The whole drama about Governor Eliot Spitzer introducing same-sex marriage legislation, and the legislature failing to pass it, is a hoax. Waiting for the legislature is just stalling. Sptizer, right now, today, with nothing else happening, could make same-sex marriage legal in New York. All he has to do is sign an executive order to have the New York State Department of Health change wording on some forms.
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 is no law on the books in NY state that prevents same-sex marriage.In Informal Opinion 1 issued by then-Attorney General Eliot Spitzer's office, it states again and again that New York State law "does not explicitly prohibit same-sex marriage" and that it "does not expressly bar marriage of same sex couples." The rather cowardly Attorney General's opinion refused to comment on the constitutionality of interpreting this law to bar same-sex marriage. Spitzer's 2004 opinion can be found at http://www.oag.state.ny.us/lawyers/opinions/2004/informal/2004_1.pdf
Imagine if this opinion had been issued forty years ago refusing to comment on the constitutionality of a Jim Crow law? What would we have thought? As Green Party New Paltz Mayor Jason West told CNN in response to the call for him to be enjoined from solemnizing same-sex marriages: "Separate but equal didn't work for blacks and whites, and it doesn't work for gays and straight people."
The only thing that prevents same-sex marriage in New York is the New York State Department of Health. The Department of Health has insisted that a marriage license can only be issued to a male and female couple, even though same-sex marriage is not expressly prohibited under New York law. The Department of Health is under the direct control of the governor. Today, with an executive order, Governor Eliot Spitzer can change the Department of Health rules and allow for same-sex marriage in New York. There is no need to wait for the State Assembly or the State Senate.
So all this talk about introducing same-sex marriage legislation is just a political feint. Spitzer looks like he was trying to keep a campaign promise without having to actually do it. The worst part is that organizations like Empire State Pride Agenda are taking part in this fraud by lauding Spitzer's non-action instead of exposing it.
"I do not think there is a realistic shot that it gets passed, but I will submit it because it is a statement of principle that I believe in and I want to begin that dynamic," said the governor, a Democrat. "The bills that I talked of last week are the ones that I absolutely believe we can pass."
During his gubernatorial campaign last year, Spitzer voiced support for gay rights and pledged that he would propose same-sex marriage legislation. Gay rights advocates lauded his commitment, and endorsed his candidacy. Now that he is governor, they are commending his follow-through.
Ian Van Capelle, executive director of the Empire State Pride Agenda, said, "The moment Eliot Spitzer introduces his marriage equality legislation, he will have secured his place in the American gay rights movement as the first governor in the country to do so."
Governor Eliot Spitzer's moment is now.
Because right now, at this very moment, Eliot Spitzer himself, can change the situation and legalize same-sex marriage in New York, with just a signature.
In the lead-up to this election, Eliot Spitzer made it clear that one of the issues he was running on was legalizing same-sex marriage. Groups like Empire State Pride Agenda endorsed him based on that stand, and told their constituents to vote for him based on that stand. Eliot Spitzer won, in what his colleagues asserted was a landslide. So, Governor Eliot Spitzer has the mandate and he has the power.
Why then is Governor Eliot Spitzer playing the game of pretending that he must rely on the legislature? Why are groups like Empire State Pride not calling Governor Eliot Spitzer out and demanding that he actually, truly follow through on his promise now?
Governor Eliot Spitzer said that when he went to Albany, he would change things on Day One. Though, this game he is playing is the same kind of game his Democrat colleagues have played for years. Democrats in the New York State Assembly constantly put up bills with not enough support and not enough consensus. When these bills go nowhere in the State Senate, the Assembly Democrats take credit for their vision, and blame the Republican State Senate for their defeat. But, in the end, the public is left with nothing.
Now, Governor Eliot Spitzer is playing a similar game. He is claiming that he is a visionary for putting forward a no-win piece of legislation. Spitzer should just do the right thing now and sign same-sex marriage into existence.
No one should be waiting around for Governor Eliot Spitzer to do the right thing. It is time to start laying groundwork for a progressive challenger in 2010. With the game Spitzer is playing his proposed same-sex marriage law will not even be passed by then. And, he probably knows that all too well.