Suit Against New York Gay Marriage Law May Proceed

By Julie Bolcer

Originally published on Advocate.com November 29 2011 1:00 PM ET

A lawsuit seeking to overturn the New York marriage equality law on the grounds that the legislature followed improper procedures in the days leading up to the vote may proceed, a state Supreme Court judge has decided.

In the decision issued November 18, Acting Livingston County state Supreme Court Judge Robert Wiggins found that New Yorkers for Constitutional Freedoms, which lobbied against that law that passed in June, could proceed with its suit, New Yorkers for Constitutional Freedoms v. New York State Senate. New York attorney general Eric Schneiderman, also named as a defendant in the case, had filed papers in court seeking to dismiss the suit.

The suit filed in July alleged improper activity in the days leading up the vote in the legislature. According to the complaint, among other actions, the Republican senate conference and elected officials including Governor Andrew Cuomo held meetings in violation of the state’s Open Meetings Laws, financial support was promised to win Republican votes, the bill bypassed senate committees, and the governor unjustifiably issued a message of necessity to expedite the vote and avoid the normal three-day waiting period for a bill.

In his decision, Judge Wiggins said that the plaintiffs, who are being represented by Christian conservative legal group Liberty Counsel, presented enough evidence that the Open Meetings Law may have been violated in order to allow the case to proceed. The plaintiffs allege that the meetings between the senate Republican caucus and the governor were not exempt from the law, which requires that meetings be open to the public, while the state argued the meetings were exempt.

"...The Court must consider allegations by Plaintiff as true,” wrote Wiggins. “Considering Plaintiff's allegations, and without deciding matter at this time, the Court feels that is a justiciable issue presented whether there was a violation of the Open Meetings Law."

Wiggins also addressed the allegation that Cuomo improperly issued a message of necessity to expedite a vote on the bill and avoid the normal three-day waiting period. In his message, the governor had cited the “long overdue” right of same-sex couples to enter into marriages in New York and the denial of “critical protections” to more than 50,000 couples caused by “continued delay” of the bill’s passage.

"Logically and clearly this cite by the Governor is disingenuous,” wrote Wiggins. “The review of such concept altering legislation for three days after generations of existing definitions would not so damage same-sex couples as to necessitate an avoidance of rules meant to ensure full review and discussion prior to any vote. Nonetheless, this Court is reluctantly obliged to rule that that the message of necessity submitted by the Governor was accepted by vote of the Senate, and is NOT within this Court's province to nullify."

While Wiggins did not rule on the legality of the issue, he bluntly criticized the governor for his interactions with the legislature, saying, “It is ironic that much of the state’s brief passionately spews sanctimonious verbiage on the separation of powers in the governmental branches, and clear arm-twisting by the Executive on the Legislative permeates this entire process.”

The Rev. Jason J. McGuire, New Yorkers for Constitutional Freedoms executive director and one of three plaintiffs named in the suit, hailed the decision, saying, "We have said all along that we look forward to our day in court. Now we will have it. The legality of our legislative process must be protected.”

The attorney general office's did not immediately respond to requests for comment, and a Cuomo spokesman declined to comment beyond previous remarks that dismissed the lawsuit as being “without merit” at the time of filing. Some analysts, moreover, have questioned whether the courts in New York would be willing to intervene in the independent affairs of the legislature.

New Yorkers for Constitutional Freedoms has fought vigorously against the marriage equality law in concert with other religious figures, including Rabbi Nathanial S. Leiter of Torah Jews for Decency, who is listed as a plaintiff in the lawsuit. New Yorkers for Constitutional Freedoms, with support from the Alliance Defense Fund, also launched the Courage Fund this summer to offer assistance to the handful of town clerks who have refused to issue marriage licenses to same-sex couples, most notably Rose Marie Belforti of Ledyard in upstate New York. The National Organization for Marriage also has supported the clerks.