Are the Proposition 8 Challengers Overplaying their Hand?

 

With the recent news that the Supreme Court has granted certiorari to a bevy of same-sex marriage cases; including Hollingsworth v. Perry, it looks like 2013 is already promising to be a landmark year, politically and doctrinally. With the cases before it, the highest court has the potential to entirely do away with all civil marriage laws in every state and the federal government which discriminate against gay, lesbian, bisexual, and transgender Americans. However, many same-sex marriage proponents remain fearful that it might be too soon to go to the courts because if any or all of these cases backfire and the Court upholds any one of those laws, America might be stuck with a noxious Bowers v. Hardwick-like precedent for a generation. If the Supreme Court were to write an opinion considering and rejecting a constitutional right to same-sex marriage, that could prove calamitous to any future suits challenging state marriage laws in the federal courts.

To understand where the marriage equality movement now stands, now, at the end of the year 2012, same-sex marriage is the law of the land in 9 states and the District of Columbia. A lesbian couple can walk into any City Hall in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Maryland, Washington State, and Washington, D.C. and successfully apply for a marriage license, their marriage is recognized as valid according to their state agencies and those of some (but not all) other states.  

 However, despite the gay marriage insurgency over the past eight years, there is still plenty of work to be done. In 41 states, LGBT Americans are still denied the right to marry, in 36 states they can’t even get a civil union. According to federal government agencies like the IRS, the Federal Housing Administration, and the Veterans Administration, all those marriages in Boston and Seattle and Des Moines have never happened. Thanks to the federal Defense of Marriage Act, the federal government treats a married couple like legal strangers, and uses it to deny the approximately 1,100 federal rights and responsibilities afforded to couples in civil marriage.

Enter Hollingsworth v. Perry. Originally Perry v. Schwarzenegger, then Perry v. Brown, this is the celebrated case by brought by Ted Olson and David Boies challenging California’s Proposition 8, the 2008 ballot initiative which California voters approved to ban same-sex marriage by constitutional amendment. Olson and Boies consider this to be the civil rights issue of our time (rightly so), and they see the potential for this case to result in a Supreme Court decision establishing a constitutional right to same-sex marriage, striking down each and every Defense of Marriage Act in every state in the Union. Judging by their prior writings and public pronouncements, it seems that there might be four Justices (Ginsburg, Breyer, Kagan and Sotomayor) who might be likely to support such a bold declaration for gay marriage rights. Though Justice Kennedy waxed eloquently in his majority opinions in Romer v. Evans and Lawrence v. Texas about the “dignity deserved by gay men and women”, it is unlikely that Kennedy might take such a striking pronouncement in this case because there are plenty of ways that the Court can make a decision leading to the nullification of this repugnant amendment without answering the fundamental question. 

First of all, the Court can deny the defendants standing, because Governor Jerry Brown and Attorney General Kamala Harris refuse to defend Prop. 8 – it is being defended by the coalition of anti-gay activists who organized the ballot number. Generally speaking, this is not very kosher – states have to defend their laws if they are going to appeal to the Supreme Court. If SCOTUS decides to reject the appeal on these grounds, or remand it back to a lower court and allow only the State of California to appeal, and the State refuses, then Prop 8 has already been struck down by the federal district court and the Ninth Circuit Court of Appeals. The effect would be that gay marriage is legal in California once again.  

More likely, the Court might make a very narrow ruling overturning Prop 8 essentially echoing Judge Stephen Reinhardt’s opinion in the Ninth Circuit decision. Judge Reinhardt, ever cognizant of the politics of the Court and the fact that Justice Anthony Kennedy is the swing vote, wrote a decision which took pains to invoke Kennedy’s prior opinions in Romer v. Evans and Lawrence v. Texas. According to Reinhardt, the facts of this case mirror that in Romer; after some municipalities enacted ordinances banning discrimination against homosexuals, Colorado voters approved a ballot initiative which would prohibit any such anti-discrimination ordinances protecting the civil rights of homosexuals. In that landmark decision, Kennedy wrote that there was no basis for this referendum other than sheer “animus” against gay people; therefore, it failed basic rational basis review and was unconstitutional. Reinhardt also reiterated Kennedy’s emphasis on the fact that Coloradans had given gay people a civil right and then taken it away for no rational purpose – much like the present case in California. If consistency is a virtue, it appears most likely that Justice Kennedy would write the majority opinion or at least a controlling opinion along these lines. 

It is also possible that the four liberal Justices plus Kennedy might accept Olson and Boies’ argument that, lurking somewhere in the penumbras of the Fourth, Fifth, Ninth, and Fourteenth Amendments, the Constitution protects the individual’s fundamental right to same-sex marriage. Especially if you read Kennedy’s opinion in Lawrencev. Texas, which stressed that “[t]he petitioners are entitled to respect for their private lives” and that, therefore, “[t]he State cannot demean their existence or control their destiny”, it appears that Kennedy feels quite sympathetic to the fundamental injustice that is perpetrated against same-sex couples nationwide by governmental denial of their intimate relationships. If you read Justice Kennedy’s opinions in Romer and Lawrence, you cannot help but think that if it came down to it, he would gladly write the decision that establishes a constitutional right to same-sex marriage. 

 However, to do this would mean that – in one fell swoop – the Supreme Court would establish gay marriage across the entire United States, ordering the legislatures of every state and jurisdiction which has not already enacted such a law – i.e. Alabama, Alaska, Arkansas, Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Texas, West Virginia, Wisconsin, Wyoming, and also Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marianas Islands, American Samoa, the Tribal nations, the U.S. Armed Forces, and the federal government to amend their family codes immediately. Marriage equality would reign supreme from sea to shining sea.  

However, there are reasons for such a bold move, both jurisprudential and political at this point in time. First of all, it seems that SCOTUS can affirm the Ninth Circuit’s theory as to why Prop 8 is unconstitutional without addressing the broader issue of whether or not the Constitution provides a fundamental right to same-sex marriage. According to the Doctrine of Ripening, the Court is an inherently conservative institution which ought to avoid constitutional issues if at all possible and to only address those constitutional questions which are absolutely necessary to the judicial review of a given law. In other words, the Court picks the lowest-hanging fruit. So long as the Court can strike down Proposition 8 for lack of standing or on the narrow Romer precedent, there is no need to reach for the lofty firmament of fundamental constitutional rights. 

Moreover, just imagine the political fallout if five (maybe six) Justices on the Supreme Court issue such a sweeping decision that allows LGBT Americans nationwide the right to marry.

For comparison, let’s compare status of legal same-sex marriage in 2013 to the status of legal abortion in 1973 – the year that the Court decided Roe v. Wade. When Justice Blackmun wrote that landmark decision, finding a fundamental right to abortion in the penumbras of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, states had just begun to liberalize their abortion laws. In 1967, Colorado, Oregon, and North Carolina had paved the way for liberalizing the ban on abortion and allowing doctors to carry out the procedure in the case of rape, incest, and medical emergencies threatening the life and health of the mother. Only in four states – New York, Washington, Hawaii, and Alaska – was abortion outright legal.

 

So in 1973 when Justice Blackmun, by judicial fiat, declared abortion to be a fundamental right across the land, it energized the pro-life movement into a political behemoth not just in the Heartland but even in highly-Catholic, highly-Democratic states like Massachusetts, New Jersey, Illinois and Pennsylvania. Historians credit this decision with splintering the New Deal coalition, giving rise to organizations like the Christian Coalition and the Moral Majority, and the Christian Right’s takeover of the Republican Party. Roe v. Wade indirectly gave rise to 12 years of Reagan and Bush and the appointment of four conservative Supreme Court Justices – Scalia, Thomas, O’Connor, Kennedy – who tapered back Roe as far as they could. What was a stunningly progressive movement of liberalized abortion laws in the late 1960s and early 1970s – even in states like Kansas, Arkansas, Alabama, and Mississippi – stopped dead in its tracks. The pro-life movement and the growth of the Christian Right swung the politics of those same states swung so far to the right that, almost half a century later, it would be almost unthinkable that the legislatures in Topeka, Little Rock, Birmingham and Jackson could ever take such steps to advance human rights and the dignity of women on their own volition today as they did 40 years ago. 

So what would a sweeping decision in Hollingsworth v. Perry do to the movement for marriage equality? There are two schools of thought. 

The first hypothesis is that, like Brown v. Board of Education, Hollingsworth could establish a resounding opinion affirming the rights of same-sex couples that resolves this question once and for all. Every loving couple in not just San Francisco and West Hollywood but also Wichita, Caspar, Baton Rouge and Chattanooga would be able to go to City Hall and get their marriage license and live happily ever after. The End. 

The second hypothesis, which I fear is more likely, is that such a sweeping decision which changes the marriage laws of 41 states in one fell swoop creates an enormous backlash which sets back the cause of marriage equality, gay rights in a broader context – let alone liberal politics. Adam and Steve would be able to get their marriage license at the Montgomery City Hall, but there would be riots and lynch mobs outside. Maggie Gallagher and Brian Brown and Phyllis Schlafly would hold rallies denouncing “judicial activism” at the courthouse steps of every county seat in every Congressional district in the country. It would look like this all over Florida, Ohio, Michigan, Wisconsin, and Pennsylvania. Republicans would take back the Senate in 2014, in 2016 Marco Rubio would win much of the heavily Catholic industrial Midwest and Southwest, and President Rubio would nominate replacements for Justices Breyer, Kennedy, Scalia and Thomas who would make Robert Bork look like Leon Trotsky.  

In so many words, for Hollingsworth v. Perry  to establish a constitutional right to same-sex marriage nationwide, at this juncture in time, might counterintuitively be very, very bad for the marriage equality movement in the long run.

When it is most successful, social progress is a gradual process which reaps one small victory at a time until, eventually, one day people look up and realize that that once crazy radical idea has become the mainstream consensus. That is why this student of law and politics hopes that the Court makes a decision in Hollingsworth which finds Proposition 8 to be unconstitutional – though along the narrow Romer v. Evans-like grounds that applies only to California. Mince no words – Hollingsworth v. Perry would go down down in American history as one of the greatest – if not the greatest – courthouse victory for the gay rights movement thusfar. The population of the United States able to marry a person of the same sex would instantly double.

2013 might yet be the most fruitful year in the history of the marriage equality movement. It looks like marriage equality statutes will be victorious at the statehouses in Illinois, Hawaii, Rhode Island, and Delaware. The Colorado and Minnesota legislatures also appear to be poised to pass civil union laws. 2013  might end with a total of 14 states plus the District of Columbia with marriage equality, and civil union or strong domestic partnership laws in 5 others.

 

With the wind to its back, this is how the marriage equality movement has to turn the map purple: activists have to lobby their state senates, houses of representatives, and general assemblies to enact new laws and overturn state Defense of Marriage Acts one at a time, one by one until there’s something like 25 of them. At this rate, sometime around 2020 or 2025 there will probably be a majority of states, representing a clear majority of the population, with some form of either same-sex marriage or civil unions on the books. It’s only a matter of time.

 

When that time comes that the facts on the ground have shown that there is a consensus among the states and among the American people that allowing same-sex couples to marry is a matter of fundamental rights, and that those holdout states who are the outliers, then would be the proper time to go in for the kill. Only when it’s apparent that this new concept of a constitutional right to same-sex marriage has ripened and is ready to be picked will it be time for Ted Olson and David Boies to argue before the Supreme Court that a cute lesbian couple in Chattanooga denied a civil marriage license are being denied their fundamental rights guaranteed by the penumbras of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. At that point, what is indeed a somewhat radical interpretation of the Constitution might look rather matter-of-fact.

Marriage rights advocates have their heart in the right place, but they (we) all have to be patient. As Dr. King once said, “the arc of history is long, but it bends toward justice.”

It’s only a matter of time until the map looks like this:

 

Is "Glitter-Bombing" Criminal Assault?

Over the past few years, marriage equality activists have conjured a new form of protest known as “glitter-bombing.” To protest the lack of equal rights for LGBT individuals, some activists employed the novel tactic of showering homophobic politicians with pink or rainbow-colored glitter. Recent victims of glitter-bombing have included Republican candidates Mitt Romney, Newt Gingrich, Tim Pawlenty, Rick Santorum, and Ron Paul. Prominent supporters of gay rights, including Senator Joe Lieberman and writer Dan Savage, have also been glitter-bombed because some LGBT activists felt that their support for the cause does not go far enough.

Though glitter-bombers are using this tactic as a form of political expression, it is clearly not protected by the First Amendment because it is not pure speech – it is conduct involving a physical activity with an object in relation to another person.  One person throwing an object towards another person might implicate the civil and criminal charges of assault and battery. Though social conservatives often accuse the marriage equality movement of forcing judges to “redefine marriage," thanks to “glitter-bombing” the marriage equality movement might force criminal law practitioners to redefine the charge of “assault.”

The common law charge of assault consists of 1) an act with intent to cause a harmful or offensive contact with a person, or an imminent apprehension of such a contact; and 2) the other person is thereby put in such imminent apprehension.

Former Arkansas Governor Mike Huckabee has suggested that glitter-bombers should be arrested, “[t]hat’s an assault.  It’s one thing to yell at a candidate, you never put your hands on him, you don’t touch him.”

“Glitter bombing is clearly an assault and should be treated as such,” recent victim Newt Gingrich explained, “[w]hen someone reaches into a bag and throws something on you, how do you know if it is acid or something that stains permanently or something that can blind you?  People have every right to their beliefs but no right to assault others.”

In February 2012, college student Peter Smith threw glitter at Mitt Romney while at a campaign rally in Denver.  Romney’s Secret Service detail pulled him away from the stream of glitter just in time to avoid contact, and within a moment the candidate resumed shaking hands with supporters.  Denver police pulled Smith away and held him in handcuffs for five hours.  Peter Smith now faces misdemeanor charges of throwing a missile, creating a disturbance, and an unlawful act on school property.  If convicted, Smith might face up to a year in prison and up to $1,000 in fines.  To date, he remains the sole glitter-bomber to be charged with a crime.

Nick Espinosa, the Minnesota protester who conducted the first glitter-bombing of Tim Pawlenty, and later glitter-bombed Mitt Romney and Newt Gingrich in that state, has also expressed his ire by throwing more solid, potentially-injurious objects.  At a campaign event in 2010 Republican gubernatorial Tom Emmer proposed new minimum wage laws to make servers’ tips count against their minimum wage, and Espinosa threw a bag of pennies at the candidate.  If you watch the video, Emmer appeared to be visibly fearful of the objects hurtling towards him.  After all, if thrown with sufficient velocity at someone’s face, pennies can cause serious injury.

Though it might seem harmless, a person could possibly suffer significant bodily injury from a glitter bomb.  According to optometrist Stephen Glasser, “If it gets into the eyes, the best scenario is it can irritate, it can scratch.  Worst scenario is it can actually create a cut.  As the person blinks, it moves the glitter across the eye and can actually scratch the cornea.”

Likewise, it makes sense for the law to prohibit persons from throwing objects at others, especially public figures and candidates for elected office.  In a nation with a long history of assassinations and assassination attempts, it is clearly in the public interest to discourage people from throwing objects at political figures.  In the split seconds between a protestor flinging glitter and confetti at a presidential candidate and it making contact with the candidate’s suit, it is difficult for the recipient to discern whether it is a serious attempt on their life or just a prank.

Conversely, the fact of the matter is that glitter is not a deadly weapon - it is just many little pieces of lightweight plastic.  When all is said and done, the worst that a glitter-bombing victim has suffered is the annoyance of having to brush pieces of glitter from their hair and suit jacket.  In a time of cash-strapped state budgets and overcrowded prisons, prosecuting a glitter-bomber with criminal charges might be an abject waste of prosecutorial resources.  Moreover, no aspiring Commanders in Chief who might one day have to deal with ballistic missiles from North Korea or Iran would want to appear petty or emasculated by testifying at the criminal trial of a glitter-bomber.

When Espinosa glitter-bombed Gingrich at a book signing in May 2011, Gingrich reportedly smiled as he brushed glitter and confetti from the table and muttered, “[n]ice to live in a free country.”

(Originally posted in the WCL Criminal Law Brief Blog)

The Most Fabulous Way to Stimulate the Economy

What would you say if I told you that New York State lawmakers could amend a certain legal regulation in a way that would stimulate additional consumer spending, foster more sales opportunities for small businesses and create thousands of new jobs? What if I told you that this policy would not add a dime to the deficit; in fact, all of the sales tax on the resultant commerce, additional income tax revenue and processing fees for these new contracts would actually help state and local governments balance their budgets? According to any credible economic analysis, this policy would only foster business growth so benign that it is almost inconceivable that it could lead to negative externalities in health, the environment, culture or anything at all.

What is this miracle policy of which I speak? What could possibly put some spring into the step of this dreary, moribund economy? Well, when people think of ways for the government to prime the pump, they usually imagine burly construction workers re-paving the highway. But we should also think of the police officer who got to keep his job thanks to the Recovery Act, the sailor who is bravely serving his country in the US Navy, and also the cowboy, the Native American and the motorcycling leather daddy…

This economic miracle policy I’m talking about, of course, is legalizing same-sex marriage. Nowadays even those with money to spare are so afraid of the market that they are just sitting on it in the bank; but if there’s ever a time to splurge, wouldn’t it be when your daughter has fallen madly in love with the perfect woman and you want to give her the wedding of her dreams? ...and if your son wanted to marry someone else’s son, wouldn’t you do the same? Some people have been waiting to be able to do this their entire lives.

In this time of economic crisis let’s forget for a moment about the Equal Protection Clause of the Fourteenth Amendment or the sexual ethics expounded by the Book of Leviticus and think about marriage solely in terms of dollars and cents. The average wedding in New York State costs around $32,000 – but in New York City where all goods and services are more expensive the figure is nearer to $37,000. However, the average wedding ceremony between two men or two women in New York State will most likely cost significantly less – circa $27,000 – largely due to the facts that 1) same-sex couples are less likely to receive support from their parents to pay for their weddings; and 2) same sex couples are more likely than opposite-sex couples to opt for no-frills City Hall marriages.

But even with the most conservative estimate that accepts continued social discrimination as a given, each and every additional marriage will nonetheless serve as a micro-level stimulus package. If the New York state legislature were to act this spring to modernize our discriminatory marriage laws, then the summer and autumn of 2011 could be punctuated by tens of thousands of additional weddings and a wave of additional commerce from Montauk to Buffalo.

At the very least, marriage equality would trim the budget deficit by adding revenues. For all of those couples who simply want to get it over with and get a City Hall marriage, in New York City it will cost them $35 for a marriage license payable to the Office of the City Clerk. Everyone who lives outside the five boroughs who wants to have a marriage certificate will have to make a credit card deduction, money order or write a $30 check payable to the New York State Department of Public Health, they will also have to pay for a $7.25 vendor processing fee, $15 for priority mail postage, and if they opt for next-day shipping the married couple would pay for an additional UPS fee of $12. With every marriage license issued, New York State would receive a bit more revenue to help mitigate our $10 billion budget shortfall.

Though it would be fair to say that a fair number of New York’s gays and lesbians and bisexuals and transsexuals would probably go for something more extravagant than a mere City Hall wedding… Seriously, if you’ve ever attended a Long Island bat mitzvah, just imagine how opulent Long Island gay marriages will be! Legalizing same-sex marriage will open the floodgates to the greatest, gayest shopping spree that New York has ever seen!


For starters, marriage usually starts with a proposal – and an engagement ring usually costs around $3,125. Jewelers will be so inundated with orders that there would be increased demand for every precious gem on the market – as well as the labor of goldsmiths, silversmiths and diamond cutters. Though the Hasidic diamond dealers of 47th Street might be amongst the most vociferous opponents of marriage equality, they would be amongst the greatest financial beneficiaries!

Then with time most of these same-sex fiancées are going to buy wedding bands and the jewelry industry would surge again (according to The Wedding Report, the average American wedding entails $3,631 of spending on jewelry for the day of the marriage ceremony).

For anything more elaborate, they are going to hire a wedding planner for $1,940…

Wedding announcements, invitations, reply cards and thank-you notes on personalized stationary will cost $1,117…

Your average marrying couple will spend $345 on hair styling, facials, makeup and spa treatment…

The best man or bridesmaid will throw down an average of $2,189 on the bachelor/bachelorette party…

The grooms will spend about $1,858 on their tuxedos…

Or the brides will spend $1,858 on their dresses…


…or the brides will spend $1,858 on their tuxedoes…

…or the grooms will spend about $1,858 on their dresses…

The sartorial possibilities are endless, and any permutation of bow-ties, tiaras, corsets and cummerbunds that the marrying couples, best men, bridesmaids and guests would buy would nevertheless serve as the greatest one-time boon to the high-end fashion industry that New York has ever seen!

Marrying couples typically spend around $2,036 on the ceremony itself; i.e. renting the location, hiring an officiate, paying for an aisle runner, a pillow box and a ketubah, etc…

They will spend an average of $1,276 on flowers and décor…

The big ticket item, however, is almost invariably the wedding reception – which costs an average of $11,863. Can you even imagine how many more job openings would be created for caterers, chefs, waitresses, busboys and bartenders?

More demand would be created for bakers as well, as the brides or grooms spend $469 on each wedding cake…

…$1,244 on limousine and chauffeurs…

… and of course a honeymoon, which usually rings up to a total of $5,027 (though chances are the bulk of this money would stimulate the economy of Puerto Rico or the Virgin Islands – not New York)

Subsequent growth in consumer spending would not be confined to the brides and grooms and their families. According to the Association of Bridal Consultants, married couples receive an average of 75 gifts and that the average amount of money spent on each wedding gift is $113. So for every time that a pair of men or a pair of women marry in New York, they will spur their guests to go out and spend approximately $8,475 on gifts that might have otherwise just sat in the bank and accumulated infinitesimal interest.

Out of town wedding guests are going to stay in New York hotels, and even if they are going to stay with friends for the weekend they are probably going to go out with their hosts to a restaurant on Friday night or at least stop at the liquor store and buy them a bottle of wine. No matter how you crunch the numbers, marriage equality is going to encourage people – and especially people from out of state – to go out and spend more of their money on New York goods and services.

Of course, we do not know exactly how many same-sex couples there are living together in New York because the 2010 Census which is still being tabulated was only the first census since Massachusetts’ landmark Goodridge decision in 2004, and this data only counts same-sex couples who are already legally married – thus providing an incomplete picture of how many same-sex couples there are who would be married if New York amended its family law code. So in the absence of more sound Census methodology the best we can do is refer to scientific estimates; according to a study by the Williams Institute, as of 2005 there were approximately 50,854 gay and lesbian couples living together in New York State.

However, that does not mean that legalizing same-sex marriage in New York State would necessarily result in exactly 50,854 weddings. Approximately 43 percent of those couples – 21,867 of them – have already married somewhere else. Since 2005 the population of same-sex couples has certainly risen. And there are of course a good number of couples who would prefer to marry in some other jurisdiction, to simply apply for a domestic partnership, or to not marry at all. The Office of the New York City Comptroller estimates that – based on the experience of Massachusetts – roughly 51 percent of the remaining nubile 28,987 couples would marry over the first three years after marriage equality has been achieved; in other words, around 14,783 New York resident couples would marry. After that initial surge, the rate of same-sex marriages would probably taper off significantly and eventually achieve something close to parity with the rate of opposite-sex marriages. According to the NYC Comptroller, resident weddings would generate almost $110 million in additional consumer spending over those first three years…

…and that’s only taking into consideration New York State residents; based on the experience of other states, the big money maker would be in out-of-state residents who would come from all across the country and all around the world to have their weddings in tolerant and accepting New York. The NYC Comptroller’s Office estimates that in the first three years of marriage equality, more than 56,000 couples would travel from out of state to marry in New York. Keep in mind that New York State law requires a minimum of 24 hours between the issuance of a marriage license and the performance of a wedding ceremony, so out-of-state residents would either have to make two day trips or (much more likely) stay overnight. Even the estimated 6,845 couples from mostly New Jersey, Pennsylvania and Connecticut who simply drive across the border for two day trips would bring in an additional $1 million. But those who come all the way from Florida, Texas, Japan or South Korea for destination weddings would spend almost $60 million, their guests would spend another $77 million on transportation, lodging, etc.

When you put it all together; New York residents, cross-border commuters and out of state same-sex marriage tourists would generate an additional $247 million in additional economic activity over the next three years – $175 million in New York City alone. We can only speculate as to how much long-term job creation this boom would generate; most likely, most of the additional business would probably be picked up by already-existing florists, bakers, DJs, etc. Though based on the experience of other states, the legalization of same-sex marriage would probably create a few thousand additional jobs mainly in the labor-intensive hospitality and catering businesses. But the sheer amount of consumer spending and job growth alone does not tell the whole story; for a more clear view of marriage equality’s effect on the public treasury we have to crunch those numbers a bit further.

When economists calculate the value of public policy they use the tool of cost-benefit analysis; and even the most liberal proponent of civil rights must concede that there are economic costs to granting marriage rights to gays and lesbians. Namely, firms that offer spousal and family benefits to their employees would be compelled to extend health care benefits to the spouses of their newly-married employees. The study by the Comptroller’s Office estimates that all of the same-sex married couples with one member working for a firm in New York State would cost their employers an additional $63 million in health insurance costs. However, this causes little reason to fear that businesses would flee to other states with discriminatory marriage laws in order to save on human resources; that $63 million in health benefits would be spread fairly evenly across more than 500,000 firms, unless a given business employs a disproportionate amount of nubile homosexuals then their burden would be comparatively negligible, and most small businesses would not be affected at all. In fact, most Fortune 500 companies located in New York – including Bank of America, Goldman Sachs, Morgan Stanley, American Express, Chase, MetLife, Citigroup, Bloomberg LP, Time Warner, Barnes & Noble, Eastman Kodak, to name a few – already offer health benefits to the same-sex domestic partners of their employees.

From the perspective of public finance, marriage equality would not generate any additional health care costs because New York State and City agencies are already required to offer health care benefits to the same-sex domestic partners of public employees. If anything, the public sector would actually save on means-tested programs because many newlywed couples’ combined income or assets would bring them above the income and asset thresholds for many social welfare programs; e.g. the Temporary Assistance for Needy Families and Safety Net Assistance programs, child care subsidies, earned income tax credits, etc. For a good number of people the legal act of marriage per se serves as a catalyst for movement from the class of welfare recipients to taxpaying contributors to the public treasury.

Following that same line of reasoning, marriage equality would in fact lead to a windfall in public revenues. Marriage licensing application fees – 50,458 applications for $35 in New York City and 32,012 applications for $40 elsewhere in New York State – would total $3 million in additional revenue. Sales taxes on all of the aforementioned wedding expenditures would add $4.3 million to City revenues and another $5.5 million to the State. With all the out of state destination weddings expected to be held in the five boroughs (i.e. Manhattan) the City would also collect an additional $767,000 in Hotel Occupancy Tax revenue. If the New York legislature changed the tax code so that same-sex married couples could file their tax returns jointly, so many couples would incur the so-called “marriage penalty” by moving to a higher income tax bracket that New York State would collect $2.1 million in additional income taxes. So it would be fair to assume that New York City would be able to balance its budget with $5.1 million and New York State would be able to plug its gaping deficit with $10.6 million in additional revenues over the next three years. Perhaps if homeownership rises for married same-sex couples, the government might even take in more revenue from property taxes and related real estate transaction-related taxes (though this is purely speculative); if this is the case, New York’s gaping deficit could be trimmed even further.

For a state to maintain discriminatory marriage laws is to practice fiscal insanity – they’re leaving money on the table. Though what we’re currently doing in New York is even more self-defeating; in 2004, then-Attorney General Eliot Spitzer responded to the flurry of gay marriages in Massachusetts, San Francisco and New Paltz by issuing a memorandum stating that New York – though we do not issue marriage licenses to same-sex couples – would give full faith and credit to the same-sex marriages issued by other jurisdictions. From the perspective of social justice, this might be a pragmatic step in the right direction, but from the perspective of economics it’s the worst policy imaginable as it assumes all of the costs but reaps very few of the benefits. Suppose there is a lesbian couple from Schenectady composed of a pharmacy worker and her unemployed wife and they decide to get married in Northampton; they might add to the health insurance costs borne by New York businesses, but all of the economic activity and tax revenue generated by their wedding would be enjoyed by the Commonwealth of Massachusetts. In other words, New York is exporting our gay marriage jobs to Massachusetts, Connecticut, Vermont, New Hampshire, Iowa, the District of Columbia, all ten provinces and three territories of Canada, Mexico City, Argentina, Spain, Portugal, the Netherlands, Belgium, Iceland, Norway, Sweden and South Africa.

Civil unions – another modest half-step towards social justice – are even more limited in their economic stimulus potential. In New Jersey, Illinois, Rhode Island, Delaware and Hawaii where the state issues civil union licenses to same-sex couples, businesses pay ever so slightly more in health insurance costs. But the wedding planners, hoteliers, caterers, florists and diamond cutters of these states have experienced only minimal business growth because hardly anyone throws down $37,000 to celebrate their daughter’s civil union – filing for domestic partnership feels as special as a trip to the DMV.

Likewise, it seems that the only way for a state to reach the maximum fiscal benefit is to establish complete and utter marriage equality under law. When the Comptroller’s Office did its cost-benefit analysis of legalizing same-sex marriages, they calculated that the government of New York State would come out of the red by collecting roughly $8 million in more taxes and saving $100 million on welfare programs, while the City would collect an additional $7 million in taxes and fees and have only negligible fluctuations in spending on anything at all. And though the health insurance costs and the benefits of additional sales will for the most part be paid by different firms, the private sector as a whole would grow on a net basis by $184 million throughout New York State with $142 million of that economic growth in the City.

Marriage equality should also make the New York economy more competitive in the long run by keeping our state among the forefront of social progress. Let’s say that the Acme Widget Company of Des Moines is planning on expanding to the East Coast and has to decide between two potential sites for their new bureau; one in Albany and the other in Hartford. The board of directors might reason that, ceteris paribus, it would be in their best interests to open the new bureau in Hartford because a lot of gay people would prefer to live in a state where they can raise a family, and Connecticut’s inclusive marriage laws might help them to attract a more competitive pool of employees. The most well-dressed, highly productive members of the labor force want to live and work in a state where the law treats them as first-class citizens – why wouldn’t we do everything we can to make them want to live and do business in New York?

The fact of the matter is that gay families are great for the economy; they’re hip, they’re ahead of so many market trends, they are more likely to have two incomes and less likely to have children – and when they do have kids, it kind of has to be the result of a thoroughly-planned, well-thought decision. Families headed by same-sex couples are more likely to pay taxes for schools and less likely to have kids to send to them - but when they do, wouldn't you imagine they would be the most meticulous parents?

To put it more blunty, it is in the direct financial interest of every state, county and municipal government with revenues dependent upon property taxes to attract families with two moms and two dads, because when gay people move into a neighborhood the value of real estate rises. If you’ve ever been to Hudson, New York, you would see before your eyes how an influx of gay antiques dealers, innkeepers and restaurateurs took a rusting, depressed Upstate town and gave it a makeover into a relatively-booming Mecca for weekenders and gentlewomen farmers!


So when the the New York State Senate takes up the same-sex marriage bill, do they really want to take this opportunity to uphold our state's long proud history of welcoming immigrants of all cultures, stripes and hues, upholding the rights of refugees who fled violence and repression... and, by the way, effortlessly improve the state's fiscal standing?

Or will they reject it out of some combination of bigotry, malice or cowardice?
After almost every state in the region has steadily progressed towards marriage equality, do they want New York to be the state that balked under pressure from the Paladino Republicans and the "Christian values" wing of the Dixiecrats? What Grinch of a statesman wakes up, puts on a suite and tie, and stands up before the body public to say "Actually, I object to these tens of thousands of New Yorkers from wedding"? If lawmakers in Albany won't welcome their sisters and brothers in the very state that invented Liberation, they’re going to settle down in Massachusetts or Connecticut and take their money with them.


Unfortunately, the numbers don’t evince that legalizing same-sex marriage could be the silver bullet which singlehandedly digs this state us out of this deep recession; to do that, we might have to end the war in Afghanistan, curb the cost of health care by establishing a public option, invest $800 billion into modernizing our energy infrastructure, shift the tax burden from the wages of the working class to the estates, trusts and dividends of the super-rich, found a market for carbon permits, abolish mandatory minimum sentencing and legalize marijuana…

Nevertheless, even if legalizing same-sex marriage would only promise to increase the New York state private sector by roughly $184 million in additional commerce, cut the state deficit by $108 million and create roughly 2,000 additional full-time jobs, that sounds to me like a substantial first step towards economic recovery. Legalizing same-sex marriage might not be more than a modest reform, it might not be the superlatively most comprehensive strategy to vitalize business growth – but you must admit that it would certainly be the most fabulous way to stimulate the economy.