Same-Sex Nups Squeeze Mayor Again

Bi-positional Bloomberg and the gay-marriage ruling

Editor's note:

Yesterday, a New York appeals court ruled that gay couples have no right to marry under the state's constitution, saying the right of society to favor heterosexual relationships outweighs the right of individuals to choose whom they will marry.

The 4-1 decision in Hernandez v. Robles was a crushing blow for same-sex couples, who'd seen their right to marry stated so clearly in a Manhattan court in February. Blocking gay couples from marrying �expresses an important, long-recognized public policy supporting, among other things, procreation, child welfare and social stability--all legitimate state interests,� reads the majority opinion. New York's freshly re-elected mayor, Michael Bloomberg, found himself again in the middle. He professes to support the right of gay couples to marry, yet chose to appeal the original Hernandez v. Robles verdict. Had he let the verdict stand, same-sex couples would have been marrying for several months in New York City already. On Thursday, he issued the following statement, quoted here from Gotham Gazette:

"As I have said, this issue should be decided by the state's highest court, and I assume today's decision will be appealed. If today's decision is affirmed by the Court of Appeals, I will urge the Legislature to change the State's Domestic Relations Law to permit gay marriage."
But this is Bloomberg's mess in the first place. As Wayne Barrett reported in the weeks before the city elections, Bloomberg not only appealed the breakthrough verdict, he took it on with a zeal that belies his other, more gay-friendly remarks.

Mike's Mixed Message
Bi-positional Bloomberg assails gay marriage in court
by Wayne Barrett
October 4th, 2005 11:14 AM

The "sleeper issue" that has quietly haunted Mike Bloomberg since February, when he simultaneously announced his support for gay marriage and his decision to try to block it in the courts, may soon be back on the front burner.

The arguments Bloomberg's lawyers are making in an attempt to overturn the decision of a Manhattan judge recognizing same-sex marriage fly in the face of the mayor's public statements and could doom any chance of legalization, a Voice review of the case reveals. Faced with challenges on this issue from his right by Conservative Party nominee Tom Ognibene and his left by Democrat Fernando Ferrer, who denounced the decision to appeal the Hernandez v. Robles ruling, Bloomberg has so far succeeded in keeping the case below the radar in the mayoral campaign. Should his hybrid position become a major issue, it could simultaneously deflate the turnout for him of outer borough moderates and conservatives while cutting into his support among liberal Democrats.

As far back as June 2001, when Bloomberg was running the first time, he refused to say if he supported gay marriage but added: "I don't think that the government has any business telling me who I should be able to marry." When he finally endorsed gay marriage at a Chinatown press conference in February while announcing the appeal in Hernandez v. Robles, he said: "I think anybody should be allowed to marry anybody." He went further that night when he appeared before a gay group, the Human Rights Campaign, and raised marriage to the level of a right, saying "I think people have the right to love, to live with, and to marry whoever they want, regardless of their sexual orientation."

Yet Bloomberg's two appeals briefs, argued before a five-member Appellate Division panel in September, state flatly that the decision of Manhattan Supreme Court judge Doris Ling-Cohan "erroneously defined the fundamental right at issue as being 'the right to choose whom one marries.' No such right exists in New York." The briefs accused Ling-Cohan of "fundamentally and improperly" altering "the definition of civil marriage," citing "this country's history and tradition" to validate the rejection of gay families. While almost parenthetically noting that "the mayor supports legislation that would authorize same-sex marriage," Bloomberg's lawyers nonetheless concluded that there was "a rational basis for the present statutory scheme's limitation of marriage to one male and one female."

When Bloomberg appealed, he did it because he thought "people that want to marry people of the same sex deserve the right to have the courts issue a definitive final ruling one way or another," promising to "expedite the appeal directly to the highest court as quickly as possible." The city did go through the motions of trying to "fast-track" the case directly to the Court of Appeals but that's only happened five times in 15 years and was a sham offer from the beginning, guaranteeing that the issue would vanish until long after the mayor's re-election.

Also abandoned in the appeal was Bloomberg's claim that "we will seek" a ruling from the appeals courts "that will embrace the goals" of Ling-Cohan's decision, which is what he promised HRC to much applause in February. Instead, not only do Bloomberg's briefs castigate Ling-Cohan's reasoning, they contend that "it is for the people of New York, acting through their elected representatives, rather than for the courts, to decide whether same-sex relationships should be accorded legal recognition." Bloomberg's lawyers argued that if the appeals courts find the current statute unconstitutional, they should "suspend the effect" of their decision and "permit the Legislature" to devise its own remedy, suggesting that civil unions would avoid "the complexities" that come with marriage.

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