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Governor Eliot Spitzer’s Same-Sex Marriage Hoax

March 2008: Story about current situation is here: Governor Spitzer scandal

Governor Eliot Spitzer’s Same-Sex Marriage Hoax
by Kimberly Wilder & Ian Wilder

The whole drama about Governor Eliot Spitzer introducing same-sex marriage legislation, and the legislature failing to pass it, is a hoax.

Governor Eliot Spitzer doesn’t need the legislature to legalize same-sex marriage in NY. The NY constitution is gender neutral so there is no constitutional bar to same-sex marriage. There is no state law that currently bars same-sex marriage either. Let me repeat that, there [digg=http://digg.com/political_opinion/Governor_Eliot_Spitzer_s_Same_Sex_Marriage_Hoax] is no law on the books in NY state that prevents same-sex marriage.

Read the rest of the article.

7 Responses

  1. I didn’t read most of your post because in the first paragraph, you show your ignorance of the law.

    The Court of Appeals said that the New York State Constitution does not provide for same sex marriage. That decision is horribly wrong, but it’s the law now. The Governor cannot legalize marriage with an executive order. If he could, Alan (not Ian) Van Capelle and the Pride Agenda, Marriage Equality NY, GLAAD, Lambda Legal, and Sean Patrick Maloney, the Governor’s gay First Deputy would have already pushed that through. But none of them– lawyers all– have mentioned this executive order idea. Why? Because Spitzer cannot legalize gay marriage by executive order.

    You’re attacking the wrong guy. You’re complaining about a Governor who increased funding to LGBT organizations to record levels, changed the Civil Service Department’s policy to ensure full recognition by Executive Branch agencies of all valid gay marriages (from other jurisdictions), and introduced the first program bill for marriage in the country. His Administration has hired members of the gay community to high ranking posts in record numbers, and opened the doors of the Second Floor to the LGBT community more than any Governor in New York history. I’ve been lobbying for LGBT causes for years. We have never had a better friend in Albany than Eliot Spitzer.

    You have the law wrong, and you’re speaking out against our community’s most powerful political ally. Try getting Shelly Silver, Andrew Cuomo, and Tom DiNapoli to do something– anything– for marriage. They’ve been silent on the issue; not even offering a public position. Before tearing down the Governor who continues to work actively and publicly to help our community, take on those who work against us, or stand by in silence.

  2. Actually, I am aware of the law. I am also aware of how the checks and balances in our government works. Nothing in the law prohibits same sex marriage. The legislature, not the courts, write the law. The court has interpreted that law to prohibits same-sex marriage. The Governor heads a co-equal branch of government charged with enforcing the law, and chooses not to.

    I find it strange that you lambast the current Attorney General for a act of ommission, when Eliot Spitzer as Attorney General committed the larger act of commission. It was Attorney General Eliot Spitzer who wrote the memorandum of law that provided the basis for the criminal charges against New Paltz Mayor Jason West and for the later Court of Appeals decision on the law. Go read his memo. Spitzer had the opportunity to shape the debate before the Court of Appeals decision by saying the Department of Health regulation violated the New York State constitutuion. He refused.

    I am not surprised that all of the nonprofits you name are silent on the ability of the Governor to act by executive order. Like many nonprofits they are silent because they fear losing the ability to get what ever crumbs from the table or token measures they can get. They do not have the indepdence from the Democratic Party to act to give a critique.

    ~ Ian Wilder

  3. You’re wrong again. You make some reckless accusations too. The first is that virtually all LGBT advocacy groups in New York are not truly dedicated to legalizing gay marriage, but instead blindly loyal to the Democratic Party. I know countless people fighting hard every day for equal rights for the LGBT community, and such an accusation proves that you don’t know any of the LGBT activists who are truly experts on their own rights. Your second reckless accusation is that the nation’s most gay friendly Governor is, in actuality, anti-gay.

    Your argument is logically weak, and legally wrong.

    You don’t need to go much beyond 8th grade civics to understand the issue. The Court says what the law is (in this case, New York law, unless modified by the legislature, prohibits gay marraige). The Executive enforces that law, in accordance with the Court’s interpretation. The Governor neither makes nor interprets the law. You imply that he can do both, which is legally incorrect.

    The only way to validly win gay marrige in New York is through the legislature, because that is the opinion– however wrong– of the State’s highest court. Spitzer took a politically risky step as the first Governor in American history to introduce a gay marriage program bill, and you are wrongheaded to attack him for it.

    You didn’t answer my question as to why you chose to attack the guy who introduced a marriage bill and not those who oppose it??

    Instead, you suggest that Spitzer should do something he legally cannot, you levy reckless criticism of organizations fighting everday for equality, and you failed to provide any real defense of your agruments that I crushed with law and logic in my first post.

    To take on the points you made in your second post more specifically:

    1) You write “The legislature, not the courts, write the law.” And you’re wrong. The Court does, in fact, write the law. It does not write codes and statutes, but the decisions of the Court of Appeals are, in fact, law that is binding on every state court. Read up on the doctrine of stare decisis, or ask a lawyer about it. Check wikipedia. Your misunderstanding of the law is why your whole post is nonsensical.

    2) You write “The court has interpreted that law to prohibits same-sex marriage,” and you are correct. That decision is now the law, and the Governor must enforce the law, as interpreted by the courts.

    3) You write “The Governor heads a co-equal branch of government charged with enforcing the law, and chooses not to.” And you’re completely wrong. The Governor enforces the law as it stands, as he has a sworn constitutional obligation to do, and he is using the power of his office to change that law to make gay marriage legal. He’s doing everything he legally can.

    4) You criticize the Governor for doing his job at Attorney General. As Attorney General, he was charged with enforcing the law– again, not interpreting it. He was the state’s lawyer, and injecting his personal interpretation of the law (that gay people should be allowed to marry) would be improper and unethical. He did the job he was elected to do, and prosecuted those who violated New York law as it is, and not as he would like it to be. Now, he’s taking the lead trying to win equality for LGBT New Yorkers.

    5) Last, you write “I am not surprised that all of the nonprofits you name are silent on the ability of the Governor to act by executive order. Like many nonprofits they are silent because they fear losing the ability to get what ever crumbs from the table or token measures they can get. They do not have the indepdence from the Democratic Party to act to give a critique.” Then why did Alan Van Capelle lambast Senator Hillary Clinton for her silence on marriage? Why has the Pride Agenda criticized Howard Dean for his lack of leadership as head of the DNC? Why does Marriage Equality NY– which seeks no “crumbs from the table” other than gay marriage itself, have any reason whatsoever to be silent? Why have NO gay and lesbian Assemblymembers or Senators, NO independent lawyers, NO lefty activists, and NO ONE but you come forward with this Executive Order theory?

    I have an idea… because the “solution” you propose is not legally viable.

    Someone with more credibility than a married non-lawyer blogger would be out supporting this idea if there was even a remote possibility that it was viable. And you know what? My partner and I would be too.

  4. I understand from your screen name that you are very invested in this issue, both personally and as a member of the Governor’s party. I spent 10 years as an extremely active Democratic Committeeman, so I understand how hard this criticism is to hear.

    It might help to take the replace the issue at hand in order to look at the dynamics from a distance. For instance, if we replace the same-sex marriage issue with the more distant in time issue of prior rules forbidding marriage between what was defined as different races.

    Would it have been appropriate for AG Spitzer to issue an opinion that avoided the issue of whether such a regulation was constitutional when the NY Constitution and the NY law are neutral? Would it have been acceptable for Governor Spitzer to allow such a regulation stay on the books when he could change it instantly with an executive order in concert with the NY constitution and the current law?

    Before you answer, remember that the AG and Governor are sworn to uphold the NY constitution. If Spitzer struck down a regulation he believed to be unconstitutional, the worst thing that would happen to him is he would be sued. He has the whole state to defend him.

    The game of putting up legislation that you know won’t pass is an old one. It is constantly played out in politicians mailings where they list all the bill they introduced to make it look like they are serving a constituency, while they know full well the bill won’t pass.

    As to Courts writing laws, rather than interpreting them, I would like you to show me that in the 8th grade civics book you refer to? The three branches are co-equal with separate functions.

    As to the nonprofits that you refer to, they reinforce the idea that you are stuck with Democrats by merely criticizing them rather than their endorsement/fundraising for candidates who actually support same sex marriage, e.g. Green Party candidate.

    Ian Wilder
    GWU Law ’93

  5. Ian –

    To tone this back a little from my previous post, I agree with you that LGBT people deserve equal rights, and I apprecaite that you and your wife agree. You’re a Green Party leader, so chances are good that I agree with you more than I do with most elected Democrats, including Governor Spitzer.

    However, the simple fact is that the Court of Appeals said the legislature must change the law for gay marriage to be legal. The Governor cannot legalize marriage with an Executive Order. If he could, he would. This isn’t blind loyalty to my party, it’s my well-founded belief that Governor Spitzer is genuinely supportive of gay rights. I know several high-ranking openly gay people in his administration, and they laud his dedication to LGBT issues. They wouldn’t bullshit me about that.

    Back to the 8th grade civics book, you wrote “As to Courts writing laws, rather than interpreting them, I would like you to show me that in the 8th grade civics book you refer to?”

    You misread my previous post. I never said the Courts do not interpret the law. To the contrary, I noted the Court of Appeals’ binding interpretation three times in my earlier post. I mentioned that in the context of the Governor’s constitutional obligation to enforce the law, as interpreted by the courts.

    Also, you misquote me to say that the courts write the law. Since you graduated from GW Law, you surely realize that the decisions of the courts make a body of case law. While it’s confusing to say the courts “write the law,” the charge of the legislature, judge-made case law appears much more often in the gay marriage debate than statutes do.

    More to come on this…

  6. I think we do agree on much.

    Where we disagree is where you say if Spitzer “could, he would” I still don’t understand why you disagree with the idea of his issuing an executive order to remove the Department of Health regulation that requires couples be of different genders? Changing the regulation is entirely within his purview as Governor. Even given your argument that removing the regulation would not change NY law, why not do it?


  7. Ian, As you present it, there is no reason not to change this regulation. Can you point me to it?
    Once I do my homework, if it’s a DOH regulation, I’ll be happy to call my friends in the Administration and point it out to them. Spitzer’s #2 health chief is openly gay.

    Spitzer already ordered the Civil Service Department to change its regulations to honor same-sex marriages from other jurisdictions. That means same sex spouses who are State employees will receive equal benefits as other State workers’ spouses. He knows how to change those regulations under his purview, and has shown a willingness to do so. See: http://www.gay.com/news/election/article.html?2007/05/08/3

    Your post mentions this DOH regulation, but I’m unsure to which regulation you refer. Point me to it, and if it’s something I can push to change, I’ll write a memo and sent it to every homo politico on my list.

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