New York’s Likely New Team

In assessing the impact of a potential gubernatorial victory by Eliot Spitzer for New York’s gay and lesbian community, one factor blazingly obscures all others.

If elected, Spitzer, who for the past eight years has been the state’s Democratic attorney general, would be the first governor in U.S. history to have run and won on a platform advocating same-sex marriage rights.

Spitzer is faced with a Democratic Party primary competitor, Nassau County Executive Thomas Suozzi, and, if he clears that hurdle, a Republican opponent, John Faso, a former upstate assemblyman, in November, but he is dozens of points ahead of each in the polls and also far better financed. It’s a good bet that the attorney general will win the historic electoral distinction as a gay marriage supporter.

Still, Spitzer has at times drawn fire from some in the LGBT community, specifically AIDS activists. He also has taken some political positions distinctly to the right of New York’s most progressive Democrats, including his running mate, David Paterson, the state Senate minority leader from Harlem, and even Suozzi.

So for Spitzer, advocacy of gay marriage is a potent trump card indeed among LGBT voters.

In a telephone interview last week with Gay City News, Spitzer reaffirmed that if elected this November he intends to introduce in 2007 what is known as a program bill— one of a number of legislative proposals, including a budget plan, initiated out of the governor’s office each year — legalizing gay marriage.

“That is what I have said repeatedly and that is what I intend,” he stated.

A same-sex marriage bill has been co-sponsored by Manhattan Democrats Tom Duane, an out gay senator, and Assemblyman Dick Gottfried for several years, but has never had a legislative hearing. Introducing a similar measure as a gubernatorial program bill would signal Spitzer’s commitment to pressing the Legislature for active consideration of the measure.

Yet even on gay marriage, Spitzer has faced questions within the gay community.

When the Court of Appeals, New York’s highest court, considered four same-sex marriage cases in May, it was Spitzer’s office and the Bloomberg administration that were the defendants arguing to uphold the current definition of marriage. Repeatedly, Spitzer has explained that it is his job to represent the state and that had he recused himself Governor George Pataki would simply have appointed a special counsel, at additional taxpayer expense, to defend the marriage statute.

But Spitzer makes no bones about the contradictions and irony of his position. In March 2004, as gay marriage licenses issued in San Francisco created a firestorm of activism nationally, he issued an advisory opinion that found that although current state law bars same-sex marriage, New York State precedent requires that such unions sanctioned in other states or countries be recognized here. Spitzer noted that the status quo in New York raises “important constitutional questions involving the equal protection of the laws,” but hastened to add that his office “cannot and will not” resolve those questions.

Of course, the Court of Appeals last month did resolve those questions— coming down on the side Spitzer argued.

Despite his victory in court, Spitzer said he does not agree with the decision. The Court of Appeals found that the marriage challenge should be decided using a rational basis standard — all New York needed to show was that the current law had some logical basis, in this case, the importance of encouraging straight couples bearing children to marry to protect those offspring. The law could have been subjected to more demanding analysis and forced the Court to weigh the rights of gay and lesbian couples and their children.

Asked if he agreed with the standard the Court applied, Spitzer replied, “I know the answer I want to give you and I am trying to figure out what I can say as a lawyer in that case. As the state’s lawyer, we made the arguments that we needed to make in defense of the state law. As a judge I would have voted with Judge Kaye. I believe that the question should have been evaluated using strict scrutiny.”

Judith Kaye, the Court’s chief judge, one of the two who voted for same-sex marriage, wrote a withering dissent that predicted, “future generations will look back on today’s decision as an unfortunate misstep.”

A key question that now confronts Spitzer is how hard he will push for a marriage bill given the myriad issues facing him should he become governor next January. John Shields, the mayor of Nyack in Rockland County and, with his partner, one of the marriage plaintiffs, has said the attorney general told him gay marriage legislation would take a decade.

Asked about this, Spitzer responded, “What I think I probably said was that there is an uncertainty in any legislative process. It is a process of garnering the votes. What I was suggesting was if you look at the time horizon and the demographics, it seems almost inevitable that the coalition for this measure will come together.”

He noted that gay marriage has much broader support among young voters than old ones.

In a July meeting with the editorial board of The Daily News, Spitzer was asked how important gay marriage is to his agenda, and he responded, “I have said that I would propose a bill. Having said that, when you asked me at the very top [of the interview] what the priorities were, I think you heard my answer to that.”

Those priorities were political reform in Albany and reinvigorating the upstate economy—two obvious necessities with unquestionable universal appeal — yet his response is a reminder that when push comes to shove in the state capital, horse trading must be done to get things accomplished,

particularly with a politically-split government, and that process involves tough choices about what’s most important.

In last week’s interview, Spitzer resolutely refused to discuss questions of legislative strategy — whether it made sense to move forward with the bill in the Democratic Assembly; whether the Assembly would pass it; if a Democratic Senate would be needed to enact the law; and even if the Democrats have any shot at winning the five seats needed to take control of the Senate this year.

Spitzer’s running mate, Paterson, in an interview in his campaign office this week, was more forthcoming, drawing on his 21 years in Albany. He said there is “a possibility” his party could take the Senate this year “in a perfect storm”—landslide victories by the Spitzer/Paterson ticket and Senator Hillary Rodham Clinton. But Paterson noted since becoming minority leader in late 2002, he has set his goal of winning control by 2008, “with ‘10 as the back-up.” Assuming that the Republican Senate leadership, which bottled up the gay rights bill for 28 years, will not pass a same-sex marriage law, Paterson’s cautious prognostication suggests a long wait.

Is a Democratic Senate needed?

Paterson noted that, with the help of nearly all the Democrats, the Republican Senate did pass the gay rights law—but with only with the “special circumstances” of a quid pro quo between Pataki and the Empire State Pride Agenda regarding a 2002 re-election endorsement.

“I don’t know when that bill hits the floor, but if there’s a Democratic Senate I know when it hits the floor,” the prospective lieutenant governor said. “So it doesn’t have to be a Democratic Senate. But a Republican Senate, before we take them out, can prove us wrong. Put it on the floor right now.”

Asked whether Assembly Speaker Sheldon Silver, the Lower East Side Democrat who to date has been mum on the issue of gay marriage, should pass a bill in his house to put pressure on the Senate Republicans, Paterson responded, “I can’t say what the right way to go is. It always helps to know where people stand and a vote tells you where people stand.”

Proposed reform in Albany to allow a minority of either house to force a floor vote would increase the likelihood of earlier consideration of the marriage bill, he said.

Paterson was similarly forthcoming in discussing policy areas—including HIV testing and the death penalty—where he and Spitzer disagree.

When asked about the legislative proposal from Dr. Thomas Frieden, New York City’s health commissioner, to eliminate the requirement for written consent before any HIV test in favor of documented verbal consent and to allow the health department to share patient treatment with other health care providers, Spitzer sounded unfamiliar with the specifics.

“Let me pass on those two,” he said. “This is where the details are very important.”

Frieden caught a lot of flak from community advocates who cited privacy concerns at a series of public forums earlier this year, and in June the Assembly quietly dropped action on the bill.

Spitzer did speak to the underlying issue.

“The balance is a difficult one between privacy concerns and the legitimate use of information,” he said. “To the degree to which it will serve the goal of public health, I have often come down on the side of greater information with consent.”

But that final caveat has not always been in the mix. During the hotly contested 1998 Democratic primary contest for attorney general, Spitzer criticized an opponent, state Senator Catherine Abate, for her failure to support a 1996 law that required that all newborn babies in the state be tested for HIV, with or without the mother’s consent. Opponents of that law had argued it amounted to mandatory testing of pregnant women, discouraging them from seeking testing voluntarily and perhaps driving them away from the health care system.

Last week, Spitzer defended the so-called Baby AIDS bill, saying, “I think the record has borne us out, and I know there are those who will disagree. This was an opportunity for us to care for a newborn kid. It was vital to health and a minimal invasion.” A June story in Gay City News, however, reported that the greatest decline in mother-to-infant HIV transmission came prior to implementation of the bill.

Paterson opposed the Baby AIDS bill, and said prenatal HIV transmission was best prevented by winning the mother’s cooperation and treating her with AZT during her pregnancy.

Spitzer and Paterson also disagree on mandatory testing of accused rapists, an issue on which Manhattan Democratic state Senator Liz Krueger was castigated by her 2002 Republican challenger Andrew Eristoff. Spitzer said he would support such testing if done “pursuant to a court order.”

“I think it is fair for a victim to seek medical information on a suspect,” he said.

Paterson, in contrast, agrees with Krueger and many AIDS advocates that the most important step a rape victim can take is immediate post-exposure-prophylaxis that can prevent infection even if transmission has taken place, coupled with periodic testing. A negative test result on an alleged rapist will not provide definitive information to a victim in any event, since the suspect could be newly infected.

Paterson was careful to couch this disagreement on a medical, rather than civil liberties basis. “With respect to people who get arrested for rape, in that respect I basically agree with Eliot,” he said, “I could care less what happens to them, because they probably did it.”

Paterson also walked a fine line on his differences with Spitzer over the death penalty. With Pataki’s death penalty law struck down in the courts, the attorney general has talked up a new statute, aimed at targets such as terrorists and cop killers. Unlike the marriage issue, where Spitzer is more liberal than his primary opponent Suozzi, the Nassau Democrat is categorically opposed to the death penalty.

Spitzer’s running mate, in contrast, is now signaling a new understanding of those who think differently than himself on the death penalty.

“As a person who never thought they would even entertain a view that the death penalty is valid, I think I began to entertain that on September 11 and then on September 12. It didn’t change my view on the death penalty; I am against it,” Paterson said. “But it enhanced my respect for people who believe in it.”

When Spitzer asked Paterson to join him on his ticket, the senator, hoping to one day be majority leader—“the second highest institutional position in the state [from which] you don’t need to ask anyone for any kind of authority to do something”—had his doubts, three days of them, to be precise. But when it became clear that Spitzer “was not accepting no” and was willing to ensure his lieutenant governor a degree of authority over and accountability from state commissioners in the executive branch — “a system where I don’t get isolated” — Paterson signed on.

And on the campaign trail, the two are vaguely reminiscent of the Clinton-Gore team in its early days. Last week at Brooklyn’s St. Francis College, Spitzer offered brief introductory remarks before Paterson rose to deliver a major policy statement on domestic violence, in which he proposed, among many things, to open up the Family Court system to same-sex couples, so that interventions short of criminal charges can be attempted, as has always been the case with more traditional families.

Paterson explained that he will be the ticket’s point man on a variety of other issues, including energy policy, stem cell research, minority women’s business initiatives, and urban revitalization.