
    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.
     