NYCivic

Gay Marriage Redux:
Spitzer Will Enforce
A Law He Dislikes

Henry J. Stern
March 3, 2004
9:25 pm

After we sent out "Politics in the Bedroom" earlier this afternoon, we received word that New York State Attorney General (and putative gubernatorial candidate) Eliot Spitzer has made a decision on the issue of whether New York law permits same-sex marriage. Governor Pataki requested the attorney general on February 27 to take legal action to stop New Paltz Mayor Jason West from marrying same-sex couples. Mr. Spitzer refused to do that, explaining that "we wouldn't have won." The impasse continued for five days until today, Wednesday, March 3.

This morning, two editorials appeared in local tabloids. The New York Post editorial was headlined "Williams for Attorney General" and argued that Ulster County District Attorney Donald Williams, who has charged Mayor West with 19 counts of solemnizing a marriage without a license, has done more to enforce state law than the state's chief legal officer, Attorney General Spitzer. The Daily News editorial, headlined "Do you, Eliot, take this law..." declared that "Spitzer has chosen not to enforce a law that conflicts with his personal views." The editorial goes on to criticize Speaker Gifford Miller, whom they say "would go even further than [Mayor] West." The News says that "[H]e should remember that public officials don't get to pick which laws they will respect or enforce."

This afternoon, a one-page press release arrived from the attorney general's office on the subject entitled, somewhat unspecifically, "Attorney General Issues Opinion on Same Sex Marriage." It was accompanied by a quite specific 28-page opinion letter to the corporation counsel of Cohoes and the town attorney of Olive. The Spitzer press release says that "under state court precedent, same sex marriages and civil unions lawfully entered in other jurisdictions outside the state should be recognized." Under a decision of its Supreme Judicial Court, Massachusetts will begin to conduct gay marriages on May 17, which means that New Yorkers will be able to cross the state line, marry, and return to New York State, where the attorney general will defend their right to be considered legally married.

In 1996, Congress passed and President Clinton signed the Defense of Marriage Act, which provided that same-sex marriages were not required to be recognized by other states under the "Full Faith and Credit" Clause of the Constitution. Presumably, individual states could decide for themselves whether or not to recognize out-of-state same-sex marriages. It is unclear who will make the decision as to whether, and to what degree, New York State should grant recognition of these marriages. It could be the attorney general, the state legislature, or the Court of Appeals, which is the ultimate decision maker in New York State, unless an appeal to the Supreme Court of the United States should prove successful.

Three wise readers called to my attention an error in the article sent out earlier today. As we all ought to know, the right to "the pursuit of happiness" appears in the Declaration of Independence, not the Constitution. The relevant sentences of the Declaration are: "We hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty and the Pursuit of Happiness. That to secure these rights, Governments are instituted among men, deriving their just powers from the consent of the governed." The Declaration was adopted unanimously in Philadelphia on July 4, 1776, but you knew that.

The Constitution of the United States was adopted by a convention in Philadelphia on September 17, 1787 and sent to the thirteen states for ratification. The ninth state, New Hampshire, provided the necessary two-thirds vote on June 21, 1788. New York, the 11th state to ratify, acted on July 26, 1788. Delaware was the first state to act, and Rhode Island the 13th, on May 29, 1790, after demanding the adoption of the Bill of Rights (the first ten amendments to the Constitution), which occurred on December 15, 1791.

I am sorry to have had to write and to send two e-mails in a single day, but we wanted to keep you up to date about the attorney general's decision and legal opinion. Part of Mr. Spitzer's pain was caused by the fact that he took considerable political flak for defending the state against the lawsuit over school funding by the Campaign for Fiscal Equity. He tried to avoid being placed in the same uncomfortable position again, but then other forces applied pressure. Of course, the decision was made on the basis of the law; it is just that the timing was unfortunately inopportune.

The last word on this matter should be Rule 28-B, in which Hyman Roth, played by Lee Strasberg and depicting Meyer Lansky, reflects on a difficult situation by saying, "This is the business we have chosen." (If anyone does not know the source of this quotation, just press the Reply button to e-mail me, and I will send the answer to you at once, and in confidence.)

Good night.