No Fig Leaf

The fig leaf Bloomberg hid behind in February when he announced the gay-marriage appeal was Attorney General Eliot Spitzer. Mayor Mike claimed that Spitzer "has taken exactly the same tact legally that I have done"—a falsehood then and now.

Actually, the judge in the key Manhattan case sent her decision directly to Spitzer and the AG refused to intervene, just as he had rebuffed a 2004 effort by Bloomberg, who personally approached Spitzer, to get him to join the case before it was decided.

Lambda's Susan Sommer sees a substantial difference between Spitzer's representation of the state in other gay marriage cases and Bloomberg's actions in this one, saying that Spitzer "is not a chief executive like Bloomberg." Spitzer "did not get to call the shots like the mayor," says Sommer, adding that he "is representing a client" and that not even Lambda questions that state law currently bars same-sex marriage, "requiring" Spitzer to defend it.

Spitzer has also made far different arguments than Bloomberg, whose lawyers principally rely on a particularly odious 1972 Supreme Court case, Baker v. Nelson, that Spitzer dismisses as "no longer carrying any precedential value." Bloomberg briefs call Baker—which Sommer says "followed the Book of Genesis" to reject gay marriage—"the seminal decision."

The other intriguing sidelight to the case was the attempt to intervene by Mike Long, the Conservative Party boss who's running Tom Ognibene against Bloomberg; State Senator Reuben Diaz, who appeared with Fernando Ferrer at a press conference last week; and several other fierce gay-marriage opponents.

Long's brief complimented Bloomberg's position, saying "the City aptly discussed the existing law concerning the constitutionality of same-sex marriage," but faulted them for not presenting "key sociological arguments" such as the supposed fact that "children fare better when raised by a mom and a dad." The city claimed it was defending the case vigorously and Long's attempt to intervene was tossed out.