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Why the NY anti-marriage equality lawsuit is likely to go nowhere

Marriage equality

This was inadvertently published at the wrong time, leading it to be buried below two posts published earlier today. Bumped up to the top -Adam

By Jacob Combs

Ari Ezra Waldman has a new piece at Towleroad examining last week’s decision by a New York judge to let a lawsuit against the state’s recently enacted marriage equality law go forward in court.  In case you missed it, a group of conservatives filed a lawsuit seeking to strike down this summer’s Marriage Equality Act on the grounds that the legislative process to pass it violated Senate rules and the state’s open meetings laws.  Specifically, they argue that Gov. Andrew Cuomo’s decision to forego the requisite three-day waiting period before a bill can be voted on as well as the fact that several meetings took place behind closed doors mean that the law was improperly enacted.

In his decision last week, Judge Robert Wiggins refused Attorney General Eric Schneiderman’s motion to dismiss the lawsuit and called the governor’s certification to waive the waiting period “disingenuous,” nevertheless observing that Governor’s reasoning was accepted by a vote of the Senate, and therefore not within the court’s jurisdiction to nullify.

In essence, the ruling is mostly procedural and only allows for the case to proceed to the discovery phase as opposed to making any definitive statement on the governor’s actions.  As Waldman points out, though, it’s unlikely the lawsuit will make any headway:

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 to the second claim regarding the open meetings law, the full legislative session in which the law was voted upon was indeed open (and followed live by many people both in the state and around the country, myself included).  Some of the meetings regarding the legislation were private, but it seems a stretch to argue that the law mandates that every meeting about a piece of specific legislation has to be public.

We’ll have more on the case as is goes through the system and (hopefully) when it meets an early end.


  • 1. Alan_Eckert  |  November 30, 2011 at 3:17 pm

    I love most of Waldman's pieces. They get to the meat of things and still allow room for debate.

  • 2. grod  |  November 30, 2011 at 3:21 pm

    In reading the decision by Judge Wiggins in which a number of administrative irregularities were considered, the judge only accepted one relating to Open Meeting law. It was dismissed in its entirety against the Attorney general The case that will proceed is that related to a meeting between the Governor and the Republicans Senators. Was it a caucus meeting with the governor as guest.

  • 3. Ronnie  |  November 30, 2011 at 3:47 pm

    Well isn't this interesting. A church that is really following the "traditional" marriage definition of marriage = 1white man & 1white woman.

    – Church Votes To Ban Interracial Couples After One Shows Up:

    – Kentucky church bans inter-racial couples ‘in the name of the greater unity’:

    (me) Religious freedom, that is what this is, right? RIGHT???!!! An interracial couple is "different" from a single race couple so it is not discrimination to treat different things different, right? RIGHT????!!!!! Except, they are not things, they are human beings. Just like LGBT couples are not things, we are human beings. NOBODY should be treated differently, doing so IS discrimination & un-American…… The Lovings are rolling over in their graves right now.

    Of course the church, & ONLY the church, has the first amendment right to turn away any couple they want, but don't play the "victim" card when you get called a bigot…….. People we are not in the 1960's anymore…. just saying…… not cool…..<3..Ronnie

  • 4. Fr. Bill  |  November 30, 2011 at 4:20 pm

    I believe in freedom of religion – they can believe what they like and make whatever rules they like (however, repulsive, un-Christian and bigoted) when it comes to running their church. However, this is not the "religious freedom" that Archbishop Dolan of NY and the U.S. Conference of Catholic bishops is talking about. No, they want such "sincerely held religious beliefs" to exempt individuals and religious organizations from complying with the civil laws passed by the state. So under his reasoning these religious people if they were town clerks could refuse to issue marriage licenses to inter-racial couples and a pious Catholic pharmacist could refuse to fill a prescription for birth-control pills.

    I think they are over-reaching and afraid of being labeled the bigots that they are.

  • 5. Nyx  |  November 30, 2011 at 8:53 pm

    Fr.Bill, what Dolan forgets is… "Render unto caesar the things which are caesar's, and unto god the things that are god's."

  • 6. MightyAcorn  |  November 30, 2011 at 5:09 pm

    Yeeeeaaaaah I'm not so sure the NOMbies want this case to go to discovery…because, you know, they'll probably end up having to disclose which politicians *they* met with in private and (possibly) "donated to" just before the vote. I think the premise of the suit is bollocks, just another spurious legal action that will be pimped for hysterics and fundraising, but they may ultimately end up being sorry their little provincial judge opened the door to discovery re: their political movements in New York. Just sayin'….

  • 7. be4marriage  |  November 30, 2011 at 9:09 pm

    While I'd like nothing better, I think the group filing the suit is different from NOM, so discovery won't reach them. It's scary how sneaky and underhanded those pretend christians can be.

  • 8. MightyAcorn  |  November 30, 2011 at 9:23 pm

    I know they're not directly identified as NOM– their shell game is called "New Yorkers for Freedom" or summat–but I'll betcha dollars to dingbats they have the same operational model and won't like having it laid open in the public record. I for one want to know exactly who shoveled their money at Ruben Diaz to oppose so strongly…as if I didn't have a general idea already.

  • 9. anonygrl  |  December 1, 2011 at 10:09 am

    Jason McGuire is, if you can believe it, the more impotent, smarmy, used car salesman version of Brian Brown. If you put the two of them next to each other, well, aside from the color of the suit, it would be easy to mistake them for each other. They are most certainly associated with each other, but technically separate organizations, so discovery won't touch NOM.

  • 10. Regan  |  December 1, 2011 at 8:00 am

    They think the vote should have gone through in public? This coming from the same sort of people who didn't want cameras and the public to be privy to Judge Walker's court on Proposition 8?

    The hypocrisy NEVER ends, does it?

  • 11. AnonyGrl  |  December 1, 2011 at 11:06 am

    It did go through in public. All votes in the NY State Senate do. They are arguing that private meetings between smaller groups of politicians should have been open to the public. It is rather insane. In those meetings, policy can be discussed, agreements can be reached, but voting cannot happen. Voting, which is the part required to be open, can only officially happen in an open session.

  • 12. AnonyGrl  |  December 1, 2011 at 10:59 am

    Part 1
    Legislative sessions during which it is possible to enact legislation, specifically, are required to be open. They are. And they were. Every session of the full senate is open to the public. I attended quite a few of those sessions over the course of the couple of weeks we were expecting the vote. A full session of the Senate is the ONLY place that legislation can actually be enacted… anything else, for instance the Republican caucus, is technically only a strategy session where they decide how they WILL vote in the later meeting that IS open to the public, and is NOT required to be an open meeting. NY4CF (if I may anacronymize them as such) makes no sense when they complain that they were not invited to speak to smaller groups of lawmakers when other people (such as Bloomberg or Cuomo) were, because those meetings are not required to BE open. To demand that the be would mean that no one could EVER have a meeting of two politicians privately, that any member of the public could insist on being there at any time at all. Ridiculous.

  • 13. AnonyGrl  |  December 1, 2011 at 10:59 am

    Part 2
    As to the Governor waiving the three day rule, there were very specific reasons for that. We were in the absolute very last day of the session, which had already extended a week longer than scheduled. The Republicans had held up the vote for days, and only just, that day, agreed on the language changes. Cuomo waived the three days so that the vote could come up the same day. Had he not done, the session would have had to be extended further, or the Republicans might have opted to not bring the bill to the floor, putting it off till the next legislative session. Cuomo certified that the matter was important and could not be put off any longer, which was well within his right to do. That NY4CF disagrees, or even that the judge does, makes no difference. The rule states it is the GOVERNOR'S opinion that matters in this case.

    The case is entirely spurious and the judge should have dismissed it.

  • 14. grod  |  December 1, 2011 at 1:00 pm

    AnonyGr l: In reading the decision by Judge Wiggins dealing with a number of administrative irregularities, the judge only accepted one relating to the Open Meeting law. The case that will proceed to the next level – disclosure – is related to a meeting between the Governor and the Republicans Senators. The question is "Was it a caucus meeting with the governor as guest". The Judge will expressing frustration with the waiving of the three day rule, observed that as the Senate voted, the Court would not pass judgments on the process. G

  • 15. AnonyGrl  |  December 1, 2011 at 1:51 pm

    Yes, you are correct. The three day rule issue has been denied.

    The way *I* read the law, and remember, I am SO not a lawyer, is that it is required that LEGISLATIVE sessions be open to the public, not every meeting where a law might be discussed. If all the Republicans sit down together with anyone, they cannot vote on a law. They can discuss. They can debate. They can strategize. They can decide how they will vote, but no actual voting takes place. I dunno. I may be oversimplifying things.


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