

agreement shall be filed in the office of the

clerk of the county wherein either party

resides. In lieu of filing such agreement,

either party to such agreement may file a

memorandum of such agreement, which

memorandum shall be similarly subscribed

and acknowledged or proved as was the

agreement of separation and shall contain

the following information: (a) the names

and addresses of each of the parties, (b) the

date of marriage of the parties, (c) the date

of the agreement of separation and (d) the

date

of

this

subscription

and

acknowledgment

or

proof

of

such

agreement of separation.

(7) The relationship between husband and

wife has broken down irretrievably for a

period of at least six months, provided that

one party has so stated under oath. No

4

judgment of divorce shall be granted under

this subdivision unless and until the

economic issues of equitable distribution of

marital property, the payment or waiver of

spousal support, the payment of child

support, the payment of counsel and

experts' fees and expenses as well as the

custody and visitation with the infant

children of the marriage have been

resolved by the parties, or determined by

the court and incorporated into the

judgment of divorce.”

STATEMENT OF THE CASE

Petitioner Lynn King is a devout Pentecostal

Christian who was brought up by her parents to

believe that the Bible is God's word and that

Christians must obey the literal words of the Bible.

She met Henry King in 1976, and after dating and

falling in love and courting for approximately a year,

they decided to get married. Lynn King was 22 years

old, and Henry King was 21. [A-35]

Lynn King believes in the Assemblies of God

Church, and she has a sincere and deeply held

religious belief that the marriage vow to remain

together in sickness and in health until death do us

part is a sacred covenant blessed by God which no

man may tear asunder. [A-38-A-40; A-74-A-77].

Lynn King and Henry King were married on

June 18, 1977 by Pastor Melvin Hawthorne,

Chaplain, in the Chapel of All Faiths at the United

Nations headquarters at 777 United Nations Plaza

in New York. The ceremony was a Christian

religious marriage ceremony, and both Lynn and

5

Henry King promised before God to love, honor, and

obey each other and remain as husband and wife in

sickness and in health until death do us part.

When Mr. and Mrs. King were married they

remained together living as husband and wife for

approximately 12 years until 1989. They did not

have any children.

In late 1989 Henry King moved out of the

marital residence on Lawson Lake Road in Feura

Bush, Albany County. They attempted reconciliation

for a short period of time between November 1989

and February 1991, and again from May 1991 to July

1991, and the parties have been physically living

apart from July 1991 to the present. There has never

been a separation agreement between them. [A-36-A37].

In 1993 Henry King commenced an action in

Supreme Court, Albany County, which is known as

King v. King, Albany County Index No. 3952-93,

seeking divorce on the grounds of cruel and

inhumane treatment pursuant to New York

Domestic Relations Law [DRL] 170(1). When Henry

King commenced the divorce action in 1993, the only

grounds for divorce in DRL 170 were based on

several categories of fault or pursuant to a

separation agreement entered into by the parties.

Lynn King opposed the divorce because she believes

that the marriage contract to remain together in

sickness and in health until death do us part is a

sacred oath before God [A-38]. During the trial of the

divorce action, plaintiff Lynn King argued that she

opposed divorce because of her religious beliefs

against divorce which would violate the sacred oath

taken before God for the husband and wife to remain

6

together until death do us part, and because there

was no cruel and inhumane treatment. [A-37].

On April 24, 1999 the Supreme Court, Albany

County (Hon. Stephen A. Ferradino) issued an

Order, after a trial, granting plaintiff Lynn King's

motion for summary judgment and dismissed the

complaint with prejudice on the grounds that the

evidence was legally insufficient to establish cruel

and inhumane treatment. [A-37-A-38; Order of Hon.

Stephen A. Farradino dated April 24, 1999, A-59-A60].

In 2010 the New York State Legislature

enacted an amendment to DRL 170, which added

subdivision (7) that allows divorce based on a

showing that the marriage had irretrievably broken

down for a period in excess of six (6) months. Laws

2010, Chapter 384 effective October 12, 2010. [A-38].

On July 8, 2016 Henry King commenced a

second action for divorce in Supreme Court, Albany

County, known as King v. Kiog under Albany County

Index No. 829-16, seeking divorce on the grounds

that the parties' marriage had irretrievably broken

down for a period in excess of six (6) months

pursuant to Domestic Relations Law 170(7). [A-38;

Verified Complaint dated July 8, 2016, A-62-A-65].

Lynn King's verified answer to the complaint dated

August 10, 2016 opposed any divorce and alleged

that the complaint failed to state a claim for divorce.

[A-38; Verified Answer dated August 10, 2016, A-67A-71].

On December 12, 2016, when she was

representing herself pro se in the divorce action

commenced by her husband, Lynn King wrote a

7

letter to Hon. Michael Melkonian, Acting Justice of

the Supreme Court, stating her opposition to the

divorce based on her religious beliefs. Ms. King's

letter stated:

''As stated before, I am a devout Christian,

don't believe in divorce, uninterested in being

divorced, at this stage of my life. The ''No-Fault'' law

doesn't really fit my situation, so I want my spouse to

prove the allegations. ALSO, enclosed is a document

that states what I believe in and live by.'' (emphasis

in original) [A-74]

Enclosed with the letter to Justice Melkonian

was a statement of the faith entitled Pentecostal

Beliefs on Marriage issued by the Assemblies of God,

the largest Pentecostal Christian denomination in

the world, which Ms. King believes in and lives her

life by [A-75-A-77].

According the Assemblies of God statement of

faith submitted to Justice Malkonian,

''The Assemblies of God maintain that

marriage is a lifelong covenant between and a man

and a woman. The relationship between husband

and wife reflects the relationship of Christ and His

church.'' [A-75] *** ''God intended marriage to be a

permanent union. The man was to depart from his

parents' home in order to be united to his wife, and

… become one flesh with her (Genesis 2:24).'' [A-75]

*** ''Jesus added: ''Therefore what God has joined

together, let man not separate ([Matthew] 19:6).'' [A75] *** ''Marriage is a covenant. It is a solemn

binding agreement made first before God and then

among people in society.'' [A-76] *** ''God hates

divorce. God's attitude toward divorce is nowhere

8

stated more clearly than in Malachi 2:14-16:'' [A-77]

*** ''Divorce was not a part of God's original

intention for humanity. His purposes in marriage are

hindered when the marital covenant is deliberately

broken.'' [A-77] *** ''The partner, or partners,

responsible for breaking the marriage covenant is

guilty of adultery (see Mark 10:11).'' [Pentecostal

Statement of Faith, A-77].

Ms. King told each of the attorneys who

represented her that she was opposed to divorce

because of her deeply held religious belief that

marriage was a sacred vow to remain together as

husband and wife until death do us part. She told

each of the attorneys that she wished to oppose the

divorce based on irreconcilable differences because of

God's teachings. The attorneys told her that religious

beliefs would not be recognized by the New York

courts as a reason to deny the no ... fault divorce, and

each of the attorneys failed to assert her religious

beliefs as a defense in opposition to the divorce.

Nevertheless, plaintiff expressed her deeply held

religious beliefs against divorce directly to the

Supreme Court Justices who presided over the

proceedings at every opportunity she could get.

On November 15, 2017 Supreme Court,

Albany County (Hon. Michael H. Melkonian, Acting

Justice) issued a Decision and Order granting the

defendant Henry King's motion for summary

judgment pursuant to CPLR 3212 and granting Mr.

King's complaint for divorce on the grounds that the

parties' marriage had irretrievably broken down for a

period in excess of six (6) months pursuant to DRL

170(7), and the court ordered that the judgment be

stayed or held in abeyance until issues of equitable

9

distribution,

counsel

fees,

and

costs

and

disbursements of the action were resolved. A-40-A41; Decision and Order granting divorce dated

November 15, 2017, A-79-A-82. In the Decision and

Order, Justice Melkonian stated that Ms. King's

constitutional objections to divorce on the grounds of

irreconcilable differences was unavailing:

''Contrary to counsel's contentions, however,

''suggestions that the party wishing to stay married

has a constitutional right that is being infringed

upon in violation of due process is unavailing.

Staying married, against the wishes of another adult

who states under oath that the marriage is

irretrievably broken, is not a vested right'' (A.C. v.

D.R., 32 Misc.3d 293). [A-81].

On September 12 and 17, 2018 a non-jury trial

was held on the issues of equitable distribution and

maintenance in Supreme Court, Albany County

before Hon. James H. Ferreira. During the trial

Lynn King testified that she was opposed to divorce

based on irreconcilable differences because of her

religious beliefs that marriage was a sacred bond

that lasted until death do us part. [A-41].

At the trial in 2018 before Justice Ferreira,

Lynn King testified she was opposed to the divorce

sought by defendant Henry King on the grounds of irreconcilable differences because of her deeply held

religious belief that she took a vow under oath to God

which she would keep until the day she died, and

that she had opposed the divorce brought by

defendant Henry King in 1999 for the same reason:

''Q: As I understand it, prior to 1999, Mr. King

filed the divorce action?

10

A: Correct.

Q: Is that correct?

A: That's correct.

Q: And was it dismissed?

A: Yes it was.

Q: And I'm assuming·A: Lack of grounds. That's what the thing was.

Q: I'm assuming that it was dismissed because

you contested it?

A: Oh, you bet I did.

Q: Why?

A: That means yes.

Q: Okay. Why did you contest the divorce?

A: I don't believe in divorce. I'm a Christian. I

got married to be married, traditional values. I grew

up in a church. I just don't believe in it, and

especially I took a vow under oath to God, and I'm

going to keep it until the day I die - or somebody

dies.

Q: So would it be fair to say you contested this

divorce?

A: Oh, you bet you.

Q: What were the reasons why you did so?

A: This one?

Q: Yes.

A: The same reason. I don't believe in it.''

[Transcript of matrimonial nonjury trial dated

September 12, 2018 at pages 121-122, [A-42; A-87A-88].

Later in the trial, when asked about her

religious beliefs in opposition to divorce, Ms. King

testified that she was raised as a Southern Baptist

and she followed the teachings of the Assemblies of

God Church and does not believe in divorce:

11

''Q: Now, you had testified earlier that when

asked about why you were opposed to the divorce,

you had stated that you are a Christian and that

you have grown up in the church; is that correct?

A: That is correct and more. I don't believe in

it.

Q: You don't believe in it. What is your

religion, Miss King?

A: I'm Baptist and I was raised Southern

Baptist and I follow the Assembly of God's teachings?

Q: The synagogues?

A: Assembly of God.'' [A-42-A-43; Transcript of

matrimonial nonjury trial dated September 17, 2018

at page 166, A-92)

On April 10, 2019 Ms. King's attorney

submitted proposed Findings of Fact concerning the

trial on issues of equitable distribution and

maintenance to Supreme Court, Albany County

(Hon. James H. Ferreira, Acting Justice). In the

proposed Findings of Fact [at paragraphs 10, 11, and

17] her attorney repeated that Ms. King was opposed

to the action for divorce because of her religious

beliefs: ·

''In that verified answer defendant objected to

and opposed any divorce on the grounds of her

religious beliefs.'' *** ''Again, defendant filed

opposition to the summary judgment motion which

granted this relief [divorce] because she opposed a

divorce on religious grounds.'' *** ''The Court should

recognize that defendant has strong views regarding

the propriety of obtaining a divorce and the fact that

it is contrary to her values and religious beliefs.''

12

On September 12, 2019 Supreme Court,

Albany (Hon. James H. Ferreira, Acting Justice)

issued a Decision and Order After Trial/Findings Of

Fact And Conclusions Of Law concerning equitable

distribution of the marital property. The findings of

fact by Justice Ferreira ignored and did not mention

plaintiff Lynn King's religious beliefs against

divorce. [A-43-A-44; Decision and Order After

Trial/Findings Of Fact And Conclusions Of Law

dated September 12, 2019, A-107-A-129].

On March 12, 2020 in Supreme Court, Albany

County (James H. Ferreira, Acting Justice) issued a

Judgment of Divorce dissolving the parties' marriage

based upon the grounds that the parties' marriage

bas broken down irretrievably for a period in excess

of six months pursuant to Domestic Relations Law

170(7). The Judgment of Divorce incorporated by

reference the Decision and Order of Hon. Michael H.

Melkonian dated November 15, 2017 and entered in

the office of the Albany County Clerk on November

21, 2017, and also incorporated by reference the

Decision and Order After Trial Findings Of Fact And

Conclusions Of Law by Hon. James H. Ferreira

dated September 12, 2019 and entered in the office of

the Albany County Clerk on September 17, 2019. [A44; Judgment of Divorce dated March 12, 2020, A132-A-135]. At the time of the divorce was granted,

both the plaintiff Lynn King and the defendant

Henry King were 64 years old. [A-44].

After the divorce was finalized, Lynn King

filed her complaint in the United States District

Court, Northern District of New York on April 15,

2020 [A-20-A-155]. In her federal court complaint

Ms. King explicitly disavows and waives any interest

13

in the property of Henry King she has or may have

had under the matrimonial laws of New York State,

and disavows and waives any interest she had or

may have had in Mr. King's property, or in support,

maintenance, or other economic or financial interest

or benefit from Henry King. This waiver is effective

under the New York matrimonial law. [A-45-A- 46].

REASONS FOR GRANTING THE WRIT

POINT I

NEW YORK DOMESTIC RELATIONS LAW

170(7) VIOLATES THE FREE EXERCISE OF

RELIGION CLAUSE GUARANTEED BY

THE FIRST AMENDMENT AS APPLIED TO

A

HUSBAND

AND

WIFE

WHO

PARTICIPATED

IN

A

RELIGIOUS

WEDDING IN WHICH THEY BOTH

ENTERED INTO A SACRED COVENANT

BEFORE GOD TO REMAIN MARRIED

UNTIL DEATH DO US PART

The writ of certiorari should be granted in

order to overrule the test in Oregon v. Smith, 494 US

872 (1990), for when the Free Exercise of Religion

clause of the First Amendment requires that strict

scrutiny must be applied to a government statute,

and to establish a new test that provides greater

protection for persons with deeply held religious

beliefs to practice their religion. This is an important

question of constitutional law that has not been, but

should be, settled by the Supreme Court.

Oregon v. Smith overturned decades of

precedents and reduced the protection for persons

asserting Free Exercise of religion claims under

14

many circumstances. Justice Scalia, writing the

majority opinion, held that the balancing test for

when strict scrutiny should apply in Sherbet v.

Verner, 374 US 398 (1963), did not operate to

invalidate a statute that is neutral on its face and

generally applicable. Justice Scalia stated that where

there is a hybrid rights claim, that is a claim which

combines a Free Exercise clause claim in conjunction

with another fundamental constitutional claims such

as Freedom of Speech or of the Press, strict scrutiny

was still the appropriate criterion for constitutional

review. Since the decision in Oregon v. Smith, the

hybrid rights claim has been adjudicated in only two

Supreme Court decisions.

A majority of this Court has already expressed

dissatisfaction with the test announced in Oregon v.

Smith for when strict scrutiny must be applied as not

being protective enough of claims made by religious

persons under the Free Exercise clause. See Fulton

v. City of Philadelphia, 14 SCt. 1868 (7/17/21).

Justice Alito, with whom Justices Thomas and

Gorsuch joined, wrote a concurring opinion that

contains a convincing and devastating logical and

historical attack on the holding in Oregon v. Smith.

Fulton v. City of Philadelphia, supra, 141 SCt. at

1883–1926. Justice Barrett, with whom Justices

Kavanaugh and Breyer joined, wrote a concurring

opinion searching for a replacement for the Oregon v.

Smith test. Id at 1882-1883. Justice Gorsuch, with

whom Justices Thomas and Alito joined, also wrote a

concurring opinion urging reversal of Oregon v.

Smith. Id at 1926-1931. Thus, at least six (6) of the

sitting Justices on this Court believe that Oregon v.

Smith is not protective enough of a citizen’s Free

Exercise of religion and are ready to revisit Oregon v.

15

Smith and strengthen protections for persons with

sincerely held religious beliefs. This case by

petitioner King is an appropriate vehicle for the

Supreme Court to undertake this important task.1

Prior to Oregon v. Smith, the leading case on

when strict scrutiny applied to claims of Free

Exercise of religion was the balancing test in Sherbet

v. Varner, 374 U.S. 396 (1963). The Free Exercise of

religion is a fundamental constitutional value that

both so-called conservative or right leaning jurists

and so-called liberal or left leaning jurists should

want to maximize for citizens in America. See

Russell v. Catherwood, 399 US 936 (1970), the only

case in which Chief Justice Burger and Justice

1 During oral argument of this case in the Second Circuit, Hon.

Guido Calabresi pointed out that, although in Fulton v. City of

Philadelphia a majority of the current sitting Justices

expressed dissatisfaction with test in Oregon v. Smith for

application of strict scrutiny, that the decision in Oregon v.

Smith has not been overruled by the Supreme Court and

therefore is still the law of the land and is binding on the

United States Circuit Courts of Appeals, District Courts, and

state courts, citing Fulton v City of Philadelphia, supra, 141

SCt. at 1887. Petitioner believes Judge Calabresi’s logic is the

reason why Second Circuit granted only six (6) minutes of oral

argument and why the Summary Order did not even address

Mrs. King’s arguments concerning the application of strict

scrutiny to DRL 170(7) which were advanced in her brief below.

See Plaintiff-Appellant Lynn King’s Brief on Appeal, at pp. 14–

18, 25-44; Plaintiff-Appellant Lynn King’s Reply Brief on

Appeal, at pp. 1-21. References to Plaintiff-Appellant Lynn

King’s Brief on Appeal and Plaintiff-Appellant Lynn King’s

Reply Brief on Appeal are to petitioners briefs in the United

States Court of Appeals for the Second Circuit, Docket # 21-780,

copies of which are submitted with this petition.

16

Douglas ever joined in a dissent together. Lynn

King’s petition presents this Court with an

opportunity to resolve the complex issue in Oregon v.

Smith and expand the protections afforded to citizens

of all the numerous different religions in the United

States to put their religion into practice.

It is important to the future of our country,

with the diversity of hundreds of different religions

practiced by our citizens, that this Court should

define and expand the constitutional protection for

citizens seeking to invoke their free exercise of their

religion. This Court has frequently acknowledged

that religious beliefs and practices are emotional

issues close to the heart of many citizens that can

cause stress and conflict between members of

different religions and/or those citizens who do not

profess any religion. It is important that the

Supreme Court define a test for when strict scrutiny

applies to statutes that place a burden on citizens

with deeply held religious beliefs to practice their

religion. Millions of citizens in the United States who

have deeply held religious beliefs may have their

right to exercise their religion infringed until this

Court resolves the issue in Oregon v. Smith.

The founding fathers of our country recognized

that differences in religious faith have stirred strong

emotions and conflicts throughout history, including

the early history of our country. The Free Exercise

clause, the Establishment clause, and the Freedom of

Speech and Press clauses of the First Amendment

were designed by the founders to protect the freedom

of citizens of all different religions to practice their

faith. The concept of the founders was to protect the

rights of diverse religions to exercise their faith and

17

engage in different practices. Until this Court

resolves the issue in Oregon v. Smith, the rights of

all citizens of different religious faiths with deeply

held religious beliefs, as well as the rights of atheists

and agnostics, to practice their religion has been put

on hold.

Differences in religious faith continue to evoke

strong emotions and stir up social conflict in our

country. The recent decision of this Court recognizing

same-sex marriage in Obergefell v. Hodges, 756 US

644 (2015), is an example of the strong emotions and

social disquiet involved in cases where the Free

Exercise of clause is involved. This Court should not

allow rights of citizens to engage in religious conduct

to remain in limbo.

It is a recognized doctrine that certain

constitutional rights under the First Amendment

including freedom of religion are based on long

established fundamental rights in history founded in

the common law, such as the right to marry.

Maynard v. Hill, 125 US 190, 205 (1888). However,

this does not hold true for divorce. There is no

common law of divorce, and this Court has never

held that there is a constitutional right to obtain a

divorce.

At the time of the American Revolution and

the founding fathers there was no common law of

divorce because in England and the colonies the

subject of terminating a marriage was within the

exclusive jurisdiction of ecclesiastical courts. At the

time when America was settled, the power to grant a

divorce in England was exercised by Parliament, not

the common law courts. In order to obtain a divorce,

the English Parliament would have to pass a special

18

law granting a divorce from the bonds of marriage to

specific individuals on a case-by-case basis, and

therefore there was no common law of divorce.

Maynard v. Hill, supra, 125 US at 206; see also

Zablocki v. Redhail, 434 US 374, 398-399 (1978). The

American colonies followed the example of the

English Parliament, and for more than 100 years

before the revolution divorce could be granted only

by a special law for specific individuals by the

legislative assembly of each of the colonies. When

America became independent, the power to grant a

divorce was exercised by the legislatures of each of

the states, and the only way to obtain a divorce was

by a special law granting a divorce to specific

individuals enacted by the legislature of the state in

which the parties resided. Maynard v. Hill, supra,

125 US at 206–207. It became the controlling view

that the subject of divorce was within the exclusive

jurisdiction of the state legislatures, and that state

legislatures, like the English Parliament, had

exclusive jurisdiction over the issue of when people

could get divorced. Maynard v. Hill, supra, 125 US at

206–209; see also Sosna v. Iowa, 419 US 393, 410

(1975); Pennoyer v. Neff, 95 US 714, 734-735 (1878).

Years after the United States became an

independent nation, the state legislatures began to

pass divorce laws of general applicability, similar to

modern divorce laws. Once the parties entered into a

marriage contract by choosing to get married, and

the only way the parties could terminate a marriage

was to comply with the divorce law that had been

enacted by the state legislature in which they

resided. Maynard v. Hill, supra, 125 US at 206–209.

Although many fundamental constitutional rights

are rooted in the history of the English common law

19

which was transplanted into the colonies, the law of

divorce in the United States is different because

there is no common law of divorce in the early

history of our country, and the Supreme Court has

never held that there is a constitutional right to

obtain a divorce. Petitioner’s case presents an

opportunity for this Court to rule on the limits of

states legislatures to enact statutes regulating

divorce and the relationship between divorce and the

Free Exercise and Establishment clauses.

The constitutional test for when a state

statute neutral on its face and general applications

violates the Free Exercise clause needs to be

conclusively decided by this Court. Since Cantwell v.

Connecticut, 310 US 296 (1940), the appropriate test

for whether a state statute, which is neutral on its

face that interferes with or prohibits or penalizes

conduct of citizens based on their sincerely held

religious belief, violates the Free Exercise clause has

been a persistently recurring constitutional problem

that is still unsettled after eighty (80) years. The

constitutional rule on this issue is critical to

realization of freedom of religion in our country, but

the rule adhered to by this Court has shifted over the

decades from Cantwell v. Connecticut, Sherbet v.

Verner, Wisconsin v. Yoder [406 US 205 (1972)], and

Oregon v. Smith. Now, after eight (8) decades, since

Russell Cantwell2 was persecuted for preaching

2

When petitioner’s counsel was 4 years old in 1944, I remember

sitting under the grape arbor while my Mother was holding my

younger brother in her arms when Russell Cantwell walked

down the driveway and began preaching the good news of

Jehovah’s kingdom. Jehovah’s Witnesses go door-to-door and

preach on the streets so that when Jesus returns at the battle of

Armageddon to establish God’s kingdom on earth, no one can

20

God’s word, the recent decision in Fulton v. City of

Philadelphia shows that the issue is still undecided.

As Justice Stewart stated in 1963, it is a duty owed

to the people of the United States, the state

governments, and the nation for the Supreme Court

to define the test when strict scrutiny must be

applied and face up to the dilemma posed by the

conflict between the Free Exercise clause and the

Establishment clause. Sherbet v. Verner, supra, 374

US at 416 (Justice Stewart, concurring).

Petitioner King’s case is an appropriate

vehicle for the Supreme Court to resolve the issue

left hanging Fulton v. City of Philadelphia. It is

uncontroverted that Lynn King, a member of the

Assemblies of God religion, has a sincerely held

religious belief that marriage is until death do us

part. Based on the words of Jesus, the son of God,

petitioner believes that divorce is prohibited because

what God has blessed in a marriage can not be torn

asunder by the laws of man, and that a person who

becomes divorced and then has sexual relations with

another is guilty of adultery and is a sinner. This

religious belief is shared by the members of the

Assemblies of God and by members of other

fundamentalist type Christian religions, including

say they did not have an opportunity to be saved. My Mother

became a convert, and I was brought up as a Jehovah’s Witness.

Brother Cantwell was still being prosecuted for violating local

anti-solicitation laws in some areas of New York state at the

time. These local laws that required a permit to preach were a

point of stress for Russell Cantwell and had a chilling effect on

all of the Witnesses, and whenever we went door-to-door in a

new community we had to check the local ordinances to know

whether we might be arrested. We rightly regarded this as

persecution.

21

many conservative Catholics who do not believe in

divorce.

In Fulton v. City of Philadelphia this Court

unanimously held that the contractual nondiscrimination requirement imposed by the city

government violated the Catholic Social Services

agency’s rights protected by the Free Exercise clause

of the First Amendment. This Court ruled that

“The

contractual

non-discrimination

requirement imposes a burden on CSS’s

religious exercise and does not qualify as

generally applicable***CSS has demonstrated

that the City’s actions are subject to the most

rigorous of scrutiny under those precedents.

[citation omitted]*** A government policy can

survive strict scrutiny only if it advances

‘interests of the highest order’ and is narrowly

tailored to achieve those interests. [citation

omitted]. Put another way, so long as the

government can achieve its interests in a

manner that does not burden religion, it must

do so.” Fulton v. City of Philadelphia, supra,

141 SCt at 1881.

In petitioner’s case the state statute at DRL

170(7) imposes an unconstitutional burden upon

Mrs. King’s religious belief that marriage is until

death do us part and that divorce is a sin. The

impingement on Mrs. King’s practice of her religion

meets both the direct impact test in Sherbet v.

Verner and the hybrid test in Oregon v. Smith for

when strict scrutiny must be applied. Prior to the

enactment of subdivision (7) of DRL 170, Mrs. King

was able to successfully defeat her husband’s efforts

to obtain a divorce. After enactment of subdivision

22

(7) in 2010, Henry King commenced a second divorce

action under the new six (6) month irreconcilable

differences statute and only then successfully

obtained a divorce. This demonstrates that

enactment of the six (6) month irreconcilable

differences statute in subdivision (7) had a direct

coercive impact resulting in Ms. King suffering a

divorce against her deeply held religious beliefs. This

meets the direct impact test in Sherbet v. Verner.

Petitioner King’s case also meets the hybrid

rights test for determining when strict scrutiny

should apply to a Free Exercise of religion claim

announced by Justice Scalia in Oregon v. Smith. The

verbal exchange of marriage vows engaged in by both

Lynn King and Henry King during their religious

marriage ceremony, including the promise to love

honor and obey each other until death do us part,

was a communicative activity protected by the

Freedom of Speech clause of the First Amendment.

Lynn King’s belief that marriage is until death do us

part, and her steadfast opposition to Henry King’s

efforts to divorce her, is conduct or activity protected

by the Free Exercise clause of the First Amendment.

Petitioner King’s exercise of freedom of speech under

the First Amendment during the religious marriage

ceremony combined with her Free Exercise of

religion in resisting a divorce against her religious

belief makes out a hybrid rights case afforded the

protection of strict scrutiny under Oregon v. Smith.

[See Plaintiff–Appellant Lynn King’s Brief on

Appeal, at pp. 30–35]. Since Lynn King’s case meets

both the direct impact and hybrid rights tests, if her

petition is granted review by this Court, her case

should qualify to be decided by application of the

strict scrutiny test.

23

This Court should also grant review in order

to define a precedent for when the Free Exercise

clause and the Establishment clause of Freedom of

Religion in the First Amendment appear to conflict.

In this case the District Court Judge asserted that

recognizing Lynn King’s deeply held religious belief

that marriage is until death do us part would

constitute an establishment of her religion over the

religious beliefs of her husband, Henry King, in

violation of the Establishment clause. [A–13].

The argument made by the District Court

below is an example of the Supreme Court’s current

understanding of the Establishment clause being

used to suppress the Free Exercise of religion, which

has been rightly criticized by Justice Thomas, with

Justice Gorsuch concurring, in Espinoza v. Montana

Department of Revenue, 593 US ___ (6/20/20), 140

SCt at 2246, 2263–2264 (2020) (Justice Thomas,

concurring). Tolerance of different religious practices

by numerous different religions with varying beliefs

and by atheists and agnostics in a diverse society

was the main underlying purpose of Freedom of

Religion as envisioned by the founding fathers.

Instead, the Establishment clause is misused as a

weapon to suppress genuine religious conduct.

The argument that enforcing Lynn King’s

right to exercise her religious belief that marriage is

until death do us part will somehow infringe upon

the rights of Henry King is a strawman. Lynn and

Henry King had the option to be married in a civil

ceremony by a clerk or judge or other civil officer

authorized to perform marriages, but they both

voluntarily and knowingly participated in a religious

ceremony and swore before God to remain married

24

until death do us part. This may be viewed as oldfashioned and outmoded in today’s modern world,

but participating in a religious ceremony with this

holy vow was a choice they both made.

Moreover, while this Court has held that the

Constitution protects the right to marry, the

Supreme Court has never held there is a

constitutional right to divorce. Sosna v. Iowa, supra,

419 US at 407, 419-420 (Justice Marshall,

dissenting); See Plaintiff-Appellant Lynn King’s

Brief on Appeal at pp 25–27. This case was dismissed

in the District Court at the pleading stage without

an answer by the defendant Henry King, without

Henry King having raised a defense that is religious

beliefs would be minimized, without Henry King

raising any defense, without any discovery, and

without any evidence whatsoever that Henry King

actually has any religious beliefs about marriage or

divorce that would be infringed. The summary

dismissal of Lynn King’s religious beliefs is exactly

the type of suppression of the Free Exercise of

religion Justice Thomas castigated Espinosa v.

Montana for devaluating and denying the deeply

held

religious

beliefs

of

devout

religious

practitioners. This petition presents this Court with

an opportunity to address the hostility between the

Free Exercise clause and the Establishment clause

and the extent to which the Establishment clause

can be used as an excuse to deny another person the

right to freely exercise their religious beliefs.

DRL 170(7) can not stand up against review

under the standard of strict scrutiny. The

government of New York has no compelling state

interest in allowing a spouse who was married in a

25

religious ceremony and took the sacred oath of

remaining together until death do us part and who

becomes dissatisfied with the relationship for six (6)

months, to break the contract, and there are less

restrictive means to accomplish the alleged goals of

the statute. The legislative history is far from clear

about what compelling state interest is sought to be

accomplished by enactment of subdivision (7) that

was not met by the other pre-existing grounds for

divorce in DRL170(1)–(6). The suggestions in the

legislative history include protecting victims of

domestic violence, the division of marital assets and

issues of child custody, and the administrative

convenience of making divorce quicker and easier to

process for the state court system. None of these

state interests meet the strict scrutiny test. See

Plaintiff–Appellant Lynn King’s Brief on Appeal at

pp 36–44; Plaintiff-Appellant Lynn King’s Reply

Brief on Appeal at pp. 16-21.

While protecting victims of domestic violence

is a legitimate state interest, DRL 170 (7) will not

protect victims of domestic violence. Domestic

violence between husband and wife, wife and wife,

husband and husband, or other domestic partners

occurs whether the spouses are divorced or not.

Spouses and former spouses may be violent and

abusive whether they are living together or living

apart, whether they are married or not, and whether

they are in the process of divorce or are already

divorced and have contact because of their prior

relationships or responsibilities for parenting

children. It is completely speculative that the speed

with which a judgement of divorce is granted,

whether it be a month or a year, has anything to do

26

with the incidence or frequency of domestic violence

between spouses and partners.

Subdivision (7) also fails to meet the

compelling interest test because, although based on

an affidavit by one spouse who is dissatisfied with

the relationship for more than six (6) months, the

New York statute in fact does not speed up the

process of obtaining a divorce. This is demonstrated

by what happened in petitioner Lynn King’s case.

Henry King was granted his no-fault divorce under

DRL 170(7) in a decision dated November 15, 2017

[A-79-A–82], but under New York divorce procedure

the divorce was held in abeyance until a separate

proceeding before a different judge dealing with

equitable

distribution,

property

issues

and

maintenance, which was decided in a judgment more

than two (2) years later dated March 12, 2020 [A107-A–129]. Although the grounds for divorce are

greatly simplified by subdivision (7), under New

York divorce procedure it took more than two (2)

years for the divorce to be finalized.

If the

compelling interest of the state is to have speedy

divorces for victims of domestic violence, DRL 170(7)

does not accomplish that interest. In fact, disputes

between spouses and partners are more likely to

become bitter and violent over issues such as

maintenance payments, child support, or child

custody and visitation, rather than the divorce itself.

Finally, if minimizing domestic violence was

the rationale for the enactment of subdivision (7),

there are far more narrowly tailored and effective

measures that could be enacted to accomplish that

state interest. The legislature could pass a statute

requiring the courts to expedite divorces based on

27

cruel and inhuman treatment of a spouse or child

under DRL 170 (1), could make evidence of assault or

attempted assault by a spouse on another spouse or

child prima facia evidence of cruel and inhuman

treatment, could allow police reports or medical

records corroborating evidence of domestic abuse to

be prima facia evidence of cruel and inhuman

treatment, and could increase the penalties and

enforcement of stay away orders of protection during

the pendency of divorce proceedings. There are

myriads of other tools government could employ that

would more effectively prevent domestic abuse

without infringing on the deeply held religious

beliefs of those who have taken a solemn oath of

remaining married until death do us part.

Nor does subdivision (7) of DRL 170 serve the

state government’s legitimate interest in settling the

property and financial arrangements and child

custody and visitation issues between married

spouses or partners. The state’s primary interest in

divorce proceedings is the equitable distribution of

property and settlement of financial interests

between the parties, issues of child support, custody

and visitation, and issues of spousal maintenance.

These are the aspects of a marriage that are referred

to as a “civil contract” in which government has a

legitimate interest to be settled.

As a practical matter, New York State

procedure already bifurcates divorce into separate

court proceedings, a divorce proceeding and a

separate proceeding to determine rights with regard

to property and the children. In the divorce between

Lynn King and Henry King, the no-fault divorce was

granted in a divorce proceeding in 2017 before one

28

judge, which was held in abeyance pending equitable

distribution [A–79–A–82], and then there was a

separate proceeding before a different judge dealing

with equitable distribution and property issues more

than two (2) years later which was decided in 2020.

[A–107–A–129].

The state government’s legitimate interest in

settling economic and financial issues and issues

with regard to children in a marriage can be dealt

with in a separate proceeding, as occurred in the case

of Lynn and Henry King. Even if the Kings were to

remain married on account of petitioner Lynn King’s

belief that marriage is until death do us part, the

state’s legitimate interest in settling economic and

financial issues and issues with regard to children

can be satisfied by a separate proceeding specifically

designed to settle these issues, even though the

Kings remain married. As illustrated by what

actually happened in this case, the adjudication of a

divorce between the parties is a completely separate

matter than adjudicating their financial and

economic and children related issues. New York DRL

200 provides that a husband or wife can maintain an

action for separation from bed and board for various

reasons, including cruel and inhuman treatment and

such a judgment of separation can define the

equitable distribution of property and children

related issues between the parties. New York could

provide that in cases where one of the spouses has a

serious religious belief that marriage is until death

do us part, the parties could remain married and

have their property and family issues adjudicated

separately, similar to a judgement of separation

under DRL 200.

29

The only other rationale for enactment of

subdivision (7) mentioned in the legislative history is

judicial convenience or economy by promoting easy

divorces that are quick and simple for the courts to

administer. Based on the Governor’s Memorandum

of Approval, this seems to be the primary motivation

of the State of New York in enacting subdivision (7).

[See A–154–A–155]. Ease of judicial processing is an

insufficient state interest to justify overriding and

nullifying the burden the statute places on the right

to Free Exercise of religion of persons of faith who

believe that marriage is until death do us part and

divorce is a sin. Frontiero v. Richardson, 411 US 677

(1973); Stanley v. Illinois, 405 US 645 (1972); Reed v.

Reed, 404 US 71 (1971). The New York state

government’s

legitimate

interest

in

the

administration of divorce proceedings would be

better served by a more narrowly focused solution,

that is, to fund the state court system with an

adequate number of judges, clerks, security

personnel, stenographers, and courtrooms to render

justice to all of its citizens without violating their

constitutional rights.

An examination of the record in this case

establishes that the legitimate state interest in

settling the economic and financial and children

connected issues in a divorce can be fulfilled by

means more narrowly focused on the government

interests sought to be protected, without coercing a

person who has a sincerely held religious belief that

marriage is until death do us part to violate their

religious practices. Accordingly, DRL 170(7) fails to

meet the high burden of strict scrutiny this Court

has set, and the statute should be declared

unconstitutional as applied to the petitioner.

30

POINT II

PETITIONER KING HAS STANDING

The ruling below by the Second Circuit that

petitioner King lacks standing to assert her claim

that marriage is until death do us part under the

Free Exercise clause, is erroneous and not a viable

excuse for not addressing the merits of petitioner’s

arguments since the decision of this Court in Fulton

v. City of Philadelphia, supra, 141 SCt 1868. Lynn

King has a sincerely held religious belief that

marriage is a once-in-a-lifetime sacred covenant with

God until death do us part. The Second Circuit

summarily disposed of her appeal and avoided

dealing with the merits of her claim by stating

simply that her Free Exercise claim does not allege

that her own particular religious freedoms were

infringed, and that she was not harmed.

In Fulton v. City of Philadelphia the Catholic

Church sponsored Catholic Social Services charity

had a contract with the City of Philadelphia for

decades to provide foster care services for residents

of the city. In line with the beliefs of the Catholic

Church, the Catholic Social Services agency believed

that “marriage is a sacred bond between a man and a

woman”. In order to effectuate its religious belief,

the foster Catholic care agency declined to certify

unmarried couples or same-sex married couples as

prospective foster families to care for orphaned

children. In 2018 the city of Philadelphia decided

that it would not enter a foster care contract with the

agency in the future unless it agreed to certify samesex couples to care for foster children. The city’s

justification was that the Catholic Social Services

policy was discriminatory against same-sex couples.

31

Philadelphia’s argument was that the contractual

terms proposed by the city forbidding discrimination

against same-sex couples as a condition of renewing

the foster care contract was a neutral and generally

applicable policy that did not violate the Free

Exercise clause, citing Oregon v. Smith.

This Court did not rule that the Philadelphia

government’s choice not to contract with Catholic

Social Services because of the charity’s belief that

“marriage is a sacred bond between a man and a

woman” did not harm the agency and therefore

Catholic Social Services had no standing to challenge

the contract. This Court unanimously reached the

exact opposite conclusion:

“… it is plain that the City’s actions have

burdened CSS’s religious exercise by putting it

to the choice of curtailing its mission or

approving relationships inconsistent with its

beliefs.*** And ‘religious beliefs need not be

acceptable,

logical,

consistent,

or

comprehensible to others in order to merit

First Amendment protection.” Fulton v. City of

Philadelphia, supra, 141 SCt at 1876.

In petitioner’s case, Mrs. King was forced to

become divorced and live a life of sin in the eyes of

God because of her belief that marriage is a sacred

covenant until death do us part. The Second Circuit

completely discounted the forced violation of Lynn

King’s religious belief by asserting that the violation

did not burden her religious belief and caused her no

harm, so she had no standing. By ruling that

petitioner had no standing, the Second Circuit

ignored the practical identity of the religious belief

held by Mrs. King (“marriage is until death do us

32

part”) and the religious belief held by the Catholic

charity (“marriage is a sacred bond between a man

and a woman”) which was pointed out in petitioner’s

briefing. See Plaintiff–Appellant Lynn King’s Reply

Brief on Appeal, at pp 1– 4.

It is not logical or sensible or reasonable to

hold that Lynn King has no standing to have the

merits of her claim under the Free Exercise clause

heard when her deeply held religious belief is

violated, while a charitable corporation asserting a

virtually identical claim of violation of the Free

Exercise clause has constitutional Article III

standing. The right of corporations to enjoy the free

exercise of their religious beliefs is well established.

Hobby Lobby Stores, Inc. v. Burwell, 573 US 682

(2014); Fulton v. City of Philadelphia, supra, 141 SCt

at 1876. There is nothing in the Constitution that

allows corporations to enjoy protection under the

Free Exercise clause, while denying protection to an

individual citizen asserting her right to practice a

similar religious belief.

Neither the New York state courts, nor the

District Court, nor the Second Circuit even

addressed the merits of Mrs. King’s Free Exercise

claim because they ignored her constitutional

arguments based on finding she had no standing.

The short shrift given to petitioner King’s claims in

the New York state courts, the District Court and the

Second Circuit, refusing to even address the merits

of her claim, is simply a way of the lower courts to

duck having to rule on a difficult constitutional issue.

But difficult constitutional questions often raise the

most important issues that cry out for an

authoritative decision.

33

In petitioner’s case, the state of New York’s

enactment of subdivision (7) of DRL 170 has

burdened Lynn King’s free exercise of religion by

compelling her to become divorced against her will

and against her deeply held religious belief that

marriage is a sacred covenant until death do us part

and divorce is a sin. Lynn King successfully defeated

Henry King’s efforts to obtain a divorce under New

York’s existing divorce statutes prior to enactment of

subdivision (7). After the 2010 enactment of the nofault quickie divorce in subdivision (7), petitioner’s

husband finally succeeded in tearing asunder the

bond of their marriage.

The enactment of subdivision (7) coerced and

forced Lynn King into a divorce which violated her

religious belief that marriage is a sacred covenant

until death do us part. It is one thing to accord

corporations the right to Free Exercise of their

religious beliefs, but it is a far different matter to

exalt the rights of corporations like Hobby Lobby and

Catholic Social Services over the rights of individual

citizens. To argue that the statute did not harm

Lynn King is disingenuous and bogus and turns a

blind eye to the meaning and importance of religious

practices of ordinary people in this country. By the

decision below, petitioner King has been sentenced to

live a life of sin in the eyes of God.

Mrs. King’s petition would involve this Court

in defining the boundary between the freedom to

believe in one’s religion and the freedom to practice

one’s religion under the Free Exercise clause. The

Summary Order in the Second Circuit avoided

addressing the merits of petitioner’s argument by

relying on a fake artificial distinction between

34

marriage as a religious contract and marriage as a

civil contract, a dichotomy that is nonexistent in the

common law and in real life. Under the view adopted

by the Second Circuit, the Free Exercise of religion

means that a person can hold any religious belief

their imagination can generate as long as that belief

does not get carried into conduct which affects

someone else, but, when a religious belief is

translated into action or conduct which may affect

someone else, then Free Exercise of religion is

limited by statutes and regulations enacted by

government. It is been said that the freedom to

believe in one’s religious doctrine is absolute, but the

freedom to practice or engage in conduct pursuant to

one’s religious beliefs is subject to regulation by the

government.

The distinction between the so-called religious

contract of marriage and so-called civil contract of

marriage is based on an artificial legal contrivance.

A person is free to believe in whatever religious

doctrine one chooses, but governmental statutes and

regulation control the extent to which a person may

engage in action or conduct that is motivated by

religious beliefs. In the case of DRL 170(7),

application of this sophistic distinction eviscerates

petitioner’s right to the Free Exercise of her religion.

As Justice Gorsuch has stated, the Free

Exercise clause recognizes the importance of

protecting religious actions and conduct, not just

religious status, because the First Amendment

“protects ‘freedom to act as’ as well as the’ freedom to

believe’”, citing a line of cases including Cantwell v.

Connecticut, 310 U.S. 296, 303 (1940) (freedom of

Jehovah’s Witnesses to proselytize door-to-door

35

without a license); Wisconsin v. Yoder, 406 US 205

(1972) (freedom of Amish parents not to send their

children to public high school); McDaniel v. Paty, 435

US 618 (1978) (plurality opinion) (freedom of clergy

to serve in the state legislature or constitutional

convention); Locke v. Davie, 540 US 712 (2004)

(freedom to receive government scholarship to

become a member of the clergy); Sherbet v. Verner,

374 US 398 (1963) (freedom of Seventh day

Adventist to receive unemployment benefits even

though she refused to work on Sunday); Thomas v.

Review Board of Indiana Employment Security

Division, 450 US 707 (1981) (freedom of religious

man to resign from his job and still collect

unemployment benefits after he decided he could not

assemble military tank turrets).3 Justice Gorsuch

concluded with this perceptive observations:

"The First Amendment

protects

religious uses and actions for good

reason. What point is it to tell a person

that he is free to be Muslim but he

may be subject to discrimination for

doing what his religion commands,

attending Friday prayers, living his daily

life in harmony with the teaching of his

faith, and educating his children in its

ways? What does it mean to tell an

Orthodox Jew that she may have her

religion but may be

targeted

for

observing her religious calendar? Often

3

The right of a coach to kneel and make a brief private prayer

at the 50 yard line after a football game should be added to the

list. Kennedy v. Bremerton School District, 597 US ___(6/27/22).

36

governments lacked effective ways to

control what lies in a person's heart or

mind. But they can bring to bear

enormous power over what people say

and do. The right to be religious without

the right to do religious things would

hardly amount to

right at all."

Espinosa v. Montana Department of

Revenue, supra, 140 SCt at 22762277(Gorsuch, concurring)(emphasis on

original).

Or, as the Apostle James stated: “…faith without

works is dead”. James 2:17.

The theory adopted by the Second Circuit, that

Lynn King’s freedom to exercise her religion is not

harmed by her being compelled to become divorced

because marriage is both a religious contract and a

civil contract is a metaphysical distinction. To hold

that Lynn King suffered no direct harm by being

compelled to become divorced is to deny her

personhood and her sincerely held religious belief

that marriage is until death do us part, based on the

fiction that marriage is an institution with two

contracts, one religious and one civil, that the two

contracts can be viewed separately under the First

Amendment, and that government statutes and

regulations can trample upon the civil contract

without infringing upon the Free Exercise clause.

Lynn King’s petition should be accepted for

review so this Court can set a decisive precedent

concerning the limits of government statutes and

authority to regulate divorce in the light of the Free

Exercise clause. The alleged divisibility of a solemn

37

religious marriage into a so-called “religious

contract” and a so-called “civil contract” is a fiction

that adopts a schizophrenic viewpoint toward

religion. Sincerely held religious beliefs that can not

be expressed in conduct are meaningless. Lynn King

experiences the impact of living a life of sin in God’s

eyes every day in the conduct of her life. Whenever

she has to complete a government form or

application that asks her marital status, whenever

she meets people or is in conversation, whenever she

is in church or talking with her fellow believers or

minister, or whenever she prays, Mrs. King feels that

she is living a life of sinfulness, and that she will be

judged by God in the light of her sin. The state

government’s claim that this is all harmless and

causes no direct harm ignores the fact that “The

right to be religious without the right to do religious

things would hardly amount to a right at all.”

Espinoza v. Montana Department of Revenue, supra,

140 SCt at 2277 (Justice Gorsuch, concurring)

(emphasis in original).

CONCLUSION

For reasons set forth above, this Court should

grant the petition for a Writ of Certiorari and

schedule the case for plenary review.

38

DATED: Albany, New York

September 27, 2022

Respectfully submitted,

(Counsel of Record for Petitioner)

Oliver Law Office

156 Madison Avenue

Albany, New York 12202

(518) 463-7962

A1

2022 WL 1451446

Only the Westlaw citation is currently available.

United States Court of Appeals, Second Circuit.

Lynn S. KING, Plaintiff-Appellant,

v.

State of NEW YORK, BY Governor Kathy

HOCHUL in care of Kathy Hochul, Bruce A.

Hidley, Albany County Clerk, Dr. Mary T. Bassett,

Commissioner of the New York State Department

of Health, Defendants-Appellees,

Danielle Gillespie, Albany City Clerk, Henry S.

King, Jr., Defendants.*

21-780-cv

|

May 9, 2022

Appeal from an order and judgment of the United

States District Court for the Northern District of

New York (Gary L. Sharpe, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS

HEREBY ORDERED, ADJUDGED, AND DECREED

that the order and judgment of the District Court be

and hereby are AFFIRMED.

Attorneys and Law Firms

FOR PLAINTIFF-APPELLANT: Lewis B. Oliver, Jr.,

Oliver Law Office, Albany, NY.

FOR DEFENDANTS-APPELLEES: Kate H. Nepveu

(Barbara D. Underwood, Jeffrey W. Lang, on the

brief), for Letitia James, Attorney General, State of

New York, Albany, NY, for State of New York, by

Governor Kathy Hochul in care of Kathy Hochul, Dr.

1

A2

Mary T. Bassett, Commissioner of the New York

State Department of Health.

FOR DEFENDANTS-APPELLEES:

Kevin M.

Cannizzaro, Assistant Albany County Attorney,

Albany, NY, for Bruce A. Hidley, Albany County

Clerk.

PRESENT: Guido Calabresi,

José A.

Cabranes, Joseph F. Bianco, Circuit Judges.

SUMMARY ORDER

*1 Lynn King appeals from an order and judgment

dismissing her Complaint pursuant to Rule 12(b)(1)

of the Federal Rules of Civil Procedure for lack of

standing. Ms. King seeks an order declaring null and

void New York’s no fault divorce law, N.Y. Dom. Rel.

L. § 170(7), and the March 12, 2020 judgment of

divorce dissolving her marriage to defendant Henry

S. King, Jr. Ms. King alleges that this law and the

resulting divorce violated her Free Exercise and

Establishment Clause rights by requiring her to

become divorced despite her religious belief in

marriage until death. We assume the parties’

familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

We review the District Court’s judgment de

novo. See Carter v. HealthPort Techs., LLC, 822 F.3d

47, 56 (2d Cir. 2016). Marriage is “a civil contract,

and usually regulated by law.” Reynolds v. United

States, 98 U.S. 145, 165 (1878); see also N.Y. Dom.

Rel. L. 10 (“Marriage ... continues to be a civil

contract....”). In regulating marriage, New York may

provide “grounds for its dissolution” under the law.

Maynard v. Hill, 125 U.S. 190, 205 (1888). Because

2

A3

Ms. King alleges only the termination of a civil

contract, she has not plausibly alleged that the civil

judgment of divorce entered against her “sever[ed]

the holy marriage covenant made before God,”

Compl. ¶ 58, or “chang[ed] her status under ... the

laws of God,” id. ¶ 61.

As a result, Ms. King lacks standing to bring a

Free Exercise claim because she does not “allege that

her own particular religious freedoms [were]

infringed.” Altman v. Bedford Cent. Sch. Dist., 245

F.3d 49, 71 (2d Cir. 2001) (citation and internal

quotation marks omitted); see also Melki v. Melki,

No. 744, Sept. Term, 2019, 2020 WL 5797869, at *5

(Md. Ct. Spec. App. Sept. 29, 2020) (“Because a trial

court granting a divorce merely dissolves a civil

contract between the spouses, courts universally hold

that no-fault divorce statutes do not infringe on the

right to the free exercise of religion, even if a spouse’s

religious beliefs prohibit no-fault divorces.”). Ms.

King lacks standing under the Establishment Clause

for substantially the same reason: she has not

alleged “direct harm” arising from the claimed

establishment of religion. Montesa v. Schwartz, 836

F.3d 176, 195 (2d Cir. 2016).

We have reviewed all of the remaining

arguments raised by Ms. King on appeal and find

them to be without merit. For the foregoing reasons,

we AFFIRM the February 26, 2021 order and

judgment of the District Court.

Footnotes

* The Clerk of Court is directed to amend the caption as set

forth above.

3

A4

All Citations

Not Reported in Fed. Rptr., 2022 WL 1451446

4

A5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________

LYNN S.

KING,

1:20-cv-440

Plaintiff,

(GLS/CFH)

v.

STATE OF NEW YORK et al.,

Defendants.

____________________________________

SUMMARY

ORDER

Plaintiff Lynn S. King (hereinafter “L. King”)

commenced this action against defendants State of

New York,1 Dr. Howard A. Zucker, the Commissioner

of the New York State Department of Health

(hereinafter “State defendants”), Bruce A. Hidley,

the Albany County Clerk, and Henry S. King, Jr.

(hereinafter “H. King”), alleging that New York State

Domestic Law (DRL) § 170(7), which permits divorce

on the grounds that a marriage has been

irretrievably broken for a period of at least six

months, is unconstitutional on its face and as applied

to her. (See generally Compl., Dkt. No. 1.)

Specifically, she claims that DRL § 170(7) violates

the Free Exercise and Establishment Clauses of the

1

Despite mentioning Governor Andrew M. Cuomo in the caption

of her complaint, L. King agrees with State defendants that

Cuomo is not a party to this action. (Dkt. No. 26, Attach. 1 at

3-4; Dkt. No. 36, Attach. 1 at 34.)

1

A6

First Amendment by infringing upon her religious

belief that marriage is permanent and cannot be

undone by the State. (Id.)

Now pending are State defendants’ and

Hidley’s2 motions to dismiss. (Dkt. Nos. 26, 30.) For

the reasons that follow, the motions are granted, and

King’s complaint is dismissed.3

I. Background4

L. King, a Pentecostal Christian, married her

ex-husband, H. King, at a Christian ceremony in

2

Hidley adopts and incorporates by reference all of the

arguments made by State defendants that are noted in this

Summary Order. (Dkt. No. 30, Attach. 6 at 3-4.) Accordingly,

any mention of an argument made by State defendants herein

should be interpreted as an argument advanced by State

defendants and Hidley.

3

Notably, the theory under which L. King brings a claim against

H. King, and, thus, how H. King is a state actor or conspired

with state actors to deprive L. King of her constitutional rights,

is not at all clear. Nevertheless, although H. King did not seek

dismissal, for the reasons stated herein, all claims against him

must also be dismissed. See Cohen v. Experian Info. Sols., Inc.,

No. 20-cv-3678, 2021 WL 413494, at *3 (E.D.N.Y. Feb. 5, 2021)

(“[W]hen some but not all of the defendants move to dismiss and

the court determines that the plaintiff lacks standing, the court

may dismiss the claims against the non-moving parties sua

sponte.” (citations omitted)); Crispin v. Westchester Cty., No. 18

CV 7561, 2019 WL 2419661, at *1 n.3 (S.D.N.Y. Jun. 10, 2019)

(“The County Defendants did not move to dismiss or otherwise

respond to the complaint. Nevertheless, for the reasons stated

in this Opinion and Order, all claims against the County

Defendants must also be dismissed.” (citation omitted)).

4

The facts are drawn from L. King’s complaint, (Dkt. No. 1), and

presented in the light most favorable to her.

2

A7

New York, New York. (Compl. ¶¶ 20, 23-24.) L. King

and H. King “promised before God” to remain

married until death do them part. (Id. ¶ 24.) As a

self-proclaimed “devout” Christian, she believes that

the Bible, which forbids divorce, ought to be taken

literally, and, thus, believes that divorce is a sin that

breaks “a sacred covenant with God to remain

together until death do [you] part.” (Id. ¶¶ 20, 43,

90.) Indeed, L. King has a sincere and deeply held

religious belief that marriages are promises to God

and cannot be undone. (Id. ¶ 27.)

In 1993, H. King filed for divorce based on

cruel and inhumane treatment. (Id. ¶ 34.) L. King

challenged the divorce and ultimately prevailed in

state court, as the court found that H. King failed to

prove such cruel and inhumane treatment. (Id. ¶¶

35, 37-38.) At the time when H King commenced the

1993 divorce action, married couples could only

divorce pursuant to one of several enumerated

categories of fault. (Id ¶ 36.)

In 2010, the State of New York enacted DRL §

170(7), which permits no-fault divorces for marriages

that have been “irretrievably broken” for a period of

at least six months. (Id. ¶ 39.) Pursuant to § 170(7),

H. King filed for divorce again in 2016, and L. King,

again, challenged it. (Id. ¶¶ 40-41.) Supreme Court

in Albany County ultimately entered a judgment of

divorce in 2020. (Id. ¶ 53.) L. King filed her

complaint shortly thereafter. (Compl.)

II. Discussion

State defendants and Hidley moved to dismiss,

arguing that L. King does not have standing to

3

A8

pursue her claims, and that, even if she did have

standing, the complaint fails to state a claim

pursuant to the Free Exercise Clause or the

Establishment Clause.5 (Dkt. No. 26, Attach. 1 at 513; Dkt. No. 30, Attach. 6 at 3-4.)

First, the issue of standing must be addressed.

See Congregation Rabbinical Coll. of Tartikov, Inc. v.

Vill. of Pomona, 945 F.3d 83, 109 (2d Cir. 2019).

Standing requires proof that the plaintiff has “(1)

suffered an injury in fact, (2) that is fairly traceable

to the challenged conduct of the defendant, and (3)

that is likely to be redressed by a favorable judicial

decision.” Id. (citations omitted). “An injury in fact

sufficient to confer standing is ‘an invasion of a

legally protected interest’ that is ‘concrete and

particularized’ and ‘actual or imminent, not

5

L. King attaches two affidavits to her opposition brief,

and asks the court to convert the motions to dismiss into

motions for summary judgment. (Dkt. No. 36 at 2, 6.)

Because discovery has not yet commenced in this case,

among other reasons articulated by State defendants,

(Dkt. No. 41 at 2-4), the court sees no reason to convert

the motions into summary judgment motions, and, in its

discretion, has disregarded the extrinsic evidence

submitted by L. King. See Fed. R. Civ. P. 12(d);

McLoughlin v. Powers, No. 5:17-cv-1070, 2018 WL 2170287,

at *2 (N.D.N.Y. May 10, 2018) (“It is well established that

district courts have ‘complete discretion’ in determining

whether to accept materials outside the pleadings and

convert a motion [to dismiss] into a motion for summary

judgment.” (citation omitted)); Madu, Edozie & Madu,

P.C. v. SocketWorks Ltd. Nigeria, 265 F.R.D. 106, 124

(S.D.N.Y. 2010) (“The Court also declines to convert the

instant motion into a motion for summary judgment

since discovery has not yet commenced.” (citation

omitted)).

4

A9

conjectural or hypothetical.’” Id. (citation omitted).

“To have standing to pursue a claimed

violation of the Free Exercise Clause, a plaintiff must

allege that her own particular religious freedoms are

infringed.” Altman v. Bedford Cent. Sch. Dist., 245

F.3d 49, 71 (2d Cir. 2001) (internal quotation marks

and citation omitted). And to have standing to bring

an Establishment Clause claim, a plaintiff must show

standing under one of the following theories: (1)

taxpayer, (2) direct harm, or (3) denial of benefits.

See Montesa v. Schwartz, 836 F.3d 176, 195-96 (2d

Cir. 2016).

State defendants argue that L. King lacks

standing to pursue her claims because she does not

have a constitutional right to remain married, and

because there is “a distinction between the

dissolution of an individual’s legal marriage

relationship pursuant to State law and the

individual’s religious marriage.” (Dkt. No. 26,

Attach. 1 at 5-9.) In response, L. King contends that

she has suffered an injury in fact and direct harm

from DRL § 170(7), because, as a devout Christian,

the law has forced her to live in “sin” and face great

“shame,” and because it infringes upon her

constitutional right to marry. (Dkt. No. 36, Attach. 1

at 5-21.) The court agrees with State defendants.

As argued by State defendants, (Dkt. No. 41 at

5), L. King’s argument that H. King does not have a

constitutional right to divorce misses the point

entirely. The issue is not whether there exists a

constitutional right to divorce; rather, it is whether

DRL § 170(7) infringes upon her constitutional

rights. And it does not, because an individual does

5

A10

not have a right to remain married to another adult

against his or her will.

Although it does not appear that federal courts

have reached the issue of whether an individual has

a right to remain married against their partner’s

will, the New York State courts that have reached it

in the context of DRL § 170(7) have found there to be

no such right. See A.C. v. D.R., 32 Misc. 3d 293, 30506 (Sup. Ct. Nassau Cty. 2011) (“It has often been

said that marriage is a partnership. There can be no

such thing as an indissoluble partnership. . . .

Suggestions that the party wishing to stay married

has a constitutional right that is being infringed

upon in violation of due process is unavailing.

Staying married, against the wishes of the other

adult who states under oath that the marriage is

irretrievably broken, is not a vested right.” (citation

omitted)); Townes v. Coker, 35 Misc. 3d 543, 548- 49

(Sup. Ct. Nassau Cty. 2012) (same); Palermo v.

Palermo, 35 Misc. 3d 1211(A), 1211 n.7 (Sup. Ct.

Monroe Cty. 2011), aff’d, 100 A.D.3d 1453 (4th Dep’t

2012) (same).

Indeed, an opposite finding, i.e., a finding that

H. King must remain married against his will

because of L. King’s religious convictions would defy

all logic and reason, and create a much larger

Establishment Clause issue than the one L. King

argues exists today. See Maghu v. Singh, 206 Vt.

413, 427 n.7 (2018) (“We reject wife’s argument that

the court’s grant of a no-fault divorce . . . impinges on

wife’s free exercise of religion. . . . Quite the opposite,

it would be constitutionally problematic, to say the

least, if we began to decline access to a divorce from

an otherwise qualified domiciliary on the basis of the

6

A11

religious convictions of the other party.”); Sharma v.

Sharma, 8 Kan. App. 2d 726, 727 (1983) (“[T]o compel

[the husband] to remain married because of the

wife’s religious beliefs would be to prefer her beliefs

over his. Any such preference is prohibited by the

Establishment Clause of the First Amendment.”);

Melki v. Melki, No. 744, Sept. Term, 2019, 2020 WL

5797869, at *5 (Md. Ct. Spec. App. Sept. 29, 2020)

(“[I]t might well violate the Establishment Clause of

the First Amendment to compel Wife to remain

married to Husband because of Husband’s religious

beliefs, for the court would then be preferring one

spouse’s beliefs over the other spouse’s.” (citation

omitted)).

Moreover, as argued by State defendants, (Dkt.

No. 26, Attach. 1 at 6-9), there is no constitutional

injury here for the independent reason that the

divorce that gave rise to this litigation only dissolved

L. King’s and H. King’s legal marriage recognized by

the State of New York; the divorce did not affect the

status of their “religious marriage.” See Pankoe v.

Pankoe, 222 A.3d 443, 449-50 (P.A. 2019) (finding

that a state law permitting no-fault divorces did not

violate the husband’s First Amendment rights,

because the divorce only dissolved the civil contract of

marriage between the parties, and the husband

could believe that “in the eyes of God,” he was still

married to his wife); Masri v. Masri, 55 Misc. 3d 487,

498 (Sup. Ct. Orange Cty. 2017) (“The state may

allow civil divorce, even though one spouse objects to

the decree on the basis of religious conviction and

even though a religious divorce cannot be or has not

been obtained.” (citation omitted)).

L. King’s arguments to the contrary are

7

A12

unavailing. No amount of shame or a feeling that

she is living in sin can change the fact that, as

explained above, no constitutional right is implicated

by H. King taking advantage of a no-fault divorce

permitted by DRL § 170(7). Accordingly, based on

the foregoing, L. King has not suffered a

constitutional injury in fact or any direct harm from

DRL § 170(7), and, thus, she lacks standing. See

Altman, 245 F.3d at 71; Montesa, 836 F.3d at 195-96.

V. Conclusion

WHEREFORE, for the foregoing reasons, it is

hereby

ORDERED that State defendants’ motion to

dismiss (Dkt. No. 26) is

GRANTED; and it is further

ORDERED that Hidley’s motion to dismiss

(Dkt. No. 30) is

GRANTED; and it is further

ORDERED that L. King’s complaint (Dkt. No.

1) is DISMISSED; and it is further

ORDERED that the Clerk close this case; and

it is further

ORDERED that the Clerk provide a copy of

this Summary Order to the parties.

IT IS SO ORDERED.

8

A13

/S

Gary L. Sharpe

U.S. District Judge

February 26, 2021

Albany, New York

9

A14

At a term of the Supreme Court

of the State of New York, held in

and for the County of Albany, at

the Albany County Courthouse,

Albany, New York, on the 12th

day of March, 2020

PRESENT: HON. JAMES H. FERREIRA

ACTING SUPREME COURT JUSTICE

STATE OF NEW YORK

SUPREME COURT

COUNTY OF ALBANY

____________________________________

HENRY S. KING

Plaintiff,

JUDGMENT OF DIVORCE

v.

LYNN S. KING

Index No. 829-16

RJI No. 01-16-120395

Defendant.

____________________________________

The action was submitted to this court for

consideration this date.

The Defendant was served personally within

the State of New York.

Plaintiff presented a Verified Complaint dated

July 8, 2016. The Plaintiff alleged, in his Verified

Complaint that, to the best of his knowledge, he has

taken or will take, prior to the entry of final

Judgment, all steps solely within his power to

remove any barrier to the Defendant's remarriage

following the divorce. The Defendant answered the

1

A15

Complaint by Verified Answer dated August 10,

2016.

Pursuant to Decision and Order dated

November 15, 2017 and duly entered on November

21, 2017, the Court (Hon. Michael H. Melkonian,

ASCJ) granted Plaintiff's motion seeking Summary

Judgment for Divorcet with said Judgment to be held

in abeyance pending resolution of all financial and

ancillary issues.

The Court accepted written proof of nonmilitary service.

The Plaintiff’s address is 27 Grandview

Terrace, Albany, New York 12202 and his Social

Security Number is 204-46-8539. The Defendant’s

address is 1 Laweson Lake Road, Feura Bush, New

York 12067 and her Social Security Number is 08346-1054.

NOW, by Decision and Orders of the Court

dated November 21, 2017 and September 12, 2019, it

is hereby

ORDERED AND ADJUDGED, that Plaintiff

shall have judgment dissolving the marriage,

pursuant to the Decision and Order of Supreme

Court (Hon. Michael H. Melkonian, ASCJ) dated

November 15, 2017 and entered November 21, 2017

based upon the ground that the parties’ marriage has

broken down irretrievably for a period in excess of

six months pursuant to DRL § 170 subdivision (7);

and it is further

ORDERED

AND

ADJUDGED,

2

that

the

A16

Decision and Order of Supreme Court (Hon. Michael

H. Melkonian, ASCJ) dated November 15, 2017 and

entered on November 21, 2017 shall be incorporated

herein, a copy of which is attached hereto and made

a part hereof as Exhibit “A”.

ORDERED AND ADJUDGED, that the

Decision and Order After Trial/Findings of Fact and

Conclusions of Law dated September 12, 2019 and

entered on September 17, 2019 shall be incorporated

herein, a copy of which is attached hereto and made

a part hereof as Exhibit “B” and the parties are

directed to comply therewith; and it is further

ORDERED AND ADJUDGED, that pursuant

to DRL § 255, each party is hereby notified that upon

entry of Judgment herein, each party may or may

not be eligible to be covered under the other party’s

health insurance plan, depending on the terms of

plan; and it is further

ORDERED AND ADJUDGED, that any

applications brought in Supreme Court to enforce or

modify the provisions of this Judgment shall be

brought in a County wherein one of the parties

reside; provided that if there are minor children of

the marriage, such applications shall be brought in a

County wherein one of the parties or the child or

children reside, except, in the discretion of the judge,

for good cause. Good cause applications shall be

made by motion or order to show cause. Where the

address of either party and any child or children is

unknown and not a matter of public record, or is

subject to an existing confidentiality order pursuant

to DRL § 254 or FCA § 154-b, such applications may

be brought in the County where the Judgment was

3

A17

entered; and it is further

ORDERED AND ADJUDGED, that pursuant

to the parties’ settlement agreement dated N/A or

the court’s decision after trial, all parties shall duly

execute all documents necessary to formally transfer

title to real estate or co-op shares to the Plaintiff or

Defendant as set forth in the parties’ Settlement

Agreement or the Court’s decision after trial,

including without limitation, an appropriate deed or

other conveyance of title, and all other forms

necessary to record such deed or other title

documents (including the satisfaction or refinance of

any mortgage if necessary) to convey ownership of

the property located at N/A no later than N/A or N/A;

and it is further

ORDERED AND ADJUDGED, that the record

in this action shall be sealed by the Clerk in

accordance with the provisions of Section 235(1) of

the Domestic Relations Law, and it is further

ORDERED AND ADJDUGED, that either

party may resume the use of a pre-marriage name.

Dated: March 12, 2020

Albany, New York

/S

HON. JAMES H. FERREIRA

ACTING SUPREME COURT JUSTICE

ENTER

4

A18

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________

HENRY S. KING

Plaintiff,

DECISION

v.

AND

ORDER

LYNN S. KING

Defendant.

____________________________________

(Supreme Court, Albany County, Motion Term,

September 22, 2017)

Index No. 829-16

(RJI No. 01-16-120395)

(Acting Justice Michael H. Melkonian, Presiding)

APPEARANCES: Young, Fenton, Kelsey

& Brown, P.C.

Attorneys for Plaintiff

(Andrea L. Kelsey, Esq., of Counsel)

1881 Western Avenue

Suite 40

Albany, New York 12103

Kriss, Kriss & Brignola, LLP

Attorneys for Defendant

(Dominick J. Brignola, Esq., of Counsel)

350 Northern Boulevard

Suite 306

Albany, New York 12204

1

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MELKONIAN, J.:

Plaintiff Henry S. King (the "Husband") moves

pursuant to CPLR § 3212 for summary judgment on

the ground that the parties' marriage has broken

down irretrievably for a period in excess of six

months. The Husband further seeks to hold the

judgment in abeyance until the issues of

maintenance, equitable distribution, counsel fees,

costs, and disbursements have been resolved as

'required by statute (see, Domestic Relations Law

["DRL"] § 170[7]).

On a motion for summary judgment, the

movant must establish by admissible proof, the right

to judgment as a matter of law (Alvarez v. Prospect

Hospital, 68 NY2d 320); Gilbert Frank Corp. v Fed

eral Insurance Co., 70 NY2d 966). It is well

established that on a motion for summary judgment,

the court's function is issue finding, not issue

determination (Sillman v. Twentieth Century-Fox

Film Corp., 3 NY2d 395), and all evidence must be

viewed in the light most favorable to the opponent to

the motion (Davis v. Klein, 88 NY2d 1008; Crosland

v. New York City Transit Auth., 68 NY2d 165).

.Summary judgment may be granted on the issue of

grounds for a divorce (see, Wiecek v. Wiecek, 104

AD2d 935).

As this action was commenced after October

12, 2010, the Court may grant a judgment of divorce

if one party states under oath that the marriage has

broken down irretrievably for a period of at least six

months (see, DRL § 170[7]). No judgment of divorce

may be granted under this ground until the ancillary

issues of equitable distribution, child custody,

2

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visitation, counsel fees and expert fees have been

resolved by the parties or by a judgment of divorce

(see, DRL § 170[7]).1

Here, the Husband makes a sworn statement

that the marriage has broken down irretrievably for

a period of at least six months in his Affidavit in

Support of the present motion. The Husband further

states in his Affidavit that there is "no possibility of

a reconciliation" and that the marriage has been over

for more than 25 years. Under the statute, one

party's sworn statement that the marriage has

broken down irretrievably for a period of six months

is sufficient to establish grounds (see, Townes v.

Coker, 35 Misc.3d 543; see, also, Filstein v.

Bromberg, 36 Misc. 3d 404; see, also, DRL § 170(7).

In opposition, defendant Lynn S. King (the

"Wife") offers only an affirmation by her attorney

who does not have personal knowledge of the events

of the marriage in question. The submission of an

attorney's affirmation is insufficient to defeat a

motion for summary judgment once a party has

established their entitlement to judgment as a

matter of law (see, S.J. Capelin Associates, Inc. v

Globe Mtg. Co., 34 NY2d 338). Moreover, counsel

does not dispute that the parties have been living

apart for more than two decades. Contrary to

counsel's contentions, however, "[s]uggestions that

the party wishing to stay married has a

constitutional right that is being infringed upon in

'The legislature enacted DRL § 170(7) as a no-fault

ground for divorce to lessen disputes between the

parties, reduce litigation costs, and "promote judicial

economy by obviating the necessity of a trial on the issue

of fault" (Rinzler v. Rinzler, 97 AD3d 215).

1

3

A21

violation of due process is unavailing. Staying

married, against the wishes of the other adult who

states under oath that the marriage is irretrievably

broken, is not a vested right" (A.C. v. D.R., 32

Misc.3d 293).

Accordingly, the Husband's motion for

summary judgment is hereby granted. However, the

judgment shall be held in abeyance until the issues

of maintenance, equitable distribution, counsel fees,

costs, and disbursements of this action have been

resolved (see, Charap v Willett, 84 AD3d 1000; see,

also, Minkow v Metelka, 46 AD3d 864).

This constitutes the Decision and Order of the

Court. This Decision and Order is returned to the

attorneys for the Husband. All other papers are

delivered to the County Clerk. The signing of this

Decision and Order shall not constitute entry or

filing under CPLR 2220. Counsel is not relieved from

the applicable provisions of this rule with regard to

filing, entry and Notice of Entry.

SO ORDERED

ENTER

Dated: Troy, New York

November 15, 2017

/S

MICHAEL H. MELKONIAN

Acting Supreme Court Justice

4

A22

Papers Considered :

(1)

(2)

(3)

(4)

(5)

Notice of Motion dated August 31, 2017;

Affidavit of Henry S. King, Jr., dated August

29, 2017, with exhibits annexed;

Memorandum of Law dated August 31, 2017;

Affirmation of Dominick J. Brignola, Esq.,

dated September 14, 2017;

Affirmation of Andrea L. Kelsey, Esq., dated

September 22, 2017.

5