Making Arguments They Don’t Like

Spitzer, Bloomberg distance themselves from marriage court briefs they filed for May 31

While saying they support gay marriage, Eliot Spitzer, the state attorney general, and Mayor Michael R. Bloomberg are characterizing the anti-gay marriage briefs they filed with the state’s highest court as a requirement of their jobs or a task required of the government agencies that wrote the briefs.

“There is a distinction between what I believe and what I will do as governor and the positions that I must take on behalf of the state where I have a client, the governor, who in litigation tells us the position that he wants us to articulate,” Spitzer said at a joint April 26 endorsement meeting of the Lambda Independent Democrats, a Brooklyn gay political club, and the citywide Out People of Color Political Action Club, in Park Slope.

Spitzer’s office and the city’s Law Department have filed lengthy briefs that are concerned with the legal theories and prior cases the Court of Appeals should consider in deciding the four gay marriage cases it will hear on May 31.

Both briefs argue that it is the job of the state Legislature, not the courts, to enact same-sex marriage. The city asserted that if the court should decide that the state’s marriage law is unconstitutional because it excludes same-sex couples then the court should suspend its decision and allow the Legislature to take up the issue.

The briefs argue that same-sex marriage is not a fundamental right and that the exclusion of same sex couples from the state’s marriage law is not discriminatory.

Both the city and state argue that the court should decide the case using the so-called rational basis test, a legal analysis that requires that the government merely show that the challenged law uses a reasonable means to achieve a legitimate government goal—creating stable families in which straight couples raise children, according to both briefs. A rational basis test is the lowest burden for the government to meet when justifying the constitutionality of a statute.

Both briefs reject the argument that the court should apply tougher legal tests, such as heightened or strict scrutiny. Heightened scrutiny is used when courts consider laws that involve gender. Strict scrutiny is used in cases where a fundamental right, such as voting, or a particular class, such as one based on race or national origin, is implicated.

Spitzer, a Democrat who is running for governor, has said he supports same-sex marriage. If his office wins before the Court of Appeals and denies plaintiffs in the May 31 cases the right to marry, Spitzer has promised to put a bill before the state Legislature that will legalize same-sex marriages, should he be elected governor in November.

“There is a difference between the positions one takes as a lawyer on behalf of a client and the positions that I would take or could take in different positions,” he said. “In the executive, I would be in a position to be the client and articulate what I want to do both legislatively and administratively.”

Spitzer would run his gubernatorial administration “in a way that reflects a very different conception of civil rights than might be understood by the incumbent governor,” Republican George Pataki.

Responding to a question at a May 8 press conference concerning the conflict between his views on gay marriage and the content of the city’s brief, Bloomberg said, “I haven’t seen the content.”

Referring to the city Law Department, Bloomberg said, “Their job is to win a case. My views on gay marriage have been consistent all my life. I don’t think it’s the government’s business who you marry.”

In February of 2005, Bloomberg backed gay marriage, after refusing to take a position for four years, while announcing that the city would challenge a decision in a state court in Manhattan that allowed same sex marriages. Bloomberg told Gay City News in December last year that he hopes he loses the court case.

On March 24, the mayor convened a meeting at Gracie Mansion of queer leaders to set strategies for advancing gay marriage in New York State. The Empire State Pride Agenda (ESPA), the statewide gay lobbying group, was excluded from that meeting.

Susan Sommer, senior counsel at Lambda Legal, a gay public-interest law firm, and the lead attorney on one of the four cases, said she agreed with Spitzer and Bloomberg that “New York should allow its gay and lesbian citizens to get married,” but she parted company with them on the briefs.

“The briefs filed by the city and the state resort to making narrow, technical, legalistic arguments because they simply cannot win when the real constitutional principles and families that are at stake are considered,” she said.

James D. Esseks, litigation director at the Gay and Lesbian Rights Project of the American Civil Liberties Union (ACLU), said Bloomberg’s view was “an astounding abdication of his responsibilities as mayor of the city to take control over what positions the city takes.”

Esseks said of Spitzer that “He’s got a client, he’s got a job to do,” but he also said that the attorney general’s obligation was not simply to fight.

“I would submit that the attorney general also has an obligation to make a judgment about what the state Constitution means, about what degree of protection it provides,” he said. “He’s more than just any lawyer with just any client. He also is someone who has an obligation to take constitutional values into account.”

The ACLU will argue one of the four cases before the Court of Appeals on May 31. Esseks said the city and state are fighting hard.

“Both the city and the state have taken very strong positions that excluding same sex couples from marriage offends no constitutional values,” he said.

ESPA, widely expected to endorse Spitzer in the governor’s race, declined to comment on the Bloomberg and Spitzer briefs nor would the group comment on the public statements made by the two, which were sent to ESPA by e-mail.

During a May 8 lobbying day in Albany, which focused in large part of the push for marriage equality, Alan Van Capelle, ESPA’s executive director, said he had not read the briefs. When the arguments were explained to him, Van Capelle said, “We disagree with that interpretation of the Constitution. There’s no argument you can make [against same sex marriage] that we would agree with.”

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