Democratic presidential candidate Michael Bloomberg on the campaign trail likes to talk about his early support for same-sex marriage and push for New York State to legalize gay nuptials in 2011, but one aspect of his record he doesn’t mention is his veto in the years before that time of domestic partner benefits for LGBTQ workers.
In 2004, Bloomberg as former New York City mayor, vetoed a measure approved by the New York City Council known as the Equal Benefits Law, which would have required businesses receiving $100,000 in annual city contracts to provide partner benefits, including health and pension benefits, to its LGBTQ employees.
Although the council voted to override his veto, Bloomberg sued to block the measure in court, citing interference with his authority as mayor, state law for municipalities and federal law for worker benefits. A judge refused to grant Bloomberg a temporary restraining order, but he nonetheless refused to enforce it. In 2006, when the case against the measure made its way to the New York State Court of Appeals, Bloomberg won.
At a time when same-sex couples are free to marry nationwide thanks to the 2015 decision by the U.S. Supreme Court in Obergefell v. Hodges, the idea of domestic partner benefits may seem quaint and insufficient, especially when they’d only be required for businesses doing $100,000 a year in contracts from New York City. But in 2004, when Massachusetts was the only state in the union to allow same-sex marriage and public sentiment was largely against gay nuptials, partner benefits were seen as a modest, but achievable, way to afford protections to LGBTQ families.
Carmen Vasquez, a now retired LGBTQ activist who at the time was deputy director of the Empire State Pride Agenda, told the Washington Blade Wednesday that Bloomberg’s veto of domestic partnership was “just dumb on his part.”
“It reflected poorly on his capacity to understand what the LGBT community was about,” Vasquez added.
Vasquez said Bloomberg overall was a “mixed bag,” citing positive moves of gun control, environment and the arts, but also “blind spots” on race, such as the “stop and frisk” policy for which Bloomberg has apologized since announcing his run for president.
Bloomberg’s veto of domestic partner benefits, Vasquez said, was “a big blow to the LGBT community” and spurred the decision to move forward with a larger statewide effort to legalize same-sex marriage in New York, which happened in 2011.
For context in 2004, the public perception on domestic partners was far more favorable than the idea of same-sex marriage. At least one other candidate for the Democratic presidential nomination had acted in support of them many years before that time. In 1992, Joseph Biden as U.S. senator voted against an amendment to appropriations legislation that would have overturned domestic partnerships in D.C.
Bloomberg is facing renewed scrutiny on his LGBTQ record in the aftermath of a two recently unearthed in which he made derisive comments about transgender people. In a 2016 video, Bloomberg referred to a trans woman as a “man in a dress,” and, as first reported by Buzzfeed News, Bloomberg in a 2019 video referred to a trans person as “it” and blamed transgender people for Democratic losses in 2016.
A Bloomberg campaign spokesperson responded to the 2004 veto of domestic partner benefits by saying the mayor had concerns the measure conflicted with state and local laws.
“Mike has been an advocate for LGBTQ+ equality throughout his public life,” the spokesperson said. “While Mike has been consistent in his belief that same-sex partners should have equal rights, in this case, he did not think the policy would advance this goal, because it would conflict with federal and state laws.”
Bloomberg had subsequently worked to expand benefits for LGBTQ workers, including partner benefits through a 2005 executive order, the campaign spokesperson said.
“As mayor, Mike worked to expand benefits and health care equality for domestic partners,” the spokesperson said. “In 2005, he secured health care benefits for domestic partners through executive order. He supported marriage equality in 2005 long before many elected officials in either party. As president Mike will pass the Equality Act and will take executive action to ensure equal benefits and protections for LGBTQ+ federal government employees, as well as employees of firms that do business with the federal government.”
Executive Order 72, which Bloomberg signed in 2005, required city vendors to report whether they offered health care coverage on an equal basis to the spouses and domestic partners of those employees, but made no requirement they did so as the city council ordinance did.
At the time of the veto, Matt Foreman, then-executive director of what is now the National LGBTQ Task Force, was so indignant over Bloomberg’s veto he resigned his post on New York City’s Commission of Human Rights — a role to which Bloomberg appointed him.
In a report from Gay City News in 2004, Foreman was quoted as lambasting Bloomberg, going so far as to say the former mayor may not have not ever seen a business contract with New York City.
“The City of New York has used its procurement power for decades to support social equality,” Foreman was quoted as saying. “I’m not sure the mayor has ever read a standard city contract. They contain pages of provisions requiring vendors to comply with the Human Rights Law, advance minorities and women and create a safe working environment.”
In his resignation letter to Bloomberg and Commission Chair Patricia Gatling, Foreman wrote, as reported by Gay City News, “Through its lawsuit, the administration is saying loudly and inexplicably that gay and lesbian families do no merit being part of this tradition [of promoting equity goals through contracting].” Foreman added “principle requires that I resign.”
Foreman, who’s now senior program director for gay and lesbian programs at the San Francisco-based Haas Jr. Foundation, didn’t dispute the 2004 quote in Gay City News when speaking with the Blade and acknowledged he resigned his position on the Human Rights Commission, but said there’s more to the story.
In the fall of 2005, Foreman said he received a phone call from Bloomberg, who explained his position against the council’s measure and urged him to rejoin the commission.
“He went over his objections to the ordinance (which were that it gave an unfair advantage to companies outside the city) and the steps he had taken to get more companies doing business with the city to offer domestic partner benefits,” Foreman told the Blade. “That included requiring all companies to publicly disclose whether they provided DP benefits to their employees and persuading some of the city’s largest health care insurance companies to start offering benefits at affordable rates. He was emphatic with me that he wanted gay couples to get equal benefits and thought the then-current situation was very unjust.”
Foreman told the Blade after listening to Bloomberg, he agreed to be reappointed to the commission and served until April 2008, when he left the Task Force to move to California.
“I don’t think the 2004 veto says anything about Mr. Bloomberg’s views on LGBT equality,” added Foreman, who said he hasn’t endorsed a candidate in the primary. “His actions since then confirm he’s a solid ally.”
At the end of the day, the New York State Court of Appeals — the highest state court in New York State — determined in 2006 Bloomberg was correct in refusing to enforce the measure, despite being unsuccessful in obtaining a restraining order, because the ordinance was “preempted by state and federal statutes.”
Writing the majority opinion in the decision in the case of Council of the City of New York v. Bloomberg was New York State Court of Appeals Associate Judge Robert Smith, who determined the measure conflicted with Bloomberg’s authority as mayor under the city charter, state municipal law for contracting rules and the federal Employee Retirement Income Security Act, or ERISA, which sets rules for health and retirement plans in the private industry.
“We have no doubt that the Equal Benefits Law is a good faith effort to make contractors treat the domestic partners of employees in a way that the Council considers fair,” Smith wrote. “But the competitive bidding statute reflects a judgment by the State Legislature that, to avoid among other things the risk of favoritism, municipalities must give business to the lowest responsible bidder, whether the bidder’s benefit plans meet the municipality’s idea of fairness or not.”
With regard to ERISA, the council had argued the benefits measure didn’t require certain business provide certain benefits, which would have been prohibited under federal law. That didn’t fly with Smith, who said the argument is “inconsistent with United States Court precedent” in the case of Boston Harbor v. Gould, which addressed unfair labor practices.
“The Equal Benefits Law, as its name implies, is designed to induce contractors to treat domestic partners and spouses equally, just as the Wisconsin statute in Gould was designed to induce contractors to avoid unfair labor practices,” Smith wrote. “Thus the market participant exception does not apply here, and the Equal Benefits Law, except to the extent that the benefits it governs are not provided through ERISA plans, is preempted by ERISA.”
The Court of Appeals ruling affirmed the appellate division’s dismissal of proceeding brought by the New York City Council to compel enforcement of the law.
Dissenting from the majority was then-Court of Appeals Associate Judge Albert Rosenblatt, who determined as a matter of separation of powers Bloomberg should have enforced the law after failing to obtain a restraining order because “it is the job of the legislative branch to enact laws and the executive to carry them out.”
Rosenblatt, however, declined to make a conclusion was unlawful or not under the constraints of federal and state law. Although the council maintained the measure would work because it was at minimal cost to contractors, additional evidence was needed.
“Expert testimony would be sought, hearings transcripts would be studied, credibility judgments would be made,” Rosenblatt wrote. “Supreme Court would be able to consider the extent to which factual matters were rationally controverted in reaching a conclusion about whether summary judgment was warranted. It would do so with all facts viewed in the light most favorable to the nonmoving City Council.”
Art Leonard, a professor of labor and employment law at New York Law School and editor of LGBT Law Notes,” said despite the court’s conclusion “issues of ERISA preemption and state preemption of a city ordinance are complicated, and debatable,” adding Bloomberg had more options.
“I think had Bloomberg enforced the law, he would have been sued by potential city contractors and the case would probably have ended up the same as it did, but in the meantime perhaps some employees of contractors would have enjoyed the benefits for their partners and children,” Leonard said. “I don’t know what was in Bloomberg’s heart — whether the legal argument was a pretext to deny benefits — but I would have said that in light of the difficulties of predicting how a court would resolve the preemption question, it would have been more politic for him to enforce the ordinance and have the city defend it in court if a contractor sued.”
Leonard compared Bloomberg’s veto of the domestic partnership measure to his appeal of a trial judge decision in Manhattan ruling in favor of marriage equality, which he said “inspired considerable ire.” The ruling was later overturned by the New York Appellate Division and the Court of Appeals.
“When he decided he was right about an issue, my recollection is that he was pretty much impervious to contrary argument,” Leonard concluded. “In that sense, of course, he bears a haunting resemblance to Trump along authoritarian lines.”
Christine Quinn, who as a former member of the city council, was chief sponsor of the measure, recalls in her 2013 book, “With Patience & Fortitude,” trying to model the New York City ordinance on a San Francisco measure and her disappointment when the New York Court of Appeals ruled against it.
“The point of that bill — for which I was the lead sponsor — was to get benefits for domestic partners; but even more important, it would demonstrate that we in city government had pushed the envelope as far as we could in recognizing gay families,” Quinn wrote. “We did everything to support the bill, from lobbying members of the City Council and community organizing to organizing businesses.”
Although Quinn conceded Bloomberg was justified in his reasoning, she concludes the court ruling against the measure was a “big defeat.” (The Blade reached out to Quinn for this article, but she declined to comment.)
“The mayor’s office brought a lawsuit claiming that passage of the bill was a violation of the City Council’s powers, because we don’t have power over contracts, which is actually true,” Quinn wrote. “Mayor Bloomberg didn’t disagree with the content of the bill, but he thought the City Council had overstepped its legislative authority. We had tried to be creative about how we wrote the legislation, doing it in a way that threaded the needle, but the court didn’t agree, and we lost. It was a big defeat.”
In subsequent years, Bloomberg as mayor of New York City would become a prominent voice in the fight to legalize same-sex marriage, advocating for it at the time of a failed vote on the Senate floor in 2009 and ultimately success in 2011. In subsequent years, Bloomberg would sign friend-of-the court briefs urging the U.S. Supreme Court to overturn the anti-gay Defense of Marriage Act in 2013 and rule in favor same-sex marriage nationwide in 2015.
At a Washington news conference last month announcing D.C. Mayor Muriel Bowser’s endorsement of his candidacy, Bloomberg said he had an “impeccable” record on LGBTQ rights and told the Blade his early support for same-sex marriage makes him stand from other competitors for the Democratic presidential nomination.
“Well just to address that one community, my recollection is…I went and got the Republican Senate of the State of New York as well as the Democratic House to pass a law permitting gay marriage in New York long before anybody else that I know who’s running for office ever even thought about it or certainly said anything about it,” Bloomberg said.
Foreman, speaking with the Blade, said Bloomberg’s later support for marriage equality is a perfect example of allowing public figures the opportunity to evolve on their views on LGBTQ rights.
“I’m starting my 41st year of essentially full-time work in the LGBT movement, 30 of them paid (yes, I’m unbelievably fortunate),” Foreman said. “What I’ve learned is that no elected official is perfect on our issues, that forward movement should be welcomed, and what counts most is actually getting things done for our people. Therefore, it would have been hypocritical and unproductive for me to have been locked in place when Mayor Bloomberg was doing the right things then. I’ve seen no evidence of backsliding since, just the opposite.”