Spitzer's interpretation of the legislature's intent is probably right. The comments to this post illustrate the creative ways in which imprecise language can be construed. As is often the case, the language of New York's law is open to interpretation. Still, given the number of present day politicians eager to disavow support of same sex marriage, it is difficult to believe that statutory language authored many years ago was meant to hold open the possibility of gay marriage.

Spitzer won't say whether he thinks the law is consistent with the state constitution. He says it is his job to uphold the law, not to question it. True, but the state constitution is part of the law. He has presumably sworn an oath to uphold that constitution. Failing to call attention to an unconstitutional statute seems inconsistent with that oath.

The point is, New York law may or may not be constitutional. Mayor West is an elected official. His job is to serve his constituents. If Mayor West holds a good faith belief that a law limiting the availability of marriage (or of marriage licenses) to opposite sex couples is unconstitutional, and if he believes that he lawfully carries out the duties of his office by peforming same sex marriages, he shouldn't be arrested for acting on that belief.

Law enforcement officers and other government officials who violate an individual's civil rights are immune from damages, even if a court finds that a violation occurred, unless their actions disregarded clearly established law. Rulings in Massachusetts have created uncertainty in the law elsewhere. If we protect government officials from civil suits when they exercise their discretion in the face of ambiguity, it makes no sense to subject them to criminal prosecution when they do so.