David Boies, Andrew Cuomo Headline ESPA Dinner

New York’s LGBT lobby celebrates marriage victory and two decades

The Empire Pride Agenda could scarcely have hoped for a better one-two punch of speakers to offer up at its 20th anniversary Manhattan fall dinner on October 27.

David Boies, one half of the all-star litigation team currently leading the charge in federal court against the constitutionality of California’s Proposition 8, delivered the keynote address. Attendees, however, might just as easily remember the evening for the appearance of a more familiar face who has done several victory laps in the LGBT community since the enactment of marriage equality in New York in late June — Governor Andrew Cuomo.

As was the case when he marched in the LGBT Pride March two days after signing the marriage law, Cuomo made a buoyant appearance at the Pride Agenda dinner. Lauding the advocates with whom he worked to win the successful June 24 State Senate vote, the governor said, “You affirmed people’s sense of government and capacity of government. You affirmed people’s belief in humanity — that people will do the right thing under the right circumstances. That people are accepting and people are nonjudgmental. And if you appeal to people with facts, they will actually rise to their better selves. You did that. And you did it at a time when people desperately needed affirmation.”

Cuomo acknowledged that the sense of victory — and likely the political benefits for him — extended well beyond the gay community.

“They inhaled it and they absorbed it because they needed it because there’s negative everywhere,” he said of New Yorkers generally. “There’s anxiety, there’s fear, there’s frustration that nothing is working and trust is lost, and people are unhappy. And here was a beautiful moment, where that was all gone, and people did the right thing… This wasn’t a victory for the gay community. It was a victory for society. And this message is going to resonate all across this nation. Now part of it is the power of New York, because this is New York. And when New York does something, everyone else notices it.”

In the same triumphal tone, Cuomo recounted a story about his youngest daughter, Michaela, telling him that her grandfather, former Governor Mario Cuomo, had given his son “a gift” with his “reputation [as] the voice of social justice” in his opposition to the death penalty and advocacy of a woman’s right to choose. “I am the daughter of Andrew Cuomo,” the current governor recalled her telling him, “the man who signed marriage equality into law, and that is a gift you gave me.”

Cuomo’s appearance at the dinner provided a hint about a potentially emerging political story that could have resonance locally over the next two years. When the governor appeared last month at a New York Times panel about the gay marriage law, he was joined by a Republican state senator as well as City Council Speaker Christine, but neither of the two Democratic legislative sponsors of the measure. Quinn was also at his side at the Pride Agenda dinner, giving the introduction. Cuomo opened his remarks by saying, “First, to Speaker Quinn, I figured out right away the strategy for success was just do whatever Christine told me to do. Chris is really extraordinary… She’s not just a great person, she’s a great leader, and the best is yet to be for Christine Quinn.”

The speaker had already offered exceptional praise for the governor.

“You know, there aren’t a lot of things in life that you can actually say, if it wasn’t for one particular person, it wouldn’t have happened. Very few things are kind of that black and white. And look, a lot went into marriage, everyone in this room deserves a huge amount of credit… But then one particular person elected made all the difference in the world… Rarely do you see somebody like Governor Cuomo who comes into office and says, ‘Don’t wait, we’re going to do it in the first year.’”

David Boies opened his remarks by acknowledging that the LGBT community has won some remarkable legislative victories in the recent past, with gay marriage’s victory in New York and the repeal of Don’t Ask, Don’t Tell, which was signed by President Barack Obama late last year and took effect on September 20.

He noted, however, the sobering reality that most gay people across the nation recognize — that there are many barriers to equality that “cannot change legislatively in a reasonable time frame.” Those hurdles are what make litigation in the courts so critical, Boies argued. “There is a reason there is a Constitution, and there’s a reason there’s a bill of rights.”

In a lawsuit brought by two plaintiff California same-sex couples and funded by the American Foundation for Equal Rights (AFER), Boies has worked on the Prop 8 challenge since 2009. With co-counsel Theodore Olson, against whom he represented Vice President Al Gore in the 2000 Bush v. Gore Supreme Court case that settled that year’s election, Boies won a district court victory against the 2008 anti-gay voter initiative in August 2010. A potential appeal of that verdict by the right-wing advocates who initiated the Prop 8 referendum is currently being considered by the Ninth Circuit Court of Appeals.

Boies encapsulated the key arguments he and Olson made on behalf of AFER and the plaintiffs in three cardinal points — that a ban on marriage by same-sex couples hurts some Americans; that it helped no one; and that the nation’s courts view the right to marry as fundamental. In political campaigns and legislative fights, he said, opponents of gay marriage can obfuscate these issues, but “the witness stand is a lonely place to lie” — especially, he could have added, when those testifying for the other side are facing cross-examination from the likes of Boies and Olson.

When AFER announced its intention to challenge Prop 8 in court in 2009, Governor Arnold Schwarzenegger and Attorney General Jerry Brown chose not to defend the ballot measure. The referendum’s sponsors were given the right to intervene in its defense at the trial level. Their ability to defend Prop 8 in an appeal of AFER’s victory, however, poses a different set of legal questions, which the Ninth Circuit Court of Appeals has not yet resolved.

In September, the California Supreme Court heard arguments on an advisory question the federal appellate court had posed — whether the referendum’s sponsors have standing under state law to pursue such an appeal in the absence of the governor and attorney general participating. An advisory ruling from the California court is not binding on the Ninth Circuit but will likely be influential in its determination as to whether the appeal can go forward.

Boies noted the likelihood that should an appeal of AFER’s 2010 victory not be allowed to move forward, gay marriage will resume in California but with no wider application of the equal protection and due process rights identified in District Court Judge Vaughn Walker’s ruling.

“A Prop 8 win may apply only to California,” he told the Pride Agenda audience. Then signaling his commitment to keep at the cause of marriage equality, he added, “We may need to bring another lawsuit in another place.”

ESPA’s dinner marked two decades since the state’s LGBT lobby first gathered for a fall gala in Manhattan. The Pride Agenda came into being in 1990, after the merger of the Albany-based New York State Gay and Lesbian Lobby and New York City’s Friends and Advocates for Individual Rights, or FAIRPAC.

Masters of ceremony for the evening were out gay stage and screen actor and singer Alan Cumming and actor Laura Linney, who first came to wide notice as Mary Ann Singleton in the television adaptation of Armistead Maupin’s “Tales of the City” and now stars as a woman living with cancer on Showtime’s “The Big C.”