Sommer says that this "optional argument completely ignores the needs of lesbian and gay people who have children," which the 2000 census says totaled at least 46,490 New York households. She contended in her brief that the state "must have a legitimate reason to deny marriage to same-sex couples" whose children need its protections "every bit as much as heterosexual couples do," not just a purpose in supporting marriage "for different-sex couples." Indeed Sommer cited case law that concluded that "the task of child rearing for same-sex couples is made infinitely harder by their status as outliers to the marriage laws," turning the procreation argument into a reason for legalization, rather than Bloomberg's rationale for the status quo.
It's certainly Sommer's belief that the city could've "made far fewer of the arguments that I believe are without merit," including the contention that gays don't qualify as a discriminated group requiring equal protection scrutiny because "all branches of government in New York have been addressing the difficulties gay people face." But once Bloomberg started down this dual track, a train wreck of public pronouncement and legal positioning was inevitable. The only question is whether a compromised media, and a strangely silent gay leadership, will let him get away with it.