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Challenging Marriage Equality: The Case of Conservatives v. Albany

BY ARI EZRA WALDMAN

In the many glorious days since the passage of the Marriage Equality Act in New York, there have been more than a few marriages, even more engagements, and the world kept ticking. Conservatives, of course, dislike this. But, there is precious little they can do. Same-sex marriage polls overwhelmingly well among New Yorkers, the state's Democratic majority is firmly behind marriage equality, and they are supported by quite a few wealthy, influential Republicans (read: Bloomberg, Grisanti, Alesi, Saland, and McDonald). Any fight against the substance of the Marriage Equality Act risks marginalizing an already weak Republican Party from voters in deep blue New York.

NycfBut, let no one say that our anti-gay forces are not resourceful. Faced with a citizenry that supports same-sex marriage, conservatives instead turned to New Yorkers' greatest bogeyman: Albany. This week, a New York State judge ruled that a state legal challenge to the Marriage Equality Act -- based on the supposedly Machiavellian procedure by which it was enacted -- can proceed to the next stage. That is not to say that this challenge will be successful; in fact, the judge was pretty sanguine pessimistic about the suit's prospects for success. However, it is worth discussing what this case is about, why it lacks merit, and how it shows the utter desperation of the anti-gay right.

CONTINUED, AFTER THE JUMP...

An anti-group, misleadingly named "New Yorkers for Constitutional Freedoms," sued to invalidate the Marriage Equality Law in New York because in passing and signing the law, the state legislature and the governor violated state law. The group has two arguments:

CuomoFirst, Article III, Section 14 of the state constitution requires that all bills under consideration be held for three days before any vote. The only exception is when the governor certifies specific facts that require the legislature to act immediately. In the case of the Marriage Equality Act, Governor Cuomo did certify such facts, but the judge called that certification plainly "disingenuous." The plaintiffs argued that the the Governor's reasons -- that continued discrimination against gay couples mandates immediate action -- is illogical, especially given that gays have been excluded from the institution of marriage for hundreds of years already.

Second, Article III, Section 10 of the state constitution requires that legislative sessions be kept open to the public unless deliberations require secrecy for the benefit of the public welfare. The lawsuit argues that secret negotiations with Republicans, a closed chamber, and other secret meetings aimed at getting the law passed violated this open meeting requirement.

The arguments' merits were not discussed in this decision. In fact, the judge belied his occasional sarcastic and sharp distaste for Albany's shenanigans by suggesting that his hands are tied to accept the Governor's supposedly "disingenuous" certification and by dismissing Attorney General Eric Schneiderman from the case entirely. At issue at this stage was the State's motion to dismiss, in which the State argued that the Governor's certification of immediacy and the fact that the full legislative chamber was indeed open to the public mean that there are neither issues of fact or law to be discussed further. The judge disagreed. He said he did not have enough information to decide the case in either party's favor, so he allowed the case to continue to the discovery phase.

Letting this lawsuit proceed is not a step back, but a slight detour. It is -- and should be -- hard to win a motion to dismiss. For a court to dismiss a lawsuit at this early stage is to declare that there is absolutely no issue to discuss. A judge has to take the facts alleged in the plaintiff's complaint as true, even if they are complete and utter lies, and decide if there is even a small issue to discuss further.

NyBut regardless of discovery and any further arguments, it is hard to imagine this lawsuit going anywhere. State law is explicitly clear that the Governor's certification of immediacy must list facts that require tossing the three day waiting period, but there are no restrictions on that certification. Courts have interpreted a specificity requirement and a good faith requirement, but the judge's view that continued anti-gay discrimination could not be sufficient is a simple disagreement of policy, not a basis on which to challenge the Governor's good faith. The essence of judging is to not replace legislative policy preferences with your own, so the judge will be hamstrung to do anything but accept the Governor's call for waiving the three day delay. As for the second argument, some meetings were indeed private. But, the open meetings law does not explicitly require that every meeting of more than one person be open to every Joe, Tim, and Sally who's interested. Nor is it meant to uproot the entire legislative process. To invalidate one law on the grounds that some people conducted some closed door meetings would set a dangerous precedent that could invalidate nearly every law Albany passes, including every budget since the 1950s, the law that sent computer money to certain public schools, and the law that named a state building after the Rev. Diaz.

Attacking Albany is a favorite New York political ploy. Albany is "broken," "deadlocked," "dominated by elitists," "corrupt," "hopeless," and so on. Before the highly effective and moderate Governor Cuomo, Albany was a bastion of smoke-filled rooms and partisan bickering. So, attacking gay equality through the Albany lens is a good tactic. And, yet, it is a desperate one. The plaintiffs in this case are barely hiding their anti-gay rhetoric behind passionate sanctimony about the importance of public access to the legislative process, and they marshall arguments that have no hope of succeeding lest we overturn every New York State law since Andrew Cuomo was a baby. That is not going to happen.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. sanguine: cheerfully optimistic. I think you meant the opposite.

    Posted by: Ben | Nov 30, 2011 1:23:41 PM


  2. Thank you Mr. Waldman for this post, and all of your good reporting. One small point--sanguine means optomistic, and is often misused.

    Posted by: Jim | Nov 30, 2011 1:34:57 PM


  3. That was a very clear and coherent explanation of what is going on with this case. I feel much better about my own planned marriage in the spring. :-)

    Meanwhile, anti-marriage bigots are the same people who are fighting tooth and nail to keep donors names secret? They have the nerve to demand more transparency? The hypocrisy is absolutely stunning.

    Posted by: MT | Nov 30, 2011 2:02:34 PM


  4. Wow, I've not seen "smoke-filled rooms" used in many years. That probably reflects the effectiveness of indoor smoking bans in so many states. (Indeed, Schwarzeneggar had to set up a tent on the grounds of the Capitol building in Sacramento so that he could enjoy his cigars, and I'm sure that many dubious deals were made there.)

    But on a more important note, thank you for the effective analysis. The antigay forces will stop at nothing, but at least it's comforting to see their frustration and wasted money in bright light.

    Posted by: Paul R | Nov 30, 2011 2:12:32 PM


  5. Just to note, it seems pretty clear that the judge's intent was to dismiss the claim based on the supposedly inadequate message of necessity. So only the supposed open meetings law is at issue. It is an utterly preposterous issue, since the Open Meetings Law specifically provides that party caucus meetings are not covered, but the plaintiffs obviously knew what they were doing by bringing the case in a bumf*ck little county like Livingston.

    Posted by: Glenn | Nov 30, 2011 2:23:39 PM


  6. When the state courts find marriage equality in the state Constitution, conservatives yell “it’s an activist court legislating from the bench!”

    When the people’s elected legislature passes marriage equality into law, the conservatives run to same Court crying “save the Constitution!”

    No doubt when the first pro marriage equality referendum passes by a majority vote of the people, conservatives will run to the Court and legislature and try to reverse it.

    Its not that the legislature passed it, or the Court ruled on it, or even that the people voted for it that matters to conservatives, its just they find the whole thing icky.

    Posted by: dcinsider | Nov 30, 2011 2:56:11 PM


  7. There are two questions about the waiver of the 3-day rule:
    (1) Is the reason for a waiver EVER reviewable by a court, or is it solely for the Governor (and legislature) to decide?
    (2) If the reason is reviewable by a court, is the Governor's reason (continued discrimination) legitimate? On this second question, although the Governor has a fair amount of discretion, are there some bounds to it -- and what are they? For example, if the Governor said that waiver for some spending-cut bill was necessary to save the NYS government $5 per day ($5, not $5,000,000), would that be a legitimate reason for waiver?

    Note that in Arizona right now, the Republican Governor and Republican State Senate removed the independent head of the State Redistricting Commission for what they said was "unconstitutional and illegal actions". Basically, they impeached her (they thought the new districts she voted for were too Democratic, but they accused her of having non-public meetings and of using illegal standards to design the new districts!). She appealed to the Arizona Supreme Court, but the Governor said that the court has no role to play in removing a State Redistricting Commissioner because the Arizona Constitution mentions only a role for the Governor and State Senate in such a removal process. But the Arizona Supreme Court (thankfully) stepped in and said it is up to the court to decide what types of actions are impeachable, and the actions identified by the Republican Governor and Republican State Senate were not impeachable.

    Many people are happy for this Arizona court ruling -- but you can see the analogy in New York. The Governor and Legislature are telling the court that the "waiver" issue (just like an impeachment issue) is something the court cannot decide. But will the NY courts take that approach, or will they do (by analogy) what was done in Arizona -- namely, actually review the Governor's decision. If the NY courts do review it, then we need to hope that the Governor's reason for "waiver" (continued discrimination) is legitimate.

    Probably all too legalistic for most people, but a very important issue in NY and in many state on a whole range of 'political' issues!

    Posted by: MiddleoftheRoader | Nov 30, 2011 5:19:22 PM


  8. NOM needs to pick a new state to pick on. Even given the extremely unlikely chance that this law was overturned, the public atmosphere on this in NY now definitely leans on the side of pro-equality. Even if NOM was able to take it out of the hands and put it in to mere public popularity vote (which can't happen through NY law, unlike California's insane system), the anti-equality folks would likely lose these days. On the other hand, I don't mind NOM falling into a money pit of pointless shenanigans. Let the LDS and the Catholic hierarchy keep pouring their money down a well.

    Posted by: bobbyjoe | Nov 30, 2011 5:56:42 PM


  9. It will be 100 years before we win the fight for equality. As has been the case with the abortion issue, the opponents of marriage equality will not give up this fight. We can expect them to continue their attempts to undermine any forms of equality for GLBT citizens for many decades to come.

    Posted by: RWG | Dec 1, 2011 5:18:44 PM


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