For the third time since March, the office of New York State Attorney Gen. Eliot Spitzer has entered the growing debate about same-sex marriage rights, this time with a firm rebuttal to claims by ten same-sex plaintiff couples from upstate Nyack that they have the right, under both existing law and the state constitution, to marry.
Spitzer’s office, in a brief signed by Assistant Attorney Gen. James B. McGowan and Assistant Solicitor Gen. Julie Sheridan, argued that the New York Domestic Relations Law (DRL), though it uses gender-neutral language, was not intended to extend marriage rights to gay and lesbian couples. Of perhaps greater significance, the brief dismissed the plaintiffs’ argument that denying them the right to marry was a violation of their rights to due process and equal protection under the New York Constitution.
“In defining marriage in New York State solely as a legal relationship between one man and one woman, the DRL fully comports with the State Constitution’s equal protection and due process clauses,” Spitzer’s office argued. “[It] satisfies the Constitution in all respects.”
Attorneys representing plaintiffs in the three lawsuits seeking same-sex marriage rights currently underway in New York disputed the attorney general’s conclusions and expressed confidence that they could surmount his arguments but were otherwise tempered in their responses.
“I thought it was a fine piece of work,” said Matt Coles, who heads up the Lesbian and Gay Rights Project at the American Civil Liberties Union, which has filed a separate lawsuit on behalf of a dozen plaintiff couples. “Spitzer managed to, I think, do one of the more responsible jobs I’ve seen someone do in this kind of situation. Lawyers often feel the need to raise every possible argument in such a brief, even if they do not believe them. He did not, for example, try to argue that there has been no history of discrimination against the gay and lesbian community It was a respectable and serious response—just about what you would hope for from a good elected official.”
Coles hastened to add that the rationale the attorney general’s office laid out will not be sufficient to overcome the several constitutional challenges underway in the courts.
Susan Sommer is a supervising attorney at Lambda Legal who is the lead on that group’s legal challenge, Hernandez v. Robles, which argues that the city clerk here in New York, Victor Robles, should have issued marriage licenses earlier this year to the plaintiff couples in that case. Noting that the arguments put forward by Spitzer were similar to those made by the attorney general of New Jersey in answer to Lambda’s suit there, and were therefore “not surprising,” Sommer said. “The attorney general’s office is definitely stepping up and defending the discriminatory marriage law on behalf of the state, the defendant in that case.”
Although Sommer is taking on the city and not the state, she will need to respond to Spitzer’s arguments since the city, in its June 1 response to the Lambda suit, decided to simply deny each of the claims asserted by the plaintiffs and append the attorney general’s brief.
“[The attorney general’s office] mounted a vigorous defense against which I think we can prevail,” she said.
The most spirited response to Spitzer’s opinion came from Norman Siegel, the former head of the New York Civil Liberties Union now in private practice in Manhattan, who is one of the lead attorneys in the Nyack case. While “respectfully disagreeing” with the attorney general’s position,” Siegel said that Spitzer was “trying to maintain the status quo,” and argued there was a glaring inconsistency between the brief’s reliance on “tradition” as a defense for excluding same-sex couples from marriage and Spitzer’s statement in early March that New York State would recognizes gay and lesbian marriages sanctioned in Massachusetts.
Siegel was the only attorney of the three commenting for this story who touched on the political ramifications of Spitzer’s brief. A long-time supporter of same-sex marriage rights, the attorney general, a Democrat, is widely expected to run for governor in 2006, and its unclear how that possibility may have factored into his thinking. Any calculation along those lines would surely be complicated by the fact that Spitzer’s client in the Nyack case ultimately is the current governor, Republican George Pataki, who is not a supporter of same-sex marriage.
The brief that Spitzer’s office filed on May 24 caps a series of statements the attorney general has made on same-sex marriage since early March, and Siegel took note of the contradictions among those pronouncements.
On March 3, in response to the decision the prior week by New Paltz Mayor Jason West to begin solemnizing gay and lesbian marriages in that Ulster County community, the attorney general issued a three-part opinion, which he said was thoroughly researched by his staff. First, Spitzer argued, as he did again in response to the Nyack lawsuit, that same-sex marriage is not currently legal in New York. He did not find the gender-neutral language of the DRL compelling, since in a wide variety of other state law references and in any reasonable reading of the original legislative intent when the measure was passed in 1907, it was clear that only opposite-sex marriage was contemplated.
Spitzer, however, threw two important bones to same-sex marriage advocates. First, he said that all of the precedents related to New York recognition of marriages sanctioned elsewhere would require that same-sex marriages from jurisdictions such as Massachusetts also be recognized. He also said his office’s analysis uncovered “important constitutional questions involving the equal protection of the laws,” even though he added that his office “cannot and will not” resolve such questions.
“Spitzer got applause for that opinion from many in the progressive community and in the gay and lesbian community,” Siegel noted. “Now he goes the other way in a much less publicized brief. A little while ago he wasn’t singing that tune.”
In fact, Spitzer’s Nyack brief appeared just days after he stepped up for same-sex marriage advocates in response to Massachusetts Gov. Mitt Romney’s efforts to prevent out-of-state gay and lesbian couples from marrying in his state. Using a 1913 miscegenation law that banned marriages by out-of-state couples that would be “void” in their home state, Romney concluded that a Massachusetts same-sex marriage would be void in every one of the other 49 states. When he sent each of the governors and attorneys general in the other states a questionnaire as to whether same-sex marriage was allowed in their jurisdictions, Spitzer, under pressure from gay activists, forwarded his March opinion and underscored that a gay couple’s Massachusetts marriage would be honored in New York.
Having argued in March that state law raises “important constitutional questions involving the equal protection of the laws,” Spitzer now finds himself in the uncomfortable position of asserting that the Nyack plaintiffs’ equal protection claims are not valid “beyond a reasonable doubt.”
A key component of the attorney general’s brief relies on the conclusion that alleged discrimination against gays and lesbians does not merit the “strict” or “heightened” scrutiny applied in cases of racial discrimination, for example. “Homosexuals as a class cannot be viewed as politically powerless in New York,” according to the brief, which noted the legislative advances made at the state and local level and even the fact that one of the plaintiffs, John Shields, is the mayor of Nyack.
Siegel dismissed this argument as “stereotyping” that overlooks the everyday homophobia gay and lesbian people encounter and “the ongoing need to make equality a reality.”
Having dismissed the need for alleged discrimination to be examined with a heightened level of scrutiny, Spitzer’s brief argued that the state must only show that “there is a reasonably conceivable state of facts that could provide a rational basis” for denying marriage rights to gay and lesbian couples. The attorney general points to two basic lines of argument. First, of the 50 states, only one allows same-sex marriage and the Defense of Marriage Act specifically provides that other states need not accept a same-sex marriage license granted elsewhere.
“As I read it, this is the notion that because the federal government and other states have discriminatory rules and policies, New York should stick with the pack,” Sommer said dismissively.
The other rational ground Spitzer cited was tradition, by which marriage, as an institution of “social continuity and economic equity,” the state has an interest in preserving. Within this argument, Spitzer noted that procreation was one of the more important functions of marriage and asserted that the fact that some heterosexual couples don’t or can’t have children, and that some gay and lesbian couples do, should not obscure the general principle. In perhaps the brief’s most chilling passage, the attorney general dismissed the concern that children of gay and lesbian parents are denied important benefits because their parents cannot marry by noting that a policy “does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’”
Coles, Sommer, and Siegel uniformly rejected both of Spitzer’s arguments as providing a rational basis for denying gay and lesbian couples from marrying, even if the court were to accept that the state need only meet this lowest hurdle for defending its policy.
Spitzer’s solution to the issues raised by legal disagreement, which he took pains to emphasize were “not about the value of same-sex relationships,” was not surprising for either the state’s top lawyer or for a politician. “The question of same-sex marriage should be left in the political arena, where all interested parties can have a full and fair opportunity to argue their respective positions,” the brief concluded.
Coles, Sommer, and Siegel are betting that Spitzer is wrong, and that their efforts will bear fruit in the New York courts. But, even if Spitzer is right, he must surely be aware that should be seek the governorship in 2006, this weighty issue will dog him yet again.