By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
By Raillan Brooks
This bottom-line position belies the mayor's insistence that he was only trying to get the courts to clear up a legal muddle, with four similar cases weaving their way through upstate courts. It also provoked an angry response from Lambda Legal Defense, which is representing the gay plaintiffs. "Making some vague claims of 'complexities' that will result if the Court orders the only remedy that could correct the wrong," Susan Sommer argued in her brief, the city suggests that "the courts should leave the matter in the hands of the legislature, with leeway to fashion some lesser, second-class status for same-sex couples. Where state law violates bedrock rights of liberty and equal protection, it is the courts' obligation to enforce the rights guaranteed to every person by the Constitution."
Bloomberg's February position was that gay advocates should go to the legislature "if the court rules that gay marriages are illegal," but now he is arguing that gays should be forced to go to the legislature even if they win in court. Yet Manhattan assemblyman Dick Gottfried, the sponsor of the gay marriage bill in the assembly, says it's a dead letter with Democrats, who are led by an Orthodox Jewish speaker, and Senate majority leader Joe Bruno has dismissed any chance of passage.
Sommer told the Voice that Bloomberg's lawyers chose to make another "offensive argument" in their briefs, one that New Jersey attorney general Peter Harvey explicitly refused to make in an April letter to a three-judge panel hearing a similar caseï¿½namely, the procreation argument. Though the city contended that it was "not required" to establish "the rationality" of the legislature's marriage restrictions to meet its burden of proof, it made the point anyway that these limitations are "reasonably related to the state's long standing legitimate interest" in ensuring that children of opposite-sex unions "are raised by both their parents." Acknowledging that "the marriage of gay couples would benefit their children" as well, Bloomberg's lawyers nonetheless argued that it's OK if a law "furthers one legitimate interest" but not "other legitimate interests," a virtually explicit "who cares?" position on equitable benefits for the children of gay families.
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.