Spontaneous Procreation as Pretext

Spitzer argues unplanned straight conceptions require gay exclusion from marriage

The office of New York Attorney General Eliot Spitzer, who has said he will introduce legislation allowing same-sex couples to marry if elected governor, argued in court this week that the current statute limiting marriage to man-woman couples was rational because the state has an interest in channeling relationships that can produce “spontaneous procreation” into stable unions.

The argument was made in Brooklyn Heights on March 28 by Senior Counsel Peter Schiff before a panel of the Second Department of the Appellate Division, in the final of five such cases to be argued before mid-level courts. Four others have been rejected—three in Albany’s Third Department and one against New York City by Manhattan’s First Department. Those four cases will be heard by the Court of Appeals, the state’s highest, on May 31 in Albany.

Steven Hyman, a civil rights attorney in private practice, represented the plaintiffs, most of whom are from Rockland County.

“Same-sex couples have biological children and through surrogacy,” he told the court. “Those families should be recognized by the state of New York and have the permanency of marriage.”

Hyman also objected to Spitzer’s argument in briefs that another good reason for excluding gay couples from marrying is that most states and the federal government do not recognize such marriages. He argued that “it is the job of the court to determine the constitutionality of the statute,” and said, “There is no rational basis let alone compelling interest” for excluding gay couples from the protection of marriage.

Schiff told the judges, “This is an issue not for the court, but for the Legislature.”

The attorney general’s “rational basis” for keeping marriage straight was that “procreation occurs much more spontaneously” in heterosexual relationships, Schiff said, and therefore the state appropriately “channels heterosexual relationships into marriage in the hopes that there will be a stable relationship and family unit.”

Schiff, who will also be making Spitzer’s arguments before the Court of Appeals, said, “There is a substantial difference between same-sex couples and opposite-sex couples,” concluding, “It is not so clear that they [the state] have an interest in same-sex relationships.”

Two of the five-member panel assigned to the case recused themselves—without explanation—before it got started, leaving only four judges to hear it. If the panel splits evenly, another judge will be called in to catch up on the arguments and break the tie.

Few questions were asked by the judges, though one did query if marriage was “diminished” by allowing same-sex marriage. “No,” said Schiff, “but that doesn’t mean that they are the same.” He warned of the “problems” that will arise for gay and lesbian couples if they are allowed to marry and then move to a state where their relationship is not recognized.

It is unclear whether the Second Department will rule before the high court holds oral arguments, though Norman Siegel, another attorney for the plaintiffs, said that because of the “diversity” of this department—taking in Brooklyn, Queens, Long Island, and several counties north of the city—it “should weigh in.”

In an interview, Siegel decried “the hypocrisy” of Spitzer.

“In public forums he asks that we recognize same-sex marriages from other states,” Siegel said. “In court, his office argues that state DOMAs won’t recognize same-sex marriages.”

Mayor John Shields of Nyack, one of the plaintiffs and the only spectator—other than attorneys and this reporter—present in the ornate Monroe Street chamber for the arguments, said, “It’s hard living in a country where rights are limited to some people.”

Gay marriage advocates did not mobilize the LGBT community to attend the hearing.

“It was disappointing that the community was not there,” said Siegel, “and disappointing that this movement seems to be evaporating. Hopefully, the Court of Appeals will be filled with supporters. It is important for the judges to see the community caring about this issue.”

Susan Sommer of Lambda Legal, who won the historic decision from Manhattan Justice Doris Ling-Cohan in 2005 opening marriage to gay couples only to have it appealed by Mayor Michael Bloomberg and overturned by the First Department, said she was “disappointed” though “not surprised” by the arguments she heard from Spitzer’s office.

Sommer will be making the oral arguments before the Court of Appeals on May 31 in Albany.

“That court is known for its independence and leadership,” she said. “We’ll give it our best shot. The law and justice are on our side.”

Opposition to same-sex marriage is softening in the U.S., with the latest Pew Research Poll finding 51 percent opposed and 39 percent in support. In 2004, they found 63 percent in opposition and 30 percent in favor.

One of those who have come around is Steven Hyman himself, who argued this case for the plaintiffs.

“I have to admit that when I first thought about it as a straight man, I didn’t understand why civil unions were not enough,” he said, adding that it is clear how critical that gay couples be allowed to marry “once you read the law and realize what the underpinnings are.”

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