Blomberg's Appeal of the NY Gay Marriage Case

Mayor Bloomberg is taking considerable heat for his decision to appeal Judge Doris Ling-Cohan's recent decision holding that a ban on same-sex marriage is unconstitutional. In one sense, I think this criticism is simply unfair. As a chief executive sworn to see that the State's laws are faithfully executed, it seems like he is duty bound to get a definitive ruling on what the law actually is, especially involving issues as controversial and far-reaching as this one does. And, in a case like this, such a ruling can only come from the State's highest court.

However, even in terms of advancing the cause of gay marriage, it is far from clear to me that the decision to appeal was a bad one.

The only people criticizing the decision to appeal, of course, are those who like the outcome of the case. If Mayor Bloomberg really does support gay marriage, as he claims, why would he seek to have the decision overturned? After all, as Alan Van Capelle reportedly observed: "The only thing stopping same sex couples from getting married legally [is] Mayor Michael Bloomberg."

It is possible, of course, that Bloomberg is simply a hypocrite as Joyce Purnick seemed to imply in Monday's NYT, or that, while personally in favor of gay marriage, he is bowing to political expediency, as Jim Rutenberger suggested in the same issue. But it is also possible that Bloomberg is sincere in his support of gay marriage and has concluded that an immediate, expedited appeal directly to New York's highest court is the best strategy for securing that right and perhaps even for advancing the cause of gay marriage nationally.

Sooner or later, the gay marriage issue going to come before the NY Court of Appeals (the state's highest court), and until it does the right to get a marriage license is more symbolic than real. Given that, it would seem that there is no real downside either for same-sex couples or for the cause of gay marriage generally in appealing now.

On the other hand, there are some very substantial upsides. By far the most important of these is that this case is probably as well positioned as any case could be if what you want is a ruling in favor of gay marriage. First, and most obviously, the lower court decision is very well written, researched and written. A good lower court decision is always the best "brief" to be filed in any appellate court.

Second, the appellant -- the City of New York -- has already expressed its support for the outcome and has made clear that it's arguments are being advanced more out of a sense of duty than a sense of conviction.

Third, perhaps as a reflection of this ambivalence, all of the important facts in the case have been stipulated. As reported in Gay City News:

The case was simplified somewhat by the city's agreement with the factual contentions that Lambda advanced in support of the plaintiffs' claims. There was no dispute that same-sex couples form families, that many of those families involve raising children and that exclusion from marriage imposes significant disadvantages on the couples and their children, because of the many rights and responsibilities associated with marriage that cannot be completely simulated through private contracting. The court devoted a section of its opinion to recounting in detail these uncontested facts.

In addition, it does not appear that the State argued that it was harmful to children to be raised by same-sex couples.

As any appellate lawyer will tell you, the state of the factual record in a case is at least as important as the legal arguments advanced in the briefs. This is particularly true in a case like this one.

As discussed in more detail in yesterday's post on this case, if the Court of appeals finds, as the lower court did, that existing state law in New York bars gay marriages, then the court will have to decide two issues. First, is the "right" at issue "fundamental?" The State argued below that the right at issue was the right to marry someone of the same sex. The lower court rejected this characterization, however, holding the right at issue is the right to decide whom you are going to marry. That latter right seems clearly to be a "fundamental" one. And, given both the lower court's phrasing of the issue, and the substantial support that phrasing has in decisions of the US Supreme Court, it seems unlikely that the NY Court of Appeals will be able to escape the conclusion (even if it wishes it could) that there is a "fundamental" right at stake.

If the right is fundamental, then the City must show that the restrictions state law imposes on that right (in this case an outright ban on choosing to marry someone of the same sex) are no broader than absolutely necessary to vindicate some "compelling" state interest. It is in this context that the stipulation of facts is so important. If one were seeking to uphold a ban on same sex marriages, one would presumably want to be able to argue, say, that the state has a compelling interest in the protection of children, that allowing gay marriage facilitates the adoption of children by same sex couples, and that children are harmed by being raised in such an environment. There are a ton of factual and legal problems with such an argument, of course. But, they have the potential to cloud the issue. In this case, though, it appears that these types of arguments are entirely foreclosed. As the case is postured, the City appears to be limited to arguing that the State's "compelling" interests lie only in preserving the "traditional" definition of marriage and in ensuring that NY law remains consistent with federal law and the law in most states. It is possible that the Court of Appeals will accept such arguments, of course. But it seems unlikely, especially given the excellent job that the trial court did in demolishing them below.

None of this is to say that winning the case in the Court of Appeals is a sure thing. Far from it. Appellate Courts judges are wily characters, and there is no way to assure, in advance, how they will decide a case. However, this case appears to be as well positioned as any case can be if you want to establish a right to same-sex marriage. As such, taking this case to the Court of Appeals makes a good deal of sense.

Moreover, one can even win by losing. Given the Republican control of Congress (for which there appears to have no near-term remedy), the dependence of the Republicans on the "moral majority," and the spate of state constitutional amendments barring gay marriage that were passed in November, the only near term hope for a nation-wide right to same-sex marriage lies in the US Supreme Court. While it is not entirely clear from the lower court decision in this case, it does appear that Lambda Legal included a claim that a ban on same-sex marriage also violated federal due process and equal protection guarantees. If so, then, even if the New York Court of Appeals decides that a bar on same-sex marriages does not violate the New York Constitution, it will also have to decide that it does not violate the federal Constitution as well. Once it gets by the State issue, of course, it will reach the same conclusion with respect to the federal Constitution for the same reasons. However, a ruling on the legitimacy of the ban under federal law will provide a basis for pursuing the federal claim in the US Supreme Court. Indeed, losing the State constitutional question is the only way to get the issue before the Supreme Court.

Admittedly, it seems like a long shot to suppose that the Supreme Court, given its current composition and already burdened by the legacy of Roe v. Wade, would hold that the federal constitution requires states to allow same-sex marriages. However, as Judge Ling-Cohan noted, the decision of the court in Lawrence v. Texas does provide some basis for hope in this regard. Moreover, whatever doubts one has about the current composition of the court, it seems unlikely that this composition will get more hospitable to gay marriage claims any time soon. And, finally, there is really no downside risk in going to the Supreme Court now, since, even if that Court holds that a ban on same sex marriage does not violate the federal Constitution, that will leave opponents of such a ban in a situation not very much different than the situation they are in today: seeking to have such bans declared unconstitutional under state constitutions.

There are, no doubt, counter-arguments to this analysis, and reasonable minds can certainly differ on what the best strategy is for advancing the ball on this issue. But the main point seems to me to be unassailable: One should not assume that Bloomberg's decision to appeal the NY gay marriage case is evidence of either hypocrisy or political cowardice. In fact, it is arguably not just consistent with his duties as a chief executive; it may also be the a very smart strategy for expediting real legal recognition of gay marriage.