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The following correspondence was sent to the chief counsel of the New York State Senate, Marcus Ferguson. This letter was a formal request for the New York State Legislature to conduct an inquiry of Attorney General Eliot Spitzer's failure and or refusal to enforce New York State’s Constitution and state law pertaining to homosexual marriage. Copies were provided to several key state Senators.

July 12, 2004

New York State Senate
Office of Counsel, Marcus Ferguson
Capitol Building, Room 500D
Albany, NY 12247

Re: Attorney General’s Failure to defend state law

Dear Marcus Ferguson:

As per our conversation of May 18, 2004, let this letter serve as formal request for an inquiry of Attorney General Spitzer’s failure and or refusal to enforce New York State’s Constitution and state law pertaining to homosexual marriage. This request for an inquiry is based upon the Attorney General’s public statements, his legal filings, legal filings in opposition by a public interest law firm, public records, and newspaper accounts. 

Attorney General Elliot Spitzer is required by his oath of office to vigorously defend the Constitution and laws of New York State to the best of his knowledge and ability. In fact he stated the following, “when the state is sued, it is my oath of office, my obligation, my constitutional duty to represent the state”. [1] This statement conflicts with his actions and his public pronouncement where he states, “I have no problem with gay marriage. I think the law has moved to a point where people are comfortable that [marriage] can be extended to people of the same sex”.[2]

This may be the basis for his convoluted legal opinion wherein he initially stated, “There are all sorts of legal violations going on that we involve ourselves in, depending upon the circumstances, the equities, the law”, and ”[ gay marriage] may be illegal” .[3] Upon further deliberation, he finally announced in his 28 page legal opinion, “[clerks] should not solemnize same-sex wedding ceremonies." "Same sex marriages are not legal". [4]He said New York's law contains references to "bride and groom" and "husband and wife" and does not authorize same-sex marriage.[5] This opinion was issued on March 3, 2004 three days after New Paltz Mayor Jason West illegally solemnized 20 homosexual marriages.

The Attorney General is required to render advisory opinions as to the interpretation of state law; however he cannot substitute his personal views as the basis for asserting that a law is unconstitutional. If he acts to interpret the constitutionality of state laws, he would be violating the separation of powers by acting as a de facto member of the judiciary rather then his role as Attorney General. It seems however that he is confused as to what his role is by stating,”"This office does not opine on constitutional issues."[6] Then he stated that the marriage laws "raise important constitutional questions involving the equal protection of the laws," that must be decided by the courts. [7]

Anytime the legislature enacts a law, there is a presumption that the law is valid and constitutional. Generally the only time a law can be declared unconstitutional is where an aggrieved party initiates a cause of action in a court of competent jurisdiction challenging the law’s validity. Therefore as Article 2 & 3 of the Domestic Relations Law is presumed to be valid, the Attorney General should not publicly question its constitutionality but must vigorously defend the law as required by his oath of office. In fact State Supreme Court Justice Michael Kavanagh in his June 7, 2004 ruling granting a permanent injunction barring New Paltz Mayor Jason West from performing homosexual marriages stated, “A public officer may not question the constitutionality of a statute and refuse to comply with its provisions”. [8]This raises the serious question; is the Attorney General acting as an advocate for a special interest group or acting as an advocate for the people of New York State? His duties of office require that he show undivided loyalty to the constitution of New York State, its laws and the people.

On March 4, 2004, a public interest law firm, Liberty Counsel sought a TRO from Ulster County Supreme Court prohibiting Mayor West from further solemnizing homosexual marriages in violation of state law. On the same day, the Attorney General sent a letter seeking that the TRO be denied as the Mayor and the Attorney General’s office were in “discussions” over the Mayor’s actions. On March 5, 2004, the Attorney General’s office and Mayor West’s counsel initiated a conference call to the court reiterating their request that the TRO be denied. Pursuant to the Attorney General’s own opinion stating that it is against the law to solemnize homosexual marriages and Mayor West’s vow to continue to defy state law, the TRO was granted. How can the Attorney General justify his failure to intervene and defend a valid state law?  

The Ulster County District Attorney brought misdemeanor charges against Mayor West for solemnizing homosexual marriages in violation of state law. Justice Katz (who was appointed by Mayor West) ultimately dismissed the charges, finding that the mayor had rebutted the presumption of the constitutionality of the marriage laws. The court’s decision indicates that the court had provided notice pursuant to CPLR 1012 that the court was going to address the constitutionality of the marriage laws, thereby giving the Attorney General the right to intervene to defend the constitutionality of the Domestic Relations law. The June 10^th opinion stated that the, “Attorney General did not exercise its right to intervene in this case to defend the state’s interest in a statute that has the effect of preventing same-sex couples from marrying”. How can the Attorney General justify his failure to defend state law?

In a Rockland County case challenging the state’s marriage laws, the Attorney General submitted a brief in defense of the marriage laws making the following arguments in opposition to the equal protection challenge. The two arguments were, “Licensing scheme comports with the current regime, under which same-sex marriages are denied legal effect by the federal government and at least 40 states”, and “the state has legitimate interest in preserving this historical legal and cultural understanding of marriage laws”. The second point only states that “Among those benefits are social continuity and economic equity”. However his brief does not explain what those benefits are. This inadequate defense was previously advanced by the Attorney General of Oregon and was ultimately rejected by the Oregon Court. It should be noted that the Attorney General of Oregon held the same or similar personal opinions as Eliot Spitzer regarding the constitutionality of his state’s marriage laws.

Eliot Spitzer declined to utilize proven defenses that were previously successful in similar challenges in New Jersey and Arizona. It appears that he is defending the law in form but not in substance. This does not constitute a vigorous defense of the marriage laws to the best of his knowledge and ability; rather it is a blatant attempt to undermine the state’s defense of the marriage law by advancing an inadequate defense.   

When Liberty Counsel, a public interest law firm attempted to intervene to advance those separate arguments in the Rockland County case on behalf of the sponsors of the NY Defense of Marriage Bill, the Attorney General filed a motion in opposition which the court granted. The Attorney General’s office included in his motion the following unnecessary and irrelevant political commentary stating, “Nor will the Department dispute that petitioners and their families are entitled to dignity and respect, that children raised in those families can thrive, and that same-sex couples can be as committed, stable, loving and nurturing as opposite-sex couples.”  This should raise questions regarding his ability to be objective when interpreting state law.

In April of 2004, the American Civil Liberties Union along with a private law firm filed suit in New York City on behalf of several homosexual couples challenging the constitutionality of the state’s marriage laws. Mayor Michael Bloomberg requested assistance from the Attorney General in defending state law; however Eliot Spitzer declined to intervene to defend state law. [9]How can he justify his refusal to assist in defending state law when specifically asked to by New York’s Mayor?

In late June 2004, the Attorney General filed an amicus brief in support of a man in a Vermont civil union who seeks to be considered a “spouse” for purposes of New York’s wrongful death statute. In that case, Mr. Langan sued a New York hospital for wrongful death after Mr. Langan’s Vermont civil union partner died. The hospital moved to dismiss on the basis that Mr. Langan was not a “spouse” of the deceased, and therefore, could not maintain a claim for wrongful death. Another argument advanced in the case has been that the Legislature should determine whether Vermont civil union partners should be included as a “spouse” under New York’s wrongful death statute. Last year, Nassau County Supreme Court Justice Duanne held that Mr. Langan should be treated as a spouse under New York law. On appeal to the Appellate Division, the Attorney General filed a brief in support of Mr. Langan’s position that he should be treated as a spouse. Who does Eliot Spitzer represent? Does he represent the state or does he represent private litigants who share his personal views contrary to state law.

In an effort to determine what the Attorney General’s actual position on homosexual marriage is, I contacted his office on May 3, 2004 and again on May 17, 2004. Both times his office was vague and non responsive. This does not represent open government that is accountable to the People.

In closing, we believe that a clear and convincing argument has been shown for the New York State Legislature to conduct an inquiry of the Attorney General’s actions and or inactions as to his failure and or refusal to vigorously and adequately defend state law. The People of the State of New York deserve nothing less.

If any further information or documentation is required, please advise us accordingly.