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.
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 case—namely, 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.
Research assistance: Jessica Bennett, K. Emily Bond, Ben James, Lee Norsworthy, Xana O’Neill, and Nicholas Powers