Should Anatomy Govern Marriage?
Not a Question for Gamesmanship.

March 3, 2004
Henry J. Stern

The volume has been pumped up on the question of gay marriage, with public officials from the president on down seeking political advantage in an emotionally charged situation. For me, the issue goes back to 1974, when, in one of my first acts as a city councilmember-at-large from Manhattan, I co-sponsored a gay rights bill. The City Council took twelve years to consider the bill; it was tabled on a number of occasions. The legislation was finally adopted by the council and signed by Mayor Koch in 1986. It prohibited discrimination on the basis of sexual orientation in housing, employment and public accommodations in New York City.

Its opponents argued that passage of this bill would lead to gay marriage, while we assured them it would do nothing of the sort, but simply protect people in their homes, jobs and travels. On that issue only, the bill's opponents were correct. Thirty years later, the issue of gay marriage is before us, precipitated by a decision of the Supreme Judicial Court of Massachusetts that gay marriage is a constitutional right that the state must implement. This has led to pressure for an amendment to the U.S. Constitution defining marriage as a contract between a man and a woman. Although the amendment has little chance of passage (it must be approved by 2/3 of each house of Congress and then ratified by 38 state legislatures), it does bring a hot-button issue to the fore. (The Equal Rights Amendment, adopted by Congress, failed in the 1970's because it was only ratified by 35 states.)

On February 24, President Bush endorsed a constitutional amendment to prohibit gay marriage about which he had previously been ambivalent, perhaps because he felt that the Constitution should not be cluttered with this sort of behavioral proscription (or prescription). His decision helped him with his conservative core voters, and the people most upset by it are likely to be Democrats who are against him anyway. This is called a wedge issue—one that is expected to divide Democrats more than it does Republicans. Look for the extension of the Patriot Act, which will come up in Congress this year, to create a similar wedge situation. Some will call this politics; others will say it is accountability to the public.

There is an equitable case for gay marriage, under the pursuit of happiness clause. But what precisely to do about it is not an easy issue to resolve—what about adultery, alimony, responsibility for each other's debts and health care, child custody, inheritance rights of relatives and other questions that arise when a marriage crumbles? The fifty states have different laws dealing with heterosexual marriage and its dissolution. Some jurisdictions provide alternate arrangements for civil unions, like Vermont. New York City's domestic partnership law provides that a partnership, which can be between any two adults, gay or straight, confers legal benefits and immunities on each partner, but can be ended by either party on three months' written notice. Would we want that to be the standard for the dissolution of gay marriages?
 
Currently Germany, Belgium, and Holland permit same-sex marriage, as well as the Canadian provinces of Ontario and British Columbia. Gay New Yorkers can and do go to Canada to marry. Other young men crossed the border in the 1960's to avoid the draft, and fugitive slaves fled across Lake Erie in the 1850's to escape recapture and return to their former owners. It has been helpful to the people of the United States to have a country like Canada nearby.
 
On the local level, Council Speaker Gifford Miller jumped into the controversy by demanding at a rally on the steps of City Hall that Mayor Bloomberg "instruct the city clerk to begin issuing marriage licenses to same-sex couples." There are a number of practical problems with this demand. First, the city clerk, who also has the title of clerk of the council, is an appointee of the City Council, not the mayor. Victor L. Robles, who had been majority whip of the council, was chosen by the council on October 12, 2001 for a term expiring May 12, 2006. At that time, Mr. Miller was a councilmember and joined in the vote for his colleague.

Mayor Bloomberg did not appoint Robles, and he cannot dismiss him. Commissioners serve at the pleasure of the mayor, and can be removed at will, for any or no reason. Appointees with fixed terms provided in the City Charter cannot be removed arbitrarily. The council might be able to remove him for just cause (like bribery or embezzlement), and if he were convicted of a felony he would automatically lose his job. However, Mr. Robles' decision not to violate what he believes to be the laws of New York State is highly unlikely to be considered by any court as just cause for him to be removed in the midst of a fixed term of office.
 
Mr. Miller's desire to instruct the city clerk could be expressed with greater relevance if he submitted a resolution to the City Council resolution asking Mr. Robles to issue the licenses, expressing the council's displeasure if he fails to do so, and possibly indicating the unlikelihood of his reappointment. But Mr. Miller has not done that at all. Instead, he has asked the council to pass a resolution opposing the proposal to amend the U.S. Constitution to prohibit gay marriage. That position is agreeable to most New Yorkers, and is the view of Governor Pataki and Mayor Bloomberg. Such a resolution would, of course, have no effect, other than enabling its supporters to cast a pro-gay vote on an issue over which there is much less controversy in New York City.

Many, possibly most, but certainly not all New Yorkers believe that gays should have the right to enter into personal relationships with some kind of official sanction and with legal consequences if they desire to bind themselves. That would be the culmination of an effort that may have begun at Stonewall in 1969, and was first expressed legislatively in the council in the early 1970's.

Gay marriage will not change the world any more than interracial marriage, once forbidden and now taken for granted. But the change should come through the legal process, just as the New York State Court of Appeals in 1980, in People v. Onofre, declared anti-sodomy laws unconstitutional, followed in 2003, in Lawrence v. Texas, by the Supreme Court of the United States, in an opinion written by Justice Anthony Kennedy, an appointee of Ronald Reagan.

The cause of gay rights has advanced for a generation, and is closer now to fulfillment than ever before. It will be unfortunate if people use this movement for their own political advantage by creating fictitious differences with their political targets. There are deep feelings on each side here, and the cause will not be advanced by exploitation of the anger of either side.

We have waited since Monday for Attorney General Eliot Spitzer's decision on the issue of whether, under existing law, people of the same gender may marry in New York State. Whatever the statute says, or does not say, on the subject should be considered. But legislative intent is also a factor. If specific gender-based language were omitted from the statute because the legislature at that time believed it would be a superfluous restatement of natural law, that, too, should be a factor in his decision.

Clearly, the issue is emotionally charged and could have a bearing on the attorney general's campaign for governor in 2006. Ultimately, the matter will be decided by the Court of Appeals, which determines what is the law in New York State. Mr. Spitzer, who is very able, graduated cum laude from Harvard Law School in 1984. Perhaps he should consult with another gifted alumnus of the law school, Charles E. Schumer, class of 1974, also cum laude. The two elected officials might have a similar perspective on this difficult question.