ESPA Wades into Uncertain Waters

Marriage at the top of the agenda—but in the courts or in the Legislature in Albany?

When the historic decision granting same-sex couples marriage rights was overturned by Republican Mayor Michael Bloomberg’s appeal this month, there were no demonstrations in the streets or even press conferences decrying the reversal.

“We anticipated a negative decision,” said Alan Van Capelle, executive director of the Empire State Pride Agenda, New York’s leading LGBT lobby group. After consulting with Lambda Legal and the American Civil Liberties Union, the group decided “having a protest was not the tactic that would be most helpful,” drawing more attention as it would to a setback.

In an interview with Gay City News last Friday, Van Capelle and the Pride Agenda’s communications director, Joe Tarver, laid out a quieter, on-the-ground strategy for obtaining the right to marry and other advances for the LGBT community this coming year in an unpredictable political and legal environment in the state.

While Van Capelle said that they plan “nothing different” from the work they have been doing for the past two years on the marriage issue, more emphasis will be placed on it if only because of the events unfolding in the courts and in surrounding states. He noted that when the Court of Appeals, the state’s highest, finally rules on same-sex marriage, likely in 2007, the judges could not just affirm or deny that right, but also have the choice of throwing it to the Legislature to craft a solution that could be marriage or something short of it such as civil unions.

New York is one of the few states without a Defense of Marriage Act, though one is pending in Albany along with legislation granting equal marriage rights to same-sex couples. Van Capelle called marriage the “only acceptable mechanism” for granting full equality to lesbian and gay partners and pledged “we will not stop fighting unless we get marriage.”

In one sense, the Pride Agenda is hoping for a win on a prayer through the expansion of its Pride in the Pulpit project that has it coalescing religious support for LGBT rights. Many—though not all—of the roughly 500 religious leaders in the program support marriage rights for gay couples.

The group is also training Marriage Ambassadors around the state to raise the visibility of the issue in their local communities and to their elected representatives. In 2006, they are aiming to line up in-district visits with 100 members of the Legislature on marriage. (The State Assembly has 150 members, the Senate 61 and some number of those legislators, particularly in New York City, are already on board for gay marriage.)

Though the Democratic Party in the state took a stand in favor of same-sex marriage, there are no plans to demand a vote from the Assembly, controlled by the Dems, this year on the gay marriage bill. The Pride Agenda is pushing a package of incremental bills that “advance family and relationship issues.” Van Capelle said, “It would be helpful to have a statewide registry.”

Assemblywoman Deborah Glick, a West Village Democrat and dean of the gay and lesbian delegation in Albany, has observed the rhythms of the state capital since her election in 1990, but believes that 2006 portends a unique political landscape on LGBT issues and everything else coming before the Legislature.

As in every election year, “people get more cautious,” Glick said. “Pataki’s last year as governor will make things more difficult. He’s going to be more hardnosed and obstreperous as a conservative reaching out to the right wing,” as he pursues the Republican nomination for president in 2008.

Glick added that her Republican colleagues in both houses, especially those from Long Island where Democrats have made tremendous gains, are “going to be nervous” with the Democrats almost certain to have strong standard-bearers at the top of the ticket—Attorney General Eliot Spitzer as the nominee for governor and Hillary Rodham Clinton running for re-election to the U.S. Senate.

While most advocates of same-sex marriage see the Court of Appeals as the best hope for securing that right, the landscape there is anything but certain. The seven-member court has three appointees of Democrat Mario Cuomo and four of Republican George Pataki, with the term of George Bundy Smith, 68, a Cuomo pick, ending in September of 2006.

Crain’s NY Business reported that Pataki will “be under pressure to appoint a minority” like Bundy, who is African American and could even put the governor in a corner by asking for a one-year or other temporary extension of his term until he is required to retire at 70. Pataki might instead finesse the issue by appointing an African-American conservative, rather than potentially leave the appointment of a permanent successor to a Governor Spitzer.

Asked if his group was getting involved in the appointment of judges who are picked by the governor and confirmed by the State Senate, Van Capelle demurred, saying, “You can’t organize out in the community, lobby the Legislature, and wage a campaign on judicial candidates.”

Most observers do not expect a ruling on same-sex marriage from the state’s high court until 2007. All the standing decisions are against opening marriage to gay couples—four lower court rulings and Mayor Bloomberg’s successful appeal of the only positive decision in New York City.

The Appellate Division’s Third Department in Albany heard three grouped cases this fall and has yet to issue a decision, which has a decent chance of going in favor of the plaintiffs—including West Side Democratic Assemblyman Daniel O’Donnell—given how well the arguments were reported to have gone. The fifth case—based on a lawsuit of plaintiffs led by Nyack Mayor John Shields—has yet to be scheduled by the Second Department.

Senator Tom Duane, a Chelsea gay Democrat and chief sponsor of the gay marriage bill, said he is glad that the Pride Agenda is emphasizing the marriage issue because “in the past, they’ve been more focused on things leading up to it.” The lobby group will ask candidates for the state Legislature their stand on the right of gay people to marriage directly on their candidate questionnaires for the first time in 2006.

Duane plans another hearing on his marriage bill next year and will be inviting Bloomberg to follow through on his promise to testify for it. Bloomberg last week told Gay City News in an exclusive interview that he will call a meeting of LGBT groups and leaders in January to discuss issues including marriage. The Pride Agenda indicated it would participate but had yet to be invited.

“We’re in a very odd time in our history,” Duane said, mourning “the lack of militancy in the whole society. I’d like to see that pick up in the LGBT community.”

Dirk McCall, president of Stonewall Democrats, said he believes the Pride Agenda “is doing a really good job,” particularly in “beefing up their organizing department.” His club is asking every candidate who wants its endorsement to sign on to the equal marriage bill.

O’Donnell does not see the Assembly voting on a marriage bill this coming year.

“I believe it is already unconstitutional to deprive me of the right to have a license,” he said.

O’Donnell believes that educating the public about the fact that New York gay and lesbian couples legally married in other jurisdictions are having their rights recognized here could go a long way toward showing the public that “marriage isn’t harmed” as a result. He said that in the mean time, the Legislature needs to adopt a “consistent definition of domestic partners” in the incremental measures that it is passing, making sure that these partners always have the exact same rights as spouses.

The biggest change that will come to Albany this year is the election of a new governor. Van Capelle said that the election of Spitzer would send “shock waves” through Albany because he has vowed to sign a gay marriage bill even though, as attorney general, he is representing the state in several of the cases opposing equal rights. Glick is supporting Spitzer, though O’Donnell and Duane have yet to endorse. Nassau County Executive Thomas Suozzi, who supports civil unions but not marriage for gay couples, is mounting a challenge to Spitzer for the Democratic nomination.

Duane said he is “unhappy” with Spitzer’s vigorous defense of the exclusion of gay couples from marriage and is researching the role Attorney General Robert Abrams played when New York’s sodomy law was struck down in 1980. Abrams declined to defend the law, and the unsuccessful case for upholding the statute was left to a Buffalo prosecutor.

The gay and lesbian elected officials in Albany are strongly committed to securing a Democratic majority in the State Senate in November, a cause that the Pride Agenda, a non-partisan group, will not endorse. Van Capelle said the group will spend “upwards of $200,000 supporting people” based on their stands on LGBT issues, but noted that “the Democrats have problems in their own caucus,” including anti-gay crusaders such as State Senator Ruben Diaz.

All of these players also have passage of the Dignity for All Students Act and the Gender Nondiscrimination Act high on their agenda.

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