author: Chief Judge Wachtler.

text:
    Jeremiah Mahoney, Respondent-Appellant, v Adirondack Publishing Co., Doing Business as Adirondack Daily Enterprise, et al., Appellants-Respondents.
    Argued November 16,1987;
    decided December 17, 1987

      POINTS OF COUNSEL

      C. David Morrison and Herbert G. Underwood, of the West Virginia Bar, admitted pro hac vice, and Henry A. Fischer for appellants-respondents.
    I. The publication of "Each time Hart-son came off the field after throwing an interception, he was greeted by Mahoney or an assistant coach with 'Come on, get your head out of your &!(!!(&. Play the game.’ ” does not constitute a libel per se of plaintiff-respondent-appellant, Ma-honey. (James v Gannett Co., 40 NY2d 415.) II. Falsity of the paragraph, "Each time Hartson came off the field after throwing an interception he was greeted by Mahoney or an assistant coach with 'Come on, get your head out of your &!(!!(&. Play the game.’ ”, was not established by clear and convincing evidence. III. The evidence does not clearly and convincingly establish that the publication was done with constitutional and/or actual malice toward Mahoney. (New York Times Co. v Sullivan, 376 US 254; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Bee Publs. v Cheektowaga Times, 107 AD2d 382; Di Lorenzo v New York News, 81 AD2d 844.) IV. The "single instance” rule is applicable to this case and requires that the judgment be reversed and plaintiff’s complaint dismissed. (Duci v Daily Gazette Co., 102 AD2d 940.) V. Plaintiff-respondent, Mahoney, is not entitled to presume damages. (Gertz v Robert Welch, Inc., 418 US 323; Chapadeau v Utica Observer-Dispatch, 38 NY2d 196; Amelkin v Commercial Trading Co., 23 AD2d 830, 17 NY2d 500; Shaw v Consolidated Rail Corp., 74 AD2d 985; Lyons v New Am. Lib., 78 AD2d 723.) VI. The court below was correct in its determination that the award of punitive damages had to be stricken and defendants adopt the observations of that court’s decision with respect to the striking of the award of punitive damages.

      David R. Murphy for respondent-appellant.
    I. Defendants’ statement about plaintiff was proved false by the overwhelming weight of the evidence and, considered in the context of the article as a whole, it could clearly be found by the jury to constitute libel per se. (Moore v Francis, 121 NY 199; Gunsberg v Roseland Corp., 34 Misc 2d 220; Goodyear Aluminum Prods. v State of New York, 21 Misc 2d 725; Flaherty v New York Times, 109 App Div 489; Four Star Stage Light. v Merrick, 56 AD2d 767; Hinrichs v Butts, 149 App Div 236; Buckley v Littell, 539 F2d 882, 429 US 1062; Carney v Memorial Hosp. & Nursing Home, 64 NY2d 770; Bruno v New York News, 89 AD2d 260; Bingham v Gaynor, 203 NY 27.) II. The single instance rule is not applicable to this case as a matter of both fact and law. (Ocean State Seafood v Capital Newspaper, 112 AD2d 662.) III. Constitutional malice sufficient to support an award of damages to plaintiff as a public figure was established clearly and convincingly. (New York Times Co. v Sullivan, 376 US 254.) IV. The ruling of the court below striking the award of punitive damages to plaintiff was incorrect, as sufficient evidence of common-law malice was adduced by plaintiff to support the award. (Herbert v Lando, 441 US 153; Kent v City of Buffalo, 36 AD2d 85, 29 NY2d 818; Zator v Buchel, 231 App Div 334; Corrigan v Bobbs-Merrill Co., 228 NY 58; Wood v Lee, 41 AD2d 730; Clevenger v Baker Voorhis & Co., 19 AD2d 340, 14 NY2d 536.)

      S. Paul Battaglia for the New York Press Association and others, amici curiae.

    I. The recovery of punitive damages for libel of public officials should be barred under the New York and Federal Constitutions as an undue restraint upon the "breathing space” necessary to the survival of the freedom of expression. (New York Times Co. v Sullivan, 376 US 254; Gertz v Robert Welch, Inc., 418 US 323; Buckley v Littell, 539 F2d 892, 429 US 1062; Speiser v Randall, 357 US 513; United States v Ballard, 322 US 78.) II. Punitive damages are unconstitutional because they are penal in nature and their assessment is not governed by meaningful standards. (Garrison v Louisiana, 379 US 64; Roth v United States, 354 US 476; Chaplinsky v New Hampshire, 315 US 568; Brandenburg v Ohio, 395 US 444; Beauharnais v Illinois, 343 US 250; Walker

      v Sheldon, 10 NY2d 401; Hartford Acc. & Indent. Co. v Village of Hempstead, 48 NY2d 218; Bellanca v New York State Liq. Auth., 54 NY2d 228, 456 US 1006; SHAD Alliance v Smith Haven Mall, 66 NY2d 496; PruneYard Shopping Center v Robins, 447 US 74.) III. Appellants’ article was substantially true and no "incremental harm” to respondent’s reputation was proved to have resulted from the "get your head” statement alone. (James v Gannett Co., 40 NY2d 415.) IV. The finding of the court below that respondent submitted legally sufficient proof of "Times malice” was erroneous. V. The "get your head” statement is not defamatory per se as charging general unfitness or persistent "unethical” behavior but even if defamatory per se, the statement is nonactionable because the "single instance” rule applies. (Giancola v Gannett Co., 125 AD2d 991; Casamassima v Oechsle, 125 AD2d 855; Duci v Daily Gazette Co., 102 AD2d 940; November v Time Inc., 13 NY2d 175.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Thomas Bengston, the defendant in this libel action, is a newspaper reporter and the author of an article which appeared in the sports section of the October 3, 1983 edition of the Adirondack Daily Enterprise, a newspaper published by defendant Adirondack Publishing Company. The article was critical of the conduct of plaintiff Jeremiah Mahoney, a high school football coach, during a football game between Mahoney’s St. Lawrence Central High School team and a team from Tupper Lake. Mahoney commenced this libel action against Bengston and the newspaper publisher, claiming that portions of the article were false and that their publication harmed his reputation as a coach and educator. After a jury trial, during which he conceded that he was a public figure, Mahoney was awarded compensatory and punitive damages. The Appellate Division affirmed the ensuing judgment insofar as it awarded compensatory damages, but struck the award of punitive damages (123 AD2d 10). We granted defendants’ motion and plaintiffs cross motion for leave to appeal (69 NY2d 609) to determine whether the Appellate Division erred in either respect.

The dispositive issue is whether plaintiff proved by clear and convincing evidence that the defendants published the false portions of the article with "actual malice” — that is, knowing they were false or subjectively entertaining serious doubt as to their truth (see, Bose Corp. v Consumers Union, 466 US 485, 511, n 30; St. Amant v Thompson, 390 US 727, 731; New York Times Co. v Sullivan, 376 US 254, 280). We conclude that plaintiff did not meet this burden of proof. The complaint should, therefore, be dismissed, and the Appellate Division order, insofar as appealed from by defendants, should be reversed. Plaintiff’s cross appeal, challenging the Appellate Division’s vacatur of punitive damages, is thus academic and must be dismissed.

The football game described in the article took place on Saturday, October 1, 1983, at the Tapper Lake High School field. Both teams were winless going into the game, but the Tapper Lake Lumberjacks emerged with a 31-7 victory. Defendant Bengston, a reporter and the sports editor for the Daily Enterprise, observed the game from the stands behind the St. Lawrence team’s bench. He sat in the top row of the stands, near midfield, approximately 30 feet from the bench. After the game he prepared the story which became the subject of this action.

The article appeared in the Monday edition of the paper. In addition to describing the contest on the field, Bengston reported extensively on the St. Lawrence coach’s actions along the sidelines and in his team’s locker room after the game. Bengston reported that, although the St. Lawrence team lost the game on the field, "Larries coach Jerry Mahoney showed himself to be the big loser.” According to the article, Mahoney "cursed and belittled his players from the sidelines throughout the game” and "screamed at his players so loudly in the locker room after the game that he easily could be heard by embarrassed fans outside the school building.” The "verbal abuse” directed at the players was reportedly mixed with profanities, and the events, according to Bengston, offered "a dark glimpse of high school football coaching.” The story also contained the following passage which, as the trial developed, became the focal point of the action: "Larries quarterback Kevin Hartson completed 14 passes and was intercepted six times. Each time Hartson came off the field after throwing an interception, he was greeted by Mahoney or an assistant coach with 'Come on, get your head out of your &!(!!(&. Play the game.’ ”

Plaintiff commenced this libel action, contending that the account of his conduct was false and had damaged his reputation. During the trial, plaintiff admitted that he had used the words "hell,” "damn,” and "goddamn” in reprimanding his team during and after the game. Thus, the trial court dismissed, for lack of proof of falsity, plaintiff’s claim as to those portions of the article that described him as having screamed and used profanities toward his players.

The trial court ruled, however, that plaintiff had established a prima facie case with respect to that portion of the article which reported that plaintiff had told his quarterback, "get your head out of your &!(!!(&.” The jury awarded plaintiff $10,000 in compensatory damages, finding that this portion of the article was false and defamatory and that defendants had published it with actual malice — either knowing it was false or with reckless disregard for whether it was false. The jury also awarded plaintiff $5,000 in punitive damages after finding that defendants had acted with common-law malice — that is, with a desire to harm plaintiff or reckless disregard for the injurious effect the article would have upon him (see, Corrigan v Bobbs-Merrill Co., 228 NY 58, 66-67).

The Appellate Division ruled that there was insufficient evidence of common-law malice and therefore disallowed the award of punitive damages. The court upheld the award of compensatory damages, however, concluding that the evidence was sufficient to sustain the jury’s findings that the report was false, defamatory and published with actual malice.

We agree with the Appellate Division that the evidence at trial was sufficient to meet plaintiff’s burden of proving that the critical portion of the article was false (see, Philadelphia Newspapers v Hepps, 475 US 767 [public figure plaintiff must bear burden of proving falsity in libel action]). Game officials testified that they did not observe any unsportsmanlike conduct, including the use of profanities, by plaintiff. Plaintiff and Hartson, the quarterback, testified that plaintiff actually said, encouragingly, "Get your head up” or "Keep your head up.” Plaintiff’s wife and the quarterback’s father, both spectators at the game with a vantage point equal to or better than Bengston’s, testified that they did not hear the offensive language. The quarterback’s father affirmed that his son had been told by the coach to "[g]et his head up.” The coach of the St. Lawrence cheerleaders, who had watched the game from a point about 25 or 30 feet from plaintiff’s position on the sideline, testified that she heard no foul language from Mahoney. Thus, there was strong evidence that plaintiff did not make the statements attributed to him in this portion of the article.

We also agree with the Appellate Division that the false portion of the article was reasonably susceptible of a defamatory meaning (see, Silsdorf v Levine, 59 NY2d 8, 12-13; James v Gannett Co., 40 NY2d 415, 419). Although it might be argued that the quoted language is not unexpected or out of character for a football coach, the thrust of the article was to the contrary — that such conduct should be condemned. The false attribution of such language to the plaintiff, when viewed in the context of the article as a whole, cast doubt on the plaintiff’s fitness for his profession. It cannot be said, therefore, that the excerpt was not defamatory as a matter of law.

That the story was false and defamatory, however, is not enough to sustain plaintiff’s claim. The law governing defamation actions is overlaid with a network of constitutionally based rules reflecting our "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open” (New York Times Co. v Sullivan, 376 US 254, 270, supra). The rules are grounded in the First and Fourteenth Amendments and place significant restrictions on the ability of the States to fashion remedies for harm caused by defamatory publications, to ensure that fear of liability will not chill important free speech and free press rights and cause self-censorship. These protections vary considerably in scope and content depending on such factors as whether the plaintiff is a public official, public figure or private individual (see, Gertz v Robert Welch, Inc., 418 US 323, 342-343); whether the defamatory statements involve an issue of public concern (see, Dun & Bradstreet v Greenmoss Bldrs., 472 US 749, 758-761); and, perhaps, whether or not the defendant is a member of the media (see, LeBel, Reforming the Tort of Defamation: An Accommodation of the Competing Interests Within the Current Constitutional Framework, 66 Neb L Rev 249, 280-282 [discussing conflicting signals on this point emanating from Dun & Bradstreet v Greenmoss Bldrs., supra, and Philadelphia Newspapers v Hepps, 475 US 767, supra]).

Plaintiff’s concession at trial — that he is a "public figure” for purposes of this action — triggered three of these constitutionally based rules of immediate relevance. First, plaintiff was required to prove that the defamatory statements were published with actual malice (see, Curtis Publ. Co. v Butts, 388 US 130; New York Times Co. v Sullivan, supra). Second, actual malice had to be established by clear and convincing evidence (see, Bose Corp. v Consumers Union, 466 US 485, 511, n 30, supra). Third, appellate review must include an independent review of the evidence germane to the actual-malice determination to ensure that the determination rests upon clear and convincing evidence (see, id., at 514, n 31).

It is the third rule which compels this court, usually constrained to review only the law and without the power to disturb affirmed findings of fact, to review the evidence of actual malice. There was no direct evidence that Bengston or his employer knew or suspected the plaintiff did not utter the words attributed to him in the article. The only evidence of actual malice is the inference to be drawn from the proof that plaintiff in fact said something else to his quarterback. The logic advanced by plaintiff to support this inference is that, because Bengston was present, he must have known the true events and his erroneous account, therefore, must have been a deliberate falsehood. Under the circumstances presented, we conclude that this inference does not supply the clear and convincing evidence required to show that defendants knew the account was false or entertained doubt as to its truth.

Falsity and actual malice are distinct concepts. It is one thing to publish a false statement and quite another to do so knowingly or recklessly (see, Bose Corp. v Consumers Union, 466 US 485, 511, supra). It may be possible, as the United States Supreme Court has suggested, that proof of falsity will support an inference of actual malice "when the alleged libel purports to be an eyewitness or other direct account of events that speak for themselves” (Time, Inc. v Pape, 401 US 279, 285). The Appellate Division held that this case presented such an instance. We disagree. The inference depends for its validity on the premise that the eyewitness could not have perceived and understood anything but the truth. Thus, in reporting something else, the observer must have departed from the truth by design. The underlying premise is valid, however, only if the events were unambiguous and the setting was such that the observer could not have misperceived those events. Such conditions, however, cannot simply be assumed; as the proponent of the inference and the bearer of the burden of proof of actual malice, the plaintiff must demonstrate that they exist. No such showing was made here.

The evidence was that Bengston observed the events some 30 feet from where they took place. The exchanges he reported between plaintiff and the quarterback occurred after plaintiff’s visiting team had delivered the ball into the hands of the home team, an event likely to excite the home crowd. It is probable, then — at least plaintiff did not show otherwise— that Bengston’s opportunity to hear the exchanges was less than ideal.

It is significant that the only witnesses who claimed to know what plaintiff actually said were plaintiff himself, the quarterback to whom he had spoken and the quarterback’s father. The other witnesses simply testified that they did not hear plaintiff use profane language. Plaintiff and the quarterback were obviously in a better position than Bengston to know what was said. The quarterback’s father sat about the same distance away as Bengston. All of this evidence supports the finding that Bengston’s report was inaccurate, but it does not lead to the conclusion that Bengston knew that it was false. There was no evidence to negate the possibility that Bengston simply misunderstood plaintiff. There was not, for example, testimony that plaintiff’s words were clearly audible to anyone in Bengston’s location.

Furthermore, the similarity between Bengston’s account ("get your head out of your &!(!!(&”) and plaintiff’s account ("get your head up”) suggests that the falsity was more the product of misperception than fabrication. In sum, we conclude that plaintiff failed to establish that the situation was sufficiently unambiguous to support the inference that the false statement was published with actual malice.

The absence of clear and convincing evidence of actual malice is fatal to plaintiff’s complaint. The question whether the award of punitive damages was properly stricken is, therefore, academic. Thus, we have no occasion to consider whether plaintiffs proof of common-law malice was sufficient to sustain such an award or whether punitive damages are ever recoverable in libel actions involving matters of public concern (see, Dun & Bradstreet v Greenmoss Bldrs., 472 US 749, 761, supra; Gertz v Robert Welch, Inc., 418 US 323, 349, supra; see generally, Committee Report, Punitive Damages in Libel Actions, 42 Record of Assn of Bar of City of NY 20 [1987]).

Accordingly, plaintiffs cross appeal should be dismissed as academic and the Appellate Division order, insofar as appealed from, should be reversed and the complaint dismissed.

Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

On defendants’ appeal, order insofar as appealed from reversed, with costs, and complaint dismissed. Plaintiffs cross appeal dismissed, with costs.

      . The term "actual malice” has been criticized as an inappropriate label for this state-of-mind requirement because it employs a term (malice)— commonly understood to mean hostility or ill will toward another person-— to describe something quite different: the state of mind of the defendant with respect to the truth or falsity of the statements made (see, Herbert v Lando, 441 US 153, 199-200 [Stewart, J., dissenting]; Nowak, Rotunda and Young, Constitutional Law, at 945-946 [2d ed 1983] [suggesting that "scienter” is a more accurate label]; LeBel, Reforming the Tort of Defamation: An Accommodation of the Competing Interests Within the Current Constitutional Framework, 66 Neb L Rev 249, 254-255, & n 23 [1987]). Although this criticism is not without foundation, the term of art is now firmly entrenched in the literature and case law on the subject and will therefore be employed in this opinion.

      2. This is the form in which the quotation appeared in the article.


source: Caselaw Access Project

author: Bellacosa, J.

license: Public Domain

text:
    Donald Ferrin et al., Appellants, v New York State Department of Correctional Services et al., Respondents.
    Argued November 9, 1987;
    decided December 21, 1987

      POINTS OF COUNSEL

      Douglas V. Putnam, Jean Conigliano and David C. Leven for appellants.
    I. Civil death does not present an impediment to the capacity of a life-sentence inmate to marry. (Avery v Everett, 110 NY 317; Platner v Sherwood, 6 Johns Ch 118; Jones v Jones, 249 App Div 470; Matter of Deming, 10 Johns 232; Matter of Miner v New York State Dept. of Correctional Servs., 125 Misc 2d 594; Matter of Gargan v Sculley, 82 Misc 667; Bond v Bond, 162 Misc 449; Matter of Lindewall, 287 NY 347; Cerami v Cerami, 95 Misc 2d 840.) II. New York law contains no provision for declaring plaintiffs’ marriage null and void. (Matter of Dugro, 261 App Div 236, 287 NY 595; Matter of Meltzer v McAnns Bar & Grill, 85 AD2d 826; Matter of Masocco v Schaaf, 234 App Div 181; Padova v Eckhardt, 118 Misc 2d 853; Helfond v Helfond, 53 Misc 2d 974; De Milio v New York State Thruway Auth., 15 AD2d 27; Apelbaum v Apelbaum, 7 AD2d 911; Matter of Liebman, 44 Misc 2d 191; Romano v Romano, 26 AD2d 123, 19 NY2d 444.)

      Robert Abrams, Attorney-General (Nancy A. Spiegel, O. Peter Sherwood and Peter H. Schiff of counsel), for New York State Department of Correctional Services, respondent.
    Civil Rights Law § 79-a precludes a life-sentenced inmate from entering into a valid marriage. Appellants’ marriage is therefore void ab initio. (Avery v Everett, 110 NY 317; Matter of Lindewall, 287 NY 347; Jones v Jones, 249 App Div 470, 274 NY 574; Fuchs v Fuchs, 104 Misc 2d 1143; Matter of Fein, 51 Misc 2d 1012; Matter of Fitzpatrick v Smith, 90 AD2d 974, 59 NY2d 916, 464 US 963; Johnson v Rockefeller, 365 F Supp 377.)
   OPINION OF THE COURT

Bellacosa, J.

This declaratory judgment action raises the legal validity of a marriage entered into by a life-sentence inmate while in prison. We agree with the lower courts that such a marriage is void from inception because the Legislature’s declaration of civil death under Civil Rights Law § 79-a continues to impose a complete disability to enter into a valid marriage with an inmate during life-sentence incarceration.

Plaintiff Donald Ferrin is serving a term of 20 years to life, imposed in April 1974. In December 1977, while being held at the Dutchess County Jail, Donald purported to marry Susan in the presence of the jail chaplain. Donald was later transferred to a correctional facility where he was permitted to participate with Susan in the Family Reunion Program (7 NYCRR 220.1).

Some years later, Donald was transferred to his present place of incarceration and he again applied to participate in the Family Reunion Program. In August 1984, the Department of Correctional Services (DOCS) denied the application, stating that pursuant to Civil Rights Law § 79-a the Ferrin marriage was "not considered to be legal”.

Donald and Susan Ferrin commenced this action seeking relief from that determination by a judicial declaration that they are validly married. The State moved for summary judgment and Supreme Court dismissed the Ferrins’ complaint. The Appellate Division modified the judgment technically to declare in favor of the State DOCS, stating that Ferrin could not legally marry and that estoppel was not applicable against the State; as so modified, that court affirmed (124 AD2d 265) and this court has granted leave to the Ferrins to appeal to our court. We now affirm.

Plaintiffs eschew any constitutional challenge to the State’s authority to prohibit the marriage of an inmate serving a life sentence. Their claim rests solely on their asserted construction of Civil Rights Law § 79-a and related statutes as containing no prohibition of the kind at issue here. As a fall back argument, plaintiffs urge that the State should be estopped from challenging the validity of their marriage since it was solemnized by a chaplain at a public jail.

Plaintiffs’ statutory argument starts with a concession that under Civil Rights Law § 79-a an inmate sentenced to life imprisonment is declared "civilly dead”. Plaintiffs argue that since the statute does not specify the particular consequences of civil death, courts have erroneously concluded that "civil death” nullifies a "lifer’s” legal ability to marry (see, e.g., Matter of Fitzpatrick v Smith, 90 AD2d 974, affd for reasons stated below 59 NY2d 916, cert denied 464 US 963, reh denied 464 US 1064). They also argue that the source of old case law authority determining that a civilly dead person is unable to marry is Domestic Relations Law § 6 (2), which allowed the spouse of a life-sentence inmate to "elect” to treat a marriage as "void”. Since under plaintiffs’ analysis Domestic Relations Law § 6 (2) was the root impediment to such marriages, the argument continues that its repeal in 1981 removed the precedential and analytical bar to a life-term prisoner entering into a valid marriage contract.

Plaintiffs’ syllogism is derailed by examination of the legislative history of the 1981 amendments repealing Domestic Relations Law § 6 (2), and by ordinary statutory construction and application of the language of Civil Rights Law § 79-a itself. Prior to 1981, Civil Rights Law § 79-a read as follows: "1. Except as provided in subdivisions two and three, a person sentenced to imprisonment for life is thereafter deemed civilly dead; provided, that such a person may marry while on parole, or after he has been discharged from parole, if otherwise capable of contracting a valid marriage. Such capability shall be deemed to exist where the marriage of a person sentenced to imprisonment for life has been terminated by divorce, annulment, or subsequent remarriage of a former spouse. A marriage contracted pursuant to this section by a person while he is on parole, without prior written approval of the board of parole, shall be ground for revocation of the parole.” And Domestic Relations Law § 6 (2) provided:

"§ 6. Void marriages

"A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living, unless either * * *

"2. Such former husband or wife has been finally sentenced to imprisonment for life; this exception shall not apply if the marriage with such former husband or wife was contracted pursuant to the provisions of section seventy-nine-a of the civil rights law”.

Under these statutes, the validity of an existing lawful marriage became voidable when one of the partners to the marriage was sentenced to life imprisonment. The confusion, however, was as to whether the voidability was effected automatically, by operation of law, because of the civil death status or only upon express election of the noninmate spouse who wished also to be free of the marriage (Fuchs v Fuchs, 104 Misc 2d 1143, 1144; Matter of Fein, 51 Misc 2d 1012; Cerami v Cerami, 95 Misc 2d 840; Matter of Lindewall, 287 NY 347, 357; Brookman v Brookman, 161 Misc 741; Jones v Jones, 249 App Div 470, affd 274 NY 574).

To remove this confusion, Civil Rights Law § 79-a was amended and Domestic Relations Law § 6 (2) was repealed so that the validity of a marriage in existence at the time of sentencing was no longer affected by the imposition of a life sentence. The following sentence was added to Civil Rights Law § 79-a: "This section shall not be deemed to impair the validity of a marriage between a person sentenced to imprisonment for life and his spouse.” Thus, when a married person is sentenced to life imprisonment, the marriage is no longer automatically dissolved by virtue of the inmate’s civil death or by mere election of the free spouse; appropriate and ordinary legal action must be brought to successful conclusion to terminate such a marital relationship.

According to the Sponsor’s Memorandum in support of the 1981 legislation, the purpose of the amendment was to "clarify the present law to insure that an already existing marriage of a person sentenced to life imprisonment is not automatically dissolved by the imposition of the sentence” (Sponsor’s Mem in support, Governor’s Bill Jacket, L 1981, ch 118 [emphasis supplied]). Additionally, the Memorandum by the Executive Director of the Law Revision Commission stated that the amendments were intended to "change present law by providing that a sentence of life imprisonment does not automatically dissolve a marriage” (Mem of Executive Director of Law Revision Commission, Governor’s Bill Jacket, L 1981, ch 118). These amendments were thus meant to address the validity of only marriages in existence at the time the life sentence was imposed. They had no independent effect on the legal principles or statutory applications affecting the validity of a marriage attempted by a civilly dead inmate after the life sentence had been imposed and begun to be served.

Plaintiffs’ argument must also be examined under the plain language of Civil Rights Law § 79-a itself. To accept their main premise (i.e., being civilly dead under Civil Rights Law § 79-a does not affect a person’s capacity to marry) would nullify the meaning of the second clause in the statute which states: "provided that such a person [a civilly dead 'lifer’] may marry while on parole, or after he has been discharged from parole”. A rudimentary rule of statutory construction dictates that whenever practicable courts must give effect to all the language employed by the particular legislation (Matter of Brooklyn Union Gas Co. v Commissioner of Dept. of Fin., 67 NY2d 1036, 1039; Matter of Roballo v Smith, 63 NY2d 485, 489; Matter of Albano v Kirby, 36 NY2d 526, 530). In interpreting this statute we are bound to accept the Legislature’s deliberate retention in the statute of the parole clause which, in order to have meaning and purpose, compels the conclusion that civil death of an incarcerated lifer precludes marriage. Thus, under the terms of the concededly applicable statute, granting parolees previously sentenced to life imprisonment the right to marry can only have meaning if a general existing prohibition with respect to incarcerated lifers is operative.

Plaintiffs’ estoppel argument fails because it is contradicted by recent cogent authority of this court (Scruggs-Leftwich v Rivercross Tenants’ Corp., 70 NY2d 849; Granada Bldgs. v City of Kingston, 58 NY2d 705, 708).

While there may be competing policy arguments and modern penological and societal reasons for ending this last significant vestige of civil death for lifers, these are matters which in these circumstances must be left to the Legislature to resolve. The plain statute and basic statutory construction principle bind this court.

Accordingly, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, and Hancock, Jr., concur.

Order affirmed, without costs.


author: Simons, J. Bellacosa, J. Alexander, J.

text:
    In the Matter of John Doe et al., Appellants, v Thomas A. Coughlin, III, as Commissioner of the New York State Department of Correctional Services, et al., Respondents.
    Argued September 1,1987;
    decided November 24, 1987

      POINTS OF COUNSEL

      Deborah Schneer, Robert Selcov, David C. Leven and Maurie G. Heins for appellants.
    I. Respondents’ determination constitutes a violation of petitioners’ rights to privacy as guaranteed by the United States and New York State Constitutions. (Lee v Washington, 390 US 333; Durso v Rowe, 579 F2d 1365; Smith v Coughlin, 577 F Supp 1055, 748 F2d 783; Wright v Cuyler, 517 F Supp 637; French v Heyne, 547 F2d 994; Main Rd. v Aytch, 522 F2d 1080; Haymes v Montanye, 427 US 236, 547 F2d 188, 431 US 967; Blackburn v Snow, 771 F2d 556; Griswold v Connecticut, 381 US 479; Carey v Population Servs. Intl., 431 US 678.) II. Respondents violated petitioner John Doe’s rights as a handicapped person and discriminated against him in violation of the Federal Rehabilitation Act of 1973. (Department of Transp. v Paralyzed Veterans, 477 US 597; New Mexico Assn. for Retarded Citizens v State of New Mexico, 495 F Supp 391, 678 F2d 847; Association for Retarded Citizens v Frazier, 517 F Supp 105; Grove City Coll, v Bell, 465 US 555; School Bd. v Arline, 480 US 273; Southeastern Community Coll, v Davis, 442 US 397; Mantolete v Bolger, 767 F2d 1416; Doe v New York Univ., 666 F2d 761.) III. Respondents’ decision to bar petitioners from the Family Reunion Program was arbitrary and capricious. (Park Tower Assocs. v City of New York, 116 Misc 2d 1059; Matter of District 27 Community School Bd. v Board of Educ., 130 Misc 2d 398; Express Realty Co. v Zinn, 39 Misc 2d 733; State Div. of Human Rights [Giannavola] v Le Roy Cent. School Dist., 107 AD2d 153, 65 NY2d 610; Ten Hoeve v Board of Educ., 97 AD2d 678, 64 NY2d 1036; Patron v Patron, 40 NY2d 582.)

      Robert Abrams, Attorney-General (Frank K. Walsh, O. Peter Sherwood and Peter H. Schiff of counsel), for respondents.
    I. The court below properly ruled that respondents’ determination did not violate any of petitioners’ constitutional rights. (Matter of Mary of Oakknoll v Coughlin, 101 AD2d 931; Turner v Safley, 482 US —, 107 S Ct 2254; Jones v North Carolina Prisoners’ Union, 433 US 119; Pell v Procunier, 417 US 817; Board of Regents v Roth, 408 US 564; Kozlowski v Coughlin, 539 F Supp 852; Matter of Economico v Village of Pelham, 50 NY2d 120; Greenholtz v Nebraska Penal Inmates, 442 US 1; Wright v Cuyler, 517 F Supp 637.) II. The court below correctly held that respondents’ determination did not deny the rights of petitioner John Doe under section 504 of the Federal Rehabilitation Act of 1973. (Department of Transp. v Paralyzed Veterans, 477 US 597; School Bd. v Arline, 480 US 273; Southeastern Community Coll. v Davis, 442 US 397; Doe v New York Univ., 666 F2d 761; Kampmeier v Nyquist, 553 F2d 296.) III. The court below properly held that respondents’ determination was neither arbitrary and capricious nor without rational basis. (Matter of Pell v Board of Educ., 34 NY2d 222; Matter of Mary of Oakknoll v Coughlin, 101 AD2d 931; Matter of Savastano v Prevost, 66 NY2d 47.)
   OPINION OF THE COURT

Simons, J.

Petitioners John and Jane Doe were married June 6, 1985. At the time, John Doe was an inmate of the Auburn Correctional Facility serving a BVz- to 11-year indeterminate sentence. In October 1985 he qualified for participation in the Family Reunion Program and petitioners subsequently were afforded a two-day conjugal visit in a trailer on prison grounds. In December 1985 John Doe was diagnosed as suffering from Acquired Immune Deficiency Syndrome (AIDS) and respondents, various correction officials, denied petitioners further conjugal visits. Petitioners contend respondents’ ruling violated their State and Federal constitutional rights, was arbitrary and capricious and unlawfully discriminated against John Doe on the basis of his handicap, contrary to provisions of the Federal Rehabilitation Act of 1973 (29 USC § 794).

I

The Family Reunion Program allows selected inmates to spend a period of days with their spouses or various enumerated relatives in a private trailer located within the prison complex but outside the main prison buildings. Its purpose is to "preserve, enhance and strengthen family ties that have been disrupted as a result of incarceration”, thereby enabling inmates to adjust to society more easily when released from prison (7 NYCRR 220.1). The program is not available at all correctional facilities but in those where it is, approval by the administrator is required for each visit and participation is governed by the regulations issued by the Department of Correctional Services (see, 7 NYCRR 220.1 et seq.). Under these regulations, an applicant who has a diagnosed communicable disease may be disqualified from participating in the program unless found eligible after special review (7 NYCRR 220.3 [c] [8]).

In December 1985, upon discovering John Doe had AIDS, correction officials transferred him to the prison hospital. His wife continued to visit him there and in February 1986 John Doe submitted another application seeking permission to participate in the Family Reunion Program. His application was denied and the denial was upheld on administrative appeal on the ground that John Doe had been diagnosed "as having a communicable disease”. Although petitioners acknowledge the nature of Acquired Immune Deficiency Syndrome and recognize its dangers, they deny it is a "communicable disease” or that their participation in the Family Reunion Program may reasonably be denied because John Doe is afflicted with it. Accordingly, they commenced this article 78 proceeding in the nature of mandamus to review the Correction Department’s ruling and also to obtain declaratory relief. Supreme Court declared petitioners’ rights had not been violated and therefore dismissed their petition. The Appellate Division affirmed and we granted petitioners leave to appeal. We now affirm.

II

Preliminarily, we note that petitioners’ attorney informed the court at oral argument that after this appeal had been perfected John Doe was transferred to the Midstate Correctional Facility at Marcy — an institution which has not established a Family Reunion Program. Petitioners’ counsel nevertheless maintains this transfer did not render the appeal moot. We agree. Although petitioners sought an order compelling respondents to permit conjugal visits, relief that cannot be granted at Midstate Correctional Facility, they also sought a declaration of their rights. John Doe remains incarcerated within the correctional system and his particular location is a matter subject to the Commissioner’s broad discretion (see, Correction Law § 23; Matter of Johnson v Ward, 64 AD2d 186, 188). That being so, petitioners have a continuing interest in the litigation because John Doe may be transferred in the future to a facility which has established a Family Reunion Program. Thus, the litigation remains adversarial and "the differences between [petitioners] and [respondents] give rise to a 'justiciable controversy’, for which a declaratory judgment would be an appropriate remedy” (East Meadow Community Concerts Assn. v Board of Educ., 18 NY2d 129, 135; see also, Cohen and Karger, Powers of the New York Court of Appeals § 98, at 417-418 [rev ed]).

¡II

A

Petitioners advance three constitutional claims: that respondents denied petitioners their fundamental right to marital privacy, that they denied them due process of law, and that they denied them equal protection of the laws.

The right to privacy, in constitutional terms, involves freedom of choice, the broad, general right to make decisions concerning oneself and to conduct oneself in accordance with those decisions free of governmental restraint or interference (see, People v Onofre, 51 NY2d 476, 485; 2 Rotunda-NowakYoung, Constitutional Law, Substance and Procedure § 18.26 et seq.). This "right to be let alone” has been called the "most comprehensive of rights and the right most valued by civilized men” (Olmstead v United States, 277 US 438, 478 [Brandeis, J., dissenting]). Among the decisions protected by the right to privacy, are those relating to marriage (Turner v Safley, 482 US —, 107 S Ct 2254; Loving v Virginia, 388 US 1; Griswold v Connecticut, 381 US 479); procreation (Skinner v Oklahoma, 316 US 535); contraception (Eisenstadt v Baird, 405 US 438; Griswold v Connecticut, supra) and personal contact (Cooper v Morin, 49 NY2d 69, cert denied sub nom. Lombard v Cooper 446 US 984 [contact visits, as distinguished from conjugal visits, for pretrial detainees]; see generally, 2 Rotunda-NowakYoung, Constitutional Law, Substance and Procedure §§ 15.7 [as to fundamental rights generally], 18.30 [a] [as to the right to engage in sexual acts]).

An individual does not automatically forfeit all constitutional rights upon conviction of a crime. The courts have recognized, for example, that even those confined to a correctional facility retain rights to freedom of speech (Pell v Procunier, 417 US 817) and freedom of religion (Cruz v Beto, 405 US 319; Matter of Rivera v Smith, 63 NY2d 501); the right to petition the government for redress of grievances, which includes access to courts (Johnson v Avery, 393 US 483); that they are protected against invidious discrimination (Lee v Washington, 390 US 333); and that they may claim protection of the Due Process Clause to prevent additional deprivation of life, liberty or property without due process of law (Wolff v McDonnell, 418 US 539). Relevant to this appeal, the Supreme Court has recently held that inmates retain some privacy rights, specifically the right of an inmate serving less than a life sentence to marry (see, Turner v Safley, 482 US —, 107 S Ct 2254, supra; cf., Johnson v Rockefeller, 365 F Supp 377, affd sub nom. Butler v Wilson, 415 US 953; and Matter of Fitzpatrick v Smith, 90 AD2d 974, affd 59 NY2d 916 [both holding Civil Rights Law § 79-a constitutional]).

Nevertheless, an inmate is constitutionally deprived of his liberty upon conviction and sentence of imprisonment, and his rights are necessarily limited by the realities of confinement and by the legitimate goals and policies of the correctional system (O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400, 2404; Bell v Wolfish, 441 US 520, 546). As a general proposition, an inmate retains only those rights which "are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system” (Pell v Procunier, supra, at 822; see also, Turner v Safley, 482 US, at —, 107 S Ct, at 2261, supra; Hudson v Palmer, 468 US 517, 525; Jones v North Carolina Prisoners’ Union, 433 US 119, 125; Matter of Rivera v Smith, supra, at 510). Traditionally, intimate marital relations have been deemed inconsistent with incarceration because the very purpose of confinement is to remove the prisoner from society for punishment and to serve valid governmental interests of security, deterrence and rehabilitation. Inasmuch as these interests can be furthered by denying intimate contact during the period of incarceration courts have uniformly concluded that neither a prisoner nor his spouse has a right to intimate marital relations during a prisoner’s confinement and that the State is under no obligation to establish conjugal visitation programs (see, Matter of Mary of Oakknoll v Coughlin, 101 AD2d 931; In Re Cummings, 30 Cal 3d 870, 640 P2d 1101; McGinnis v Stevens, 543 P2d 1221, 1237-1238 [Alaska]; see also, Polakoff v Henderson, 488 F2d 977, affg 370 F Supp 690; Tarlton v Clark, 441 F2d 384, cert denied 403 US 934; Payne v District of Columbia, 253 F2d 867; Lyons v Gilligan, 382 F Supp 198; Stuart v Heard, 359 F Supp 921; see generally, Annotation, State Regulation of Conjugal or Overnight Familial Visits in Penal or Correctional Institutions, 29 ALR4th 1216; Note, Conjugal Visitation Rights and the Appropriate Standard of Judicial Review for Prison Regulations, 73 Mich L Rev 398, 403 [1974]). Accordingly, petitioners’ privacy claim must be rejected: although prisoners retain some rights to privacy, the right to conjugal relations has not been included among them (see, Turner v Safley, 482 US —, 107 S Ct 2254, 2265, supra [enumerating several incidents of marriage which survive imprisonment but not including among them the right to conjugal relations]).

Petitioners next contend that even if their constitutional right to marital privacy is foreclosed by confinement, they have a right to conjugal visits because respondents have established the Family Reunion Program. They have not articulated the basis for such a claim, but it is implicit in their submission and rests upon the belief that even if John Doe’s constitutional right to privacy does not survive incarceration, the State has given petitioners a legitimate expectation that they would be afforded conjugal visits by implementing the Family Reunion Program and that such expectation gives rise to a constitutional interest protected by due process principles.

In Matter of Russo v State Bd. of Parole (50 NY2d 69) we denied petitioners’ claim but we recognized nevertheless that prisoners may acquire, by regulation, constitutional rights lost upon incarceration. Thus, we stated that although a prisoner’s right to liberty is extinguished by incarceration and there is no inherent right to parole, "when a State adopts a [regulatory] scheme which creates a legitimate expectation” of early release from prison, there "exists a liberty interest deserving of constitutional protection” (id., at 73-74). If regulations affirmatively promise that benefits will be granted in the absence of prohibited findings or circumstances, then a protected interest may arise (Russo v State Bd. of Parole, supra, at 74; see also, Connecticut Bd. of Pardons v Dumschat, 452 US 458, 464-465 [commutation of sentence]; Greenholtz v Nebraska Penal Inmates, 442 US 1, 9-10 [parole release]; Meachum v Fano, 427 US 215, 225 [prison transfer]; Wright v Cuyler, 517 F Supp 637 [prerelease family visits]; cf, Matter of Economico v Village of Pelham, 50 NY2d 120, 127). It is the inmate’s legitimate expectation of the benefit which creates the protected constitutional interest, however, not the possibility that a benefit may be received. Thus, the structure of the decision-making process is at least as important as the likely result of the process. If access to a program is based upon objective criteria, individuals satisfying such criteria may possess a legitimate expectancy worthy of constitutional protection. When access to such programs is contingent upon subjective factors no such expectancy is warranted and no constitutional right arises (see, Greenholtz v Nebraska Penal Inmates, supra, at 9-10; and see, Leis v Flynt, 439 US 438, 441-442; Board of Regents v Roth, 408 US 564, 577-578; Perry v Sindermann, 408 US 593, 599-603).

Given the present regulatory scheme of the Family Reunion Program, petitioners could have no legitimate expectation that they would be afforded conjugal visits. The regulations provide that in determining whether a particular prisoner shall be granted access to the program, in those institutions maintaining one, respondents must consider and balance 15 guidelines. Many of these entail consideration of subjective factors, including qualitative estimates of the extent to which the prisoner has been rehabilitated and whether he has a propensity for disruptive behavior or sexual misconduct. Although the regulations establish guidelines, the guidelines do not create an entitlement of conjugal visits because the review system is heavily discretionary and holds out no more than the possibility of conjugal visits (see, Matter of Russo v State Bd. of Parole, supra, at 75; Greenholtz v Nebraska Penal Inmates, supra, at 9-12; Boothe v Hammock, 605 F2d 661, 663-664; cf., Board of Regents v Roth, supra; Perry v Sindermann, 408 US 593, supra). Moreover, even though an inmate has previously been approved and participated in the program, there can be no legitimate expectation of continued participation because the regulations provide that inmates must reapply each time they seek a visit, and each application is subjected to a new discretionary review (7 NYCRR 220.4 [a] [2] [iv]X

In sum, the limitations of prison life require that an inmate forfeit his right to marital intimacy. Respondents’ institution of a Family Reunion Program does not revive that right nor does it create an analogous liberty interest because, given the program’s discretionary nature, inmates do not have a legitimate expectation that they will participate in it.

Petitioners’ final constitutional contention is that the manner in which the conjugal visit program was administered in this case violated their right to equal protection of the laws (US Const, 14th Amend, § 1; NY Const, art I, § 11). Petitioners contend they were denied equal protection because respondents did not afford them conjugal visits when such visits were permitted between other prisoners and their spouses.

It is settled that the right to equal protection of the laws survives incarceration (see, Lee v Washington, 390 US 333, supra; Durso v Rowe, 579 F2d 1365, cert denied 439 US 1121) and that administrative as well as legislative classifications are subject to equal protection review (see, Turner v Safley, 482 US —, 107 S Ct 2254, supra; Buckley v Coyle Pub. School Sys., 476 F2d 92). Equal protection does not require absolute equality, however, or precisely equal advantages. Rather, in the absence of a classification affecting fundamental rights or creating suspect classifications which must be invalidated unless justified by some compelling State interest, equal protection requires only that a classification which results in unequal treatment rationally further "some legitimate, articulated state purpose” (McGinnis v Royster, 410 US 263, 270; Ross v Moffitt, 417 US 600; Foss v City of Rochester, 65 NY2d 247, 256-257; see also, Cordero v Coughlin, 607 F Supp 9, 10; see generally, 2 Rotunda-Nowak-Young, Constitutional Law, Substance and Procedure § 15.4, at 60, 65-69; § 18.3, at 322-324; see also, Merritt, Communicable Disease and Constitutional Law: Controlling AIDS, 61 NYU L Rev 739, 783-799 [1986]). Because the entitlement of selected inmates to conjugal visits is not a matter of constitutional right, and because the Department of Correctional Services, in distinguishing prisoners with communicable diseases from those not similarly situated, has not based its decision on a suspect classification, petitioners’ equal protection claim must be rejected if the Correction Department’s ruling bears a rational relationship to a legitimate State purpose.

It is recognized that the State has a substantial interest in preventing the transmission and spread of communicable diseases (see, Jacobson v Massachusetts, 197 US 11, 27; Crayton v Larabee, 220 NY 493, 501). Acquired Immune Deficiency Syndrome is such a disease. It is caused by the human immunodeficiency virus, a virus transmitted by direct exposure to blood, semen or breast milk and which mothers also can transmit to their children before birth. Many infected individuals remain asymptomatic for long periods of time but they represent a significant health concern because authorities generally agree that once the virus enters a person’s body it is virtually impossible to eliminate from the system and may eventually lead to AIDS or AIDS Related Complex, a less serious condition. Once acquired, AIDS undermines the human body’s ability to combat infection, it is incurable and it is almost always fatal (see, National Institute of Justice, U.S. Department of Justice, AIDS in Prisons and Jails: Issues and Options [1986]; Merritt, Communicable Disease and Constitutional Law: Controlling AIDS, 61 NYU L Rev 739, 742-754; Orland and Wise, The Aids Epidemic: A Constitutional Conundrum, 14 Hofstra L Rev 137, 143-148 [1985]). Given the recognized danger of AIDS and the fact that respondents cannot guarantee the disease would not be spread to a nonprisoner if petitioners are afforded conjugal visits, respondents had a rational basis for their determination that it was a communicable disease and for their decision to deny John Doe’s application because he was suffering from it. Petitioners’ contentions that AIDS is not highly contagious, that they would reduce the danger of its transmission through safe sexual practices, or that they might not engage in sexual relations during a trailer visit does not make respondents’ decision any less rational (see, Jacobson v Massachusetts, supra, at 30-31). The possibility remains that permitting petitioners’ participation in the conjugal visit program may result in the spread of a serious communicable disease.

Petitioners also maintain that respondents’ decision may not stand because it is based upon respondents’ concern for the health of nonprisoners. Relying upon Pell v Procunier (417 US 817, 822, supra), they assert correction authorities may only limit inmate rights in accordance with "penological objectives” and that respondents exceeded their power in this case because they relied on societal, not penal, concerns in denying John Doe’s application. The dissent presents a variation of the same argument. It assumes that petitioners retain a fundamental right to marital intimacy despite John Doe’s confinement and it contends, therefore, that denying conjugal visits must be justified by some penological purpose.

The argument fails to recognize that petitioners’ claim differs from that presented in Pell and similar cases. Pell addressed the power of correction officials to restrict an inmate’s fundamental constitutional right to freedom of speech. Since that right is not inconsistent with incarceration and survives the inmate’s confinement, the court held that any limitation of it must be narrowly tailored and justified by penological objectives (see, Pell v Procunier, supra; see also, Turner v Safley, 482 US —, 107 S Ct 2254, supra; Matter of Rivera v Smith, 63 NY2d 501, 510, supra). We have recognized in this case that the fundamental constitutional right to privacy includes a right to marital intimacy, but we agree with the overwhelming, perhaps unanimous, body of judicial authority that all inmates, whether they are infected with communicable diseases or not, forfeit this right upon incarceration for the most basic and legitimate penological reasons, punishment, security and deterrence. That conjugal programs have been instituted in some institutions does not revive the right forfeited by confinement. To hold otherwise would be tantamount to saying that an inmate when incarcerated does not forfeit his constitutional right to travel if prerelease home visit programs are established at some facilities.

In sum, the contested regulations here differ from those in Pell which restricted rights retained by prisoners because rather than restrict a right, they regulated a benefit available to those qualified.

Moreover, respondents acted in conformity with authority granted to them by the Legislature. The conjugal visit program is a rehabilitative measure established pursuant to statutory directive to assist "sentenced persons to live as law abiding citizens” (Correction Law § 70 [2]; see, 7 NYCRR 200.1, 220.1; Jacobs and Steele, Sexual Deprivation and Penal Policy, 62 Cornell L Rev 289, 292 [1977]; Note, Conjugal Visitation Rights and the Appropriate Standard of Judicial Review for Prison Regulations, 73 Mich L Rev 398, 419). The establishment of such programs comes within the authority delegated to correction officials to exercise general responsibility for care and confinement of criminals and for instituting programs for their treatment and rehabilitation. The fulfillment of those penological objectives requires administrative regulations consistent not only with the safety and health of those within the prison facility, but also with the safety of society generally. Indeed, Correction Law § 70 (2) (a) specifically directs that the Department of Correctional Services must, in maintaining prison facilities and establishing rehabilitation programs, give "due regard to * * * the safety and security of the community”. Preventing the spread of communicable diseases to those outside the prison comes within the statutory direction. The dissent asserts that the Commissioner is barred from considering health when he acts to protect the safety and security of the public under Correction Law § 70 (2) (a). This conclusion defies the settled rules of statutory interpretation, and offends logic as well; it would leave the Commissioner powerless to contain even an epidemic from spreading beyond an institution.

The courts traditionally have deferred to the discretion of correction officials on matters relating to the administration of prison facilities and rehabilitation programs (see, Reddin v Israel, 455 F Supp 1215, 1222; Hayes v Cuyler, 475 F Supp 1347, 1350; O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400, 2407, supra; see also, Block v Rutherford, 468 US 576, 584-585; Bell v Wolfish, 441 US 520, 547, supra). As long as the line drawn between those entitled to participate and those excluded is rationally drawn, the courts will not interfere (see, French v Heyne, 547 F2d 994, 998). In this case, respondents had the power to institute a conjugal visit program and to determine who should participate in it. Since the classifications they adopted for that purpose bore a rational relationship to the proper and successful operation of the program and particularly to the spread of communicable diseases to nonprisoners, it did not violate petitioners’ rights to equal protection of the laws. Finally, we note that Jane Doe’s rights are no greater than those of her husband under the circumstances presented, and her constitutional claim also was properly denied (see, Payne v District of Columbia, 253 F2d 867, supra; Lyons v Gilligan, 382 F Supp 198, supra).

B

Petitioners contend further that even if their constitutional rights have not been violated, respondents’ determination should be set aside pursuant to CPLR 7803 (3) as arbitrary and capricious. Their argument is that correction officials erred in classifying AIDS as a communicable disease; they support it by noting that regulations promulgated by the Health Department classify AIDS as a "reportable” disease, not a "communicable” disease (see, 10 NYCRR 2.1, 24-1.1).

Regardless of the Health Department’s regulations, however, it is agreed that AIDS can be transmitted from person to person by direct exposure to blood, semen or breast milk. That being so, AIDS is routinely viewed as a communicable disease (see, National Institute of Justice, U.S. Department of Justice, AIDS in Prisons and Jails: Issues and Options, op. cit.; Spiegel, Privacy, Sodomy, AIDS & The Schools: Case Studies in Equal Protection, 1986 Ann Survey of Am L 221, 247, n 174; McGuirl and Gee, AIDS: An Overview of the British, Australian, and American Responses, 14 Hofstra L Rev 107 [1985]). Respondents’ determination is consistent with this view and their efforts to prevent its transmission during conjugal visits were therefore rational and should be upheld irrespective of the definition set forth in the Health Department regulations (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231).

C

Finally, John Doe contends respondents violated his rights as a handicapped person protected by section 504 of the Federal Rehabilitation Act of 1973 (29 USC § 794). Respondents reply that in this case they are not subject to the provisions of the act. Assuming they are, however, John Doe must demonstrate he is "otherwise qualified” to participate in the conjugal visit program to state a section 504 claim (id.; School Bd. v Arline, 480 US 273, 107 S Ct 1123, 1131, n 17). "An otherwise qualified person is one who is able to meet all of a program’s requirements in spite of his handicap” (Southeastern Community Coll, v Davis, 442 US 397, 406). To be qualified for participation in the Family Reunion Program, applicants must be free of communicable disease. Because John Doe was afflicted with AIDS, and AIDS is a communicable disease, he was not qualified for the program and was reasonably excluded. He thus has no section 504 claim.

Accordingly, the order of the Appellate Division should be affirmed.

Bellacosa, J.

(concurring). I concur in Judge Simons’ opinion and rationale for affirmance in this case, noting, however, that as to other facets of inmates’ rights to privacy which might implicate fundamental constitutional protections, a higher test than rational basis would be necessary to pass constitutional challenge, as Chief Judge Wachtler’s separate concurring opinion has stated.

Chief Judge Wachtler (concurring). I agree that the order of the Appellate Division should be affirmed. However, I reach this conclusion upon different grounds and do not agree that our inquiry is limited to a rational basis analysis.

I do not view as dispositive the cases cited by the plurality in concluding that no constitutional right is implicated here (see, Board of Pardons v Allen, 482 US —, 107 S Ct 2415 [mandatory language in statute created a liberty interest]; Matter of Russo v State Bd. of Parole, 50 NY2d 69 [statute requiring application of subjective criteria does not create a liberty interest]; Matter of Mary of Oakknoll v Coughlin, 101 AD2d 931 [the State is not required to establish conjugal visitation programs]). Unlike those authorities, the case before us is more reminiscent of instances in which a prisoner has no liberty interest in participating in a program, yet a higher standard of scrutiny is required because the decision to disallow participation is based upon how the inmate will exercise other, constitutionally protected rights (see, e.g., French v Heyne, 547 F2d 994; McCalvin v Fairman, 603 F Supp 342).

I feel that it must be recognized that the decision at issue here was not based, for example, upon the Commissioner’s dispassionate assessment of the extent of prison resources (see, Matter of Mary of Oakknoll, supra) or upon an inmate’s level of rehabilitation (see, Brandon v District of Columbia Bd. of Parole, 631 F Supp 435). Instead, his decision was based upon a calculated risk that, if left alone, the inmate and his wife as a married couple would engage in sexual relations. I believe, therefore, that because this decision encroached upon "the most personal aspects of the marriage commitment,” it raises constitutional implications (see, Turner v Safley, 482 US —, 107 S Ct 2254).

I agree with the result reached by the plurality, however, because I believe that under the higher scrutiny required by the implication of a constitutional right the Commissioner’s decision has a sufficient basis (see, Turner v Safley, 482 US, at —, 107 S Ct, at 2261, supra [although affecting a constitutional right, a prison regulation is valid if it is " 'reasonably related’ to legitimate penological interests”]; O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400, 2405 [the prison regulation "must have a logical connection to legitimate governmental interests invoked to justify it.”]).

By statute the "safety and security of the community” are made penological objectives, and the Commissioner is expressly charged with the duty to act consistently with these objectives (Correction Law § 70 [2] [a]). I believe that this duty, and these penological objectives, reasonably include protecting a visitor to the prison from the risk of being exposed to a concededly fatal infectious disease.

I also note that petitioners are not arguing that alternative means of exercising the right remain open, that there exist alternative avenues, or that they can be accommodated in the sense that the benefits of the Family Reunion Program may be obtained in this case without exposing the visitor to the risk of infection. Nor do they argue that there are "easy alternatives” for accommodation that show that the Commissioner’s decision is an "exaggerated response” to the perceived risk (see, Turner v Safley, 482 US, at —, 107 S Ct, at 2262, supra).

It seems to me that consideration of alternatives to complete inaccess to the Family Reunion Program will be important in future cases. To an inmate with a terminal illness, the emotional support and commitment symbolized by marriage, which must be recognized in a prison context under Turner v Safley (supra), may be the only comfort that remains. Whether this requires implementation of alternatives such as more structured family reunion visits awaits analysis in a future case and implicates fundamental privacy rights which may not be controlled by a mere rational basis test.

For these reasons, I respectfully concur in result only.

Alexander, J.

(dissenting). Respondent, Commissioner of

the Department of Correctional Services, has denied petitioners, husband and wife, private family visits with one another at a correctional facility solely because the husband, an inmate, is suffering from Acquired Immune Deficiency Syndrome (AIDS). The basis for respondent’s determination — to shield petitioner wife from infection should the two decide to engage in sexual relations — invades an area of personal decision-making between a married couple embraced by their marital privacy right, and invidiously discriminates against petitioners in a way that burdens the exercise of that fundamental right. Moreover, respondent advances neither an institutional concern nor a penological purpose in support of his determination. In finding that respondent’s purpose need only be supported by some rational basis, the plurality disregards important constitutional principles, both State and Federal, and together with the concurrence, which also adopts the position that a higher level of scrutiny is required, reaches a result that, in our view, is unsupportable. We therefore respectfully dissent.

I.

A

It may no longer be disputed that personal decisions intimately involving marital and familial relations are constitutionally protected from governmental interference (see, e.g., Roe v Wade, 410 US 113 [abortion]; Eisenstadt v Baird, 405 US 438 [contraception]; Loving v Virginia, 388 US 1 [interracial marriage]; Griswold v Connecticut, 381 US 479 [contraception]; Prince v Massachusetts, 321 US 158 [family relationships]; Skinner v Oklahoma, 316 US 535 [procreation]; Pierce v Society of Sisters, 268 US 510 [child rearing]). Marriage and procreation particularly are rooted in our most basic liberties, and have been characterized as "the foundation of the family and of society, without which there would be neither civilization nor progress” (Maynard v Hill, 125 US 190, 211), and as "fundamental to the very existence and survival of the race” (Skinner v Oklahoma, 316 US 535, 541, supra). Thus, among those decisions that an individual may make free of unjustified government intrusion are "personal decisions 'relating to marriage’ ” (Carey v Population Servs. Intl., 431 US 678, 684-685, quoting Roe v Wade, 410 US 113, 152-153, supra; see also, Zablocki v Redhail, 434 US 374, 385). In short, the freedom of personal choice in matters of marriage is safeguarded by the individual’s constitutional right of privacy (Zablocki v Redhail, 434 US 374, 385, supra; Griswold v Connecticut, 381 US 479, 486, supra; Matter of L. Pamela P. v Frank S., 59 NY2d 1, 6; Crosby v State of New York, Workers’ Compensation Bd., 57 NY2d 305, 311-312; People v Onofre, 51 NY2d 476, 486; Cooper v Morin, 49 NY2d 69, 80).

Certainly, the decision of a married couple to risk the consequences of sexual intercourse (such as pregnancy, abortion, infection) falls within the scope of those personal intimate decisions relating to matters of marriage that are constitutionally protected (see, Griswold v Connecticut, 381 US 479, supra, and progeny). Without question, if petitioner husband was not an inmate, he and his wife could not be denied the right to be together as a married couple, and to engage in sexual relations — despite his affliction with AIDS — absent a compelling government purpose, and the most narrowly tailored means to achieve that purpose (see, Zablocki v Redhail, 434 US 374, 388, supra; Carey v Population Servs. Intl., 431 US 678, 686, supra; Matter of L. Pamela P. v Frank S., 59 NY2d 1, 6, supra). Similarly, a compelling State interest and the least onerous means to achieve it would be required were the State to discriminate between individuals outside of prison in a way that burdened the exercise of the marital privacy right (Shapiro v Thompson, 394 US 618 [denial of welfare benefits may not burden fundamental right to travel]). Petitioner husband is incarcerated however. We are therefore called upon to gauge the effect of incarceration on petitioners’ claim that respondent’s determination to deny him admission to the Family Reunion Program solely because he has AIDS unreasonably intrudes upon a personal decision between him and his wife relating to their marriage and unfairly distinguishes petitioner husband from other inmates admitted to the program.

Incarceration necessarily results in the withdrawal or limitation of many privileges and rights (Pell v Procunier, 417 US 817, 822; Cruz v Beto, 405 US 319, 321; Price v Johnston, 334 US 266, 285; Matter of Rivera v Smith, 63 NY2d 501, 510; Matter of Brown v McGinnis, 10 NY2d 531, 536). Marital and familial rights in general are also restricted, not only by the fact of incarceration, but also by the penological purposes of incarceration (Turner v Safley, 482 US —, 107 S Ct 2254; see generally, Note, Conjugal Visitation Rights and the Appropriate Standard of Judicial Review for Prison Regulations, 73 Mich L Rev 398, n 7). Such a deprivation of rights is undoubtedly justified by the considerations underlying our penal system (Pell v Procunier, 417 US 817, 822, supra; Matter of Rivera v Smith, 63 NY2d 501, 510, supra). It is settled, however, that certain constitutional rights — including the right to marry — survive incarceration (Turner v Safley, 482 US —, 107 S Ct 2254, supra; Matter of Rivera v Smith, 63 NY2d 501, 510, supra). Although, "with the closing of the prison doors behind him an inmate loses, or must endure substantial limitations on, many rights and privileges he previously enjoyed” (Matter of Rivera v Smith, 63 NY2d 501, 510, supra), the "[p]rison walls do not form a barrier separating [an inmate] from the protections of the Constitution” (Turner v Safley, 482 US, at —, 107 S Ct, at 2259, supra). Thus, an inmate does not forfeit all constitutional protection upon conviction and incarceration, but retains those rights that " 'are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system’ ” (Turner v Safley, 482 US, at —, 107 S Ct, at 2265, supra; O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400; Bell v Wolfish, 441 US 520, 545; Pell v Procunier, 417 US 817, 822, supra; Matter of Rivera v Smith, 63 NY2d 501, 510, supra; Abdul Wali v Coughlin, 754 F2d 1015, 1028-1029).

Accordingly, it has been held that prisoners retain, for example, the right to due process (Wolff v McDonnell, 418 US 539, 546), the right to petition the government for the redress of grievances (Johnson v Avery, 393 US 483), the right not to be subject to cruel and unusual punishment (Estelle v Gamble, 429 US 97), and the right to equal protection of the laws (Lee v Washington, 390 US 333). Inmates also retain those rights guaranteed by the First Amendment, and may exercise them to the extent it would not be inconsistent with their status as prisoners and with the legitimate restrictions imposed by confinement (Pell v Procunier, 417 US 817, supra). So too, do they retain basic liberties guaranteed by our State Constitution unless outweighed by the competing concerns of security, penology or prison administration (Matter of Rivera v Smith, 63 NY2d 501, supra; Cooper v Morin, 49 NY2d 69, supra; Matter of Brown v McGinnis, 10 NY2d 531, supra; Powlowski v Wullich, 102 AD2d 575). We have recognized in this respect the importance to those who are confined of maintaining marital and familial bonds, when we held that our State Due Process Clause affords to pretrial detainees the right to contact visits with family and loved ones (see, Cooper v Morin, 49 NY2d 69, 81, supra; cf., Block v Rutherford, 468 US 576, 586 [pretrial detainees have no Federal right to contact visits]). Moreover, the marriage relationship itself is constitutionally protected, even in the prison context, for "[m]any important attributes of marriage remain * * * after taking into account the limitations imposed by prison life” (Turner v Safley, 482 US, at —, 107 S Ct, at 2265, supra; see also, Cooper v Morin, 49 NY2d 69, supra).

Respondent has established the Family Reunion Program at certain facilities to allow qualified inmates to visit privately with their spouses and various family members (7 NYCRR 220.3 [d]). The very existence of the program attests to respondent’s determination, in his sound judgment and expertise as a prison administrator, that private family visits between inmates and their spouses serve an important rehabilitative function. Indeed, the stated purpose of the program is "to preserve, enhance and strengthen family ties that have been disrupted as a result of incarceration” (7 NYCRR 220.1). Thus, respondent has extended to eligible inmates the opportunity to engage in conjugal visits — in other words the opportunity to exercise a fundamental aspect of the marital right — notwithstanding the fact of incarceration. In so doing, respondent has concluded that participation in the Family Reunion Program at those facilities where it has been established is consistent with institutional administration and security, and with legitimate penological goals.

That respondent has created the program does not vest in petitioners the right to conjugal visitation, for convicted prisoners have no right per se to conjugal visits. Indeed, petitioners neither assert that respondent is required to establish a conjugal visitation program, nor do they argue that respondent must affirmatively provide all inmates access to the Family Reunion Program at facilities where it is instituted. Any analogy to those cases holding that a discretionary parole program does not vest in an inmate a “liberty interest” is therefore inapposite (see, e.g., Matter of Russo v State Bd. of Parole, 50 NY2d 69 [conditional parole program]; Greenholtz v Nebraska Penal Inmates, 442 US 1 [same]).

Merely because respondent is not required to establish a Family Reunion Program, however, does not mean that once a program is instituted, he may condition petitioner husband’s eligibility in any way he sees fit. For although admission to the program is not by itself a right, the decision to engage in or abstain from sexual relations once admitted to the program implicates an aspect of the fundamental marital right — an aspect of the marital right that respondent has given inmates the opportunity to exercise. Yet respondent denies to these petitioners the benefits of the program solely because of the manner in which they may choose to exercise their marital right. The basis for this determination, in effect, invades a part of the fundamental marital right — the area of personal intimate decision-making between husband and wife — that survives incarceration. The interest of a married couple in being permitted to make for themselves the intimate and personal decision, free of government intrusion — whether to engage in sexual relations — is fundamental and of recognized constitutional dimension (cf., French v Heyne, 547 F2d 994 [vocational training in prison]). Moreover, respondent discriminates against petitioner husband by treating him differently from like-situated inmates at the facility in a way that burdens the exercise of the marital privacy right (see, US Const 14th Amend; NY Const, art I, § 11; Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 75, supra; O’Brien v Skinner, 414 US 524).

B

In assessing an inmate’s constitutional challenge to a prison regulation or policy, we must look to whether there has been asserted a legitimate penological purpose for the restriction, for if there has been, the regulation must be upheld (Turner v Safley, 482 US —, 107 S Ct 2254, 2261, supra; O’Lone v Estate of Shabazz, 482 US —, 107 S Ct 2400, 2404, supra; Block v Rutherford, 468 US 576, 589, supra; Bell v Wolfish, 441 US 520, 546-547; Jones v North Carolina Prisoners’ Union, 433 US 119, 130-133; Pell v Procunier, 417 US 817, 823, supra; Matter of Rivera v Smith, 63 NY2d 501, 510, supra). Recently, the Supreme Court has again articulated the standard according to which courts are to review constitutional challenges to prison restrictions: "when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests” (Turner v Safley, 482 US, at —, 107 S Ct, at 2261, supra [emphasis added]; see also, O’Lone v Estate of Shabazz, 482 US, at —, 107 S Ct, at 2404, supra). While this standard does not compel a "strict scrutiny” of the regulation, neither is it satisfied upon the finding of a mere "rational basis” related to a general State interest. Our inquiry demands of the challenged prison regulation or practice that it further a legitimate institutional or penological purpose.

The Supreme Court has identified various factors particularly pertinent to a determination of the reasonableness of a prison restriction that impinges on constitutional rights: first, whether there is a valid logical connection between the prison regulation and the institution’s interest put forward to justify it; second, whether there are alternative means of exercising the right that remain open to prison inmates; third, whether accommodation of the asserted constitutional right will adversely impact on correction employees, on the prison population, and on the allocation of prison resources; fourth, whether there are ready alternatives available to prison authorities to adequately address the concerns advanced. In respect to this last factor, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an "exaggerated response” to prison concerns (Turner v Safley, 482 US, at —, 107 S Ct, at 2260-2262, supra; see also, O’Lone v Estate of Shabazz, 482 US, at —, 107 S Ct, at 2405-2406, supra).

Although in somewhat different terms, we have articulated the analysis appropriate to a State constitutional challenge of a prison regulation or practice. What is required is a balancing of the competing interests at stake: where a constitutional infringement results from a prison restriction, the infringement must be weighed against "the institutional needs and objectives being promoted” by the restriction (see, Matter of Rivera v Smith, 63 NY2d 501, 511, supra; Matter of Mary of Oakknoll v Coughlin, 101 AD2d 931, 932). Thus, in the context of pretrial detainees, for example, we held that our State Due Process Clause requires us to balance the harm to the individual resulting from a deprivation of contact visits with family against the legitimate purposes for pretrial detention (Cooper v Morin, 49 NY2d 69, 79, supra [distinguishing between the purposes for confinement of pretrial detainees and confinement of convicted prisoners]; Powlowski v Wullich, 102 AD2d 575, 585, supra). Despite the lack of identical terminology, what is central to both Federal and State approaches is a weighing or balancing of the nature and importance of the right asserted against the purposes advanced for the prison regulation or practice. And, critical to either analysis is that the interest advanced by the prison relate to the purposes or administration of correction facilities.

Also to be considered in reaching the appropriate balance of these factors is the difficulty of the judgments required of prison authorities in the administration of correctional institutions (see, Turner v Safley, 482 US —, 107 S Ct 2254, supra; Pell v Procunier, 417 US 817, 827, supra). Prison administrators — charged with the responsibility "to secure their institutions against escape, to prevent the transfer or possession of contraband, and to protect the safety of inmates and prison employees” — are faced with the formidable task of managing the "daily activities of a large number of inmates who have been confined due to their criminal, and often violent conduct” (Matter of Rivera v Smith, 63 NY2d 501, 512, supra; see, Procunier v Martinez, 416 US 396, 404; Cruz v Beto, 405 US 319, 321, supra). They are vested with broad discretion to accomplish their duties under the necessary order and discipline (Matter of Rivera v Smith, 63 NY2d 501, 512-513, supra). Courts, on the other hand, are ill equipped to resolve problems of prison administration (Procunier v Martinez, 416 US 396, 405, supra), and our " 'inquiries spring from constitutional requirements * * * rather than * * * idea[s] of how best to operate a [correction] facility’ ” (Powlowski v Wullich, 102 AD2d 575, 582-583, supra, quoting Bell v Wolfish, 441 US 520, 539, supra). Mindful of these principles, we turn to the particular prison restriction at issue.

II.

In October 1985, petitioner husband was approved for participation in the Family Reunion Program at the Auburn Correctional Facility. At that time, he satisfied all the requirements for eligibility (see, 7 NYCRR 220.1 et seq.). Indeed, petitioners completed a successful Family Reunion Program visit in November 1985. In December 1985, petitioner husband was diagnosed as suffering from AIDS and placed in the Auburn Hospital unit. Since then, petitioner wife has been able to have contact visits with her husband, albeit under strained conditions; petitioner husband must sit in a chair in the doorway of the isolation room while his wife sits in the hospital’s main corridor — with a table placed between them and a correction officer in close proximity. During the months following the diagnosis, both petitioners sought counseling from responsible public organizations regarding so-called "safe sex” practices and other precautions to avoid infection. Petitioner wife was also advised of the importance to her husband’s health of providing emotional support and maintaining the family bond, and of her critical role in that regard. In February 1986, petitioner husband applied again for admittance to the program so that he and his wife could spend time alone together. Respondent denied petitioner husband’s application because he was diagnosed as having a communicable disease (see, 7 NYCRR 220.3 [c] [8]). Pending this appeal, petitioner husband’s application to visit privately with other family members as permitted by the Family Reunion Program was also denied for the same reason.

On petitioners’ challenge of that determination in this article 78 proceeding, respondent asserts as a justification for its policy the danger that petitioner husband may infect his wife with AIDS, and that the State has an interest in reducing the incidence of AIDS. It must be observed that we are not to hypothesize some penological interest on respondent’s behalf. This being an administrative determination, as opposed to a legislative enactment, we "may not supply a reasoned basis for the agency’s action that the agency itself has not given” (see, Motor Vehicle Mfrs. Assn. v State Farm Mut., 463 US 29, 43; Securities Commn. v Chenery Corp., 332 US 194, 196). Respondent does not articulate any concern for institutional security, does not identify any interest in the safety of petitioner husband or the prison employees, and does not advance a single interest that would further a penological purpose or facilitate prison administration.

Instead, respondent claims to be justified in his action by the broadest of government objectives: the possible reduction of the transmission of communicable disease throughout the population at large. This is not an instance where a nonprisoner has been diagnosed as having AIDS, which might justify precluding a conjugal visit with an AIDS-free inmate spouse to reduce the spread of the virus throughout the prison population. Respondent’s determination has no impact on the prison community. The asserted interest is not a penological one. Respondent has not shown how its policy bears any relationship to the traditional purposes for incarceration, or how it addresses concerns for institutional security and administration (see, e.g., Johnson v Rockefeller, 365 F Supp 377, affd sub nom. Butler v Wilson, 415 US 953 [prohibition on marriage for inmates sentenced to life imprisonment was part of punishment for crime]; Matter of Mary of Oakknoll v Coughlin, 101 AD2d 931, 932, supra [marriage license requirement reasonably related to prison administration of Family Reunion Program]). Neither has respondent demonstrated a valid logical connection between its determination and the asserted goal. Any connection between respondent’s policy and the asserted interest — obviously an important State interest, as the plurality points out (see, plurality opn, at 57) — is tenuous. Respondent’s determination, at bottom, is based on a series of speculations and unwarranted presumptions: that petitioners necessarily will use their private time together to engage in sexual relations, that they necessarily will disregard the advice of their professional health care counselors and not employ "safe sex” techniques, that petitioner wife necessarily will contract AIDS from her husband, and that petitioner wife necessarily will engage in adulterous sexual activities with others — without the use of prophylactics — and thereby transmit the virus to the population at large. On this record, which demonstrates that petitioners have sought the information and advice of professionals and are prepared to act in conformity therewith, the purported connection is so remote as to render the determination to deny these petitioners entirely the benefits of the Family Reunion Program irrational and unjustifiable.

Even if the connection between respondent’s determination and its goal were less tenuous, the deprivation of all access to the program represents an "exaggerated response” to petitioner husband’s illness (see, Turner v Safley, 482 US, at —, 107 S Ct, at 2262-2264, supra). There are obvious, easy alternalives to respondent’s policy that accommodate the substantial interests of petitioners while imposing de minimis burdens on respondent’s resources. Significantly, respondent’s own regulations do not provide that all inmates with a communicable disease are not qualified for the Family Reunion Program; rather they provide that an applicant with a diagnosed communicable disease must receive a special review (7 NYCRR 220.3 [c] [8]) and that if there is evidence of a recent communicable disease that presents a serious risk of contagion, prospective visitors should be so advised (see, 7 NYCRR 220.4 [a] [2] [iii]). That respondent has precluded petitioner husband from visiting privately with other family members — to whom petitioner husband could not transmit AIDS according to the medical evidence in the record — further undermines any purported rationality and highlights the exaggerated nature of respondent’s response.

Not only is respondent’s determination not predicated on legitimate correction goals, his stated justification is aimed solely at nonprisoners. In Procunier v Martinez (416 US 396, supra), the Supreme Court recognized that prison regulations may impermissibly impinge upon the rights of nonprisoners. There, the court invalidated a State prison regulation requiring the censorship of inmate mail, finding that mail censorship implicated more than the First Amendment rights of prisoners and therefore required more than a mere rational basis. The court observed that "[b]oth parties to the correspondence have an interest in securing that result, and censorship of the communication between them necessarily impinges an the interests of each [as mail correspondence is] a particular means of communication in which the interests of both parties are inextricably meshed” (Procunier v Martinez, 416 US 396, 408-409, supra [emphasis added]). Similarly, in Turner v Safley (482 US —, 107 S Ct 2254, supra), the Supreme Court invalidated a State prison regulation that prohibited marriages between inmates and between inmates and civilians, noting that this "regulation may entail a 'consequential restriction on the [constitutional] rights of those who are not prisoners’ ” (Turner v Safley, 482 US, at —, 107 S Ct, at 2266, supra, quoting Procunier v Martinez, 416 US 396, 409, supra). Here, respondent’s determination to preclude petitioner husband from the Family Reunion Program because he might infect his wife incidentally impinges on and consequently restricts her personal decision to engage in sexual intercourse and risk infection — a decision protected by her marital privacy right. While we need not reach the issue of whether this incidental effect on petitioner wife’s marital privacy right warrants application of the Martinez standard, recognition of it serves to underscore the requirement of some institutional or penological purpose for the restriction on petitioner husband’s right.

Neither does any provision in the Correction Law suggest that respondent’s action in excluding petitioners from the Family Reunion Program furthers a penological purpose. Correction Law § 70 (2) entrusts to respondent the responsibility to care for inmates and to assist them "to live as law abiding citizens”. In furtherance of this objective, respondent may establish programs "not inconsistent with other provisions of law” and "with due regard to * * * the safety and security of the community” (Correction Law § 70 [2] [a]). The purpose of the statute is to enable respondent to structure programs that reintegrate the inmate with society and reduce recidivism (see, Correction Law § 70, L 1970, ch 476, Governor’s Memorandum, and Memorandum of State Executive Department, 1970 McKinney’s Session Laws of NY, at 3101, 2944). The "safety and security of the community”, therefore, does not encompass matters of community health, but relates to the protection of the community from dangerous criminals who respondent may consider releasing into the community as members of a rehabilitation program. In this respect, it bears noting that the Legislature has not delegated to the Department of Correctional Services the authority to regulate in matters relating to public health (see, Public Health Law § 225 [4] [authority delegated to the Public Health Council]). While safeguarding the health of the community is undeniably a matter of public interest in the general sense, it is not a penological purpose that will justify the defeat of petitioners’ claim. Prison administrators, it is true, are called upon to undertake "Herculean tasks” requiring expertise, planning and resources (Procunier v Martinez, 416 US 396, 405, supra). Nevertheless, the very reason for judicial deference to their judgment is because it is exercised in the area of their particular expertise. The rationale for deferring to prison administrators loses force when they attempt to regulate in an area such as this which does not involve penological expertise.

Under the balancing approach adopted in this State, the conclusion that respondent’s determination unreasonably impinges upon petitioners’ substantial marital privacy right and invidiously excludes petitioner husband from the Family Reunion Program is equally inescapable (see, Matter of Rivera v Smith, 63 NY2d 501, supra; Cooper v Morin, 49 NY2d 69, supra). On the one hand, petitioners have asserted a significant interest in not being excluded from the program unfairly. On the other hand, where we ordinarily weigh the concerns advanced by the prison authorities for internal security, penology or prison administration, no such interest has been proffered. Our conclusion, therefore, that respondent’s determination is an exaggerated response to petitioner husband’s illness with no reasonable relationship to a legitimate penal purpose rests equally on an "adequate and independent” State ground (Michigan v Long, 463 US 1032, 1041-1042). In this regard, this court has frequently enforced the protection of individual rights under our State Constitution even where the Federal Constitution either did not or might not afford such protection (see, e.g., Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57; People v Stith, 69 NY2d 313, 316, n; People ex rel. Arcara v Cloud Books, 68 NY2d 553; People v P. J. Video, 68 NY2d 296; People v Class, 67 NY2d 431, 433; People v Adams, 53 NY2d 241, 250). Nor has this court hesitated to accord to individuals protection under our State Constitution from governmental intrusion into intimate and private aspects of their lives (see, Matter of Patchogue-Medford Congress of Teachers v Board of Educ., 70 NY2d 57, 66, 68, supra; Rivers v Katz, 67 NY2d 485), including the fundamental right to marriage and family life (see, Cooper v Morin, 49 NY2d 69, supra; People ex rel. Portnoy v Strasser, 303 NY 539, 542).

In sum, respondent has not proffered an institutional or penological purpose for classifying petitioner husband differently from other qualified applicants and invidiously excluding him from the Family Reunion Program because he suffers from AIDS. Indeed, respondent has not proffered any purpose in precluding these petitioners from being together as a married couple that outweighs the significant interest — vital to this married couple — of having time alone together under the program. We conclude therefore that respondent’s asserted objective does not justify the intrusion on their marital prerogative to engage in or abstain from sexual relations, nor does it warrant treating petitioner husband differently from other eligible inmates in such a way as to effect a total deprivation of the benefits of the Family Reunion Program (see, e.g., City of Cleburne v Cleburne Living Center, 473 US 432, 450; O’Brien v Skinner, 414 US 524, supra; Skinner v Oklahoma, 316 US 535, 541, supra; McMinn v Town of Oyster Bay, 66 NY2d 544, 549; People v Liberta, 64 NY2d 152). Petitioner husband, having met all the requirements for eligibility and having been approved, should not now be denied readmission to the program on the sole basis that he has contracted AIDS and may infect his wife through sexual relations. That determination, intruding as it does upon the marital privacy right of both petitioners, and discriminating as it does against petitioner husband without a purpose reasonably related to a legitimate penological purpose, should not be upheld.

III.

In view of the foregoing, we do not reach any issue in respect to section 504 of the Federal Rehabilitation Act of 1973 (29 USC § 794), and would reverse the order of the Appellate Division.

Judges Titone and Bellacosa concur with Judge Simons; Judge Bellacosa concurs in a concurring memorandum; Chief Judge Wachtler concurs in result in a separate opinion; Judge Alexander dissents and votes to reverse in another opinion in which Judges Kaye and Hancock, Jr., concur. Order affirmed, without costs.

      . The 15 factors are the prisoner’s: (1) length of time in incarceration; (2) degree of institutional adjustment; (3) eligibility for temporary release; (4) security classification; (5) assignment to a special housing unit; (6) pattern of disruptive behavior; (7) prior violations of Family Reunion Program regulations; (8) designation as a central monitoring case; (9) outstanding warrants; (10) nature of conviction; (11) parole violation status; (12) protective custody status; (13) participation in some other special program; (14) assignment to mental hygiene unit; (15) diagnosis as having a communicable disease (7 NYCRR 220.3 [a]-[c]).

      . The classification at issue — inmates with communicable diseases — is considerably broader than inmates with AIDS and would apply, for example, to inmates with hepatitis or venereal diseases.

      . The dissent contends that the rationale for respondent’s decision, injury to others outside the prison, is necessarily based on the speculation that Jane Doe will commit adultery. On the contrary, the HIV virus, once acquired, cannot be eliminated from a person’s body and given the possibility that Jane Doe may become pregnant and transmit the disease to her child or that she may become single in the future, either by divorce or widowhood, respondents’ concern manifestly extends beyond assumption of the risk involved to her personally.

      . The Supreme Court has articulated only some of the incidents of marriage that are unaffected by the fact of confinement or the pursuit of legitimate penological goals: the expression of emotional support and public commitment; the exercise of religious faith and personal dedication; and the status of marriage in relation to the receipt of certain government benefits and property rights (see, Turner v Safley, 482 US, at —, 107 S Ct 2254, 2265).

      . Respondent advanced a concern at the Appellate Division, since abandoned, that petitioner husband’s participation in the program would raise the risk of transmission to those prison employees responsible for cleaning the trailer facilities.

      . The Turner court, however, expressly declined to reach the issue of whether the regulation should be evaluated on the basis that it incidentally restricts the rights of nonprisoners inasmuch as it concluded that the marriage regulation did not withstand scrutiny under the "reasonable relationship to a penological purpose” test and thus violated the rights of the prisoners.