The Anti-Marriage Equality Lawsuit Filed in New York on July 25

On June 24, the New York State Legislature passed and Governor Andrew Cuomo signed into law the Marriage Equality Act of 2011 (MEA), which authorized marriages by same-sex couples while providing broad protections for religious dissenters.  The Act took effect 30 days later, on July 24 (a Sunday), when city and county clerk offices in many parts of the state specially opened to make it possible for same-sex couples — many of whom had been living as partners for many decades — to marry on the first possible date. 

On July 25, the sore losers in the legislative debate, anti-marriage equality lobbyists operating under the banner of a right-wing organization calling itself New Yorkers for Constitutional Freedoms, filed a lawsuit in Livingston County Supreme Court, alleging that the MEA was invalidly enacted.  They sued the State Senate, the State Department of Health (which administers the marriage licensing and recording process), and Attorney General Eric Schneiderman (in his official capacity).  The group describes itself in the complaint as "a statewide, issues-oriented, political lobbying organization committed to voicing the pro-life and pro-family perspective to New York staet elected officials." 

NYCF is represented by Liberty Counsel, a right-wing litigation group based in Lynchburg, Virginia, the home of the late Rev. Jerry Falwell's Liberty University.  Liberty Counsel specializes in bringing litigation to invalidate gay rights measures.  Their complaint is signed by Rena M. Lindevaldsen, one of their attorneys in Virginia.  Joseph P. Miller, an attorney practicing in Cuba, New York, is also listed on the complaint, presumably as "local counsel" to enable them to appear in a New York court.  Several individual officers of NYCF are also listed as plaintiffs.  The lawsuit was filed in Lancaster County, where NYCF's executive director, Jason J. McGuire, resides, and venue in that county is premised on his residence there.  (This is, of course, a transparent ploy to bring the case in a rural county with a conservative Republican bench — New York Supreme Court trial judges are elected. The more appropriate place to sue the legislature, a state agency, and the attorney general, would be in Albany County, where all the incidents described in the complaint took place.)

The lawsuit is premised on two theories: violation of the state's Open Meetings Law, and violation of a state constitutional provision that prohibits enactment of bills less than three days after they have been distributed in final printed form to the legislators, unless the governer issues a Certificate of Necessity.

The plaintiffs premise their Open Meetings Law theory on an implausible interpretation of the statute, which is Article 7 of the New York Public Officers Law.  They apparently argue that whenever the Republican caucus of the Senate gets together, as long as they are discussing pending legislation it is a "public meeting" from which lobbyists and the press may not be excluded. They argue that because the Republicans have 32 out of 62 votes in the Senate, whenever the Senate Republicans meet as a group, a quorum is present and thus it is a meeting of the Senate that qualifies as a "public meeting" under the Act.  They argue that when the governor met with Republican senators to discuss the bill at dinner in the Executive Mansion, it was a "public meeting."  And, of course, they argue that the negotiation of the religious exception amendment during the final days leading to the vote took place improperly behind closed doors.

A reading of the statute makes clear that none of the events mentioned in the complaint were intended to be covered under the statute as a "public meeting" from which lobbyists may not be excluded. A public meeting is an official session of the legislature or a duly constituted committee of the legislature, or of any policy-making or adjudicatory agency of the executive branch at which an official vote is taken to establish policy or formally decide a pending adjudicatory matter.  Were the plaintiffs' meaning to be applied to the situations specified in their complaint, most of the important legislation enacted in New York would be invalid, little of substance would ever be accomplished in Albany.

Furthermore, Section 108 of the Act specifically exempts "deliberations of political committees, conferences and caucuses," regardless of "the subject matter under discussion," regardless of "the majority or minority status of such political committees, conferences and caucuses."   In fact, Section 108 explicitly exempts private meetings of state legislators, even when they invite guests (such as Mayor Bloomberg, who met with the Republican caucus to lobby them on the bill). 

By failing to mention or quote the exemption provision, and by incompletely quoting the definitional section, plaintiffs' counsel leave themselves open to the criticism that they are trying to mislead the court, in violation of ethical rules governing law practice.   By not even attempting in their complaint to make an argument that the exemption provisions do not apply, the suggest that the complaint is political — filed for the purpose of generating a story — and a misuse of the court for political purposes.

As to the Certificate of Necessity, Article III, Section 14, as quoted in the complaint, states: "No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor, or the acting governor, shall have certified, under his or her hand and the seal of the state, the facts which in his or her opinion necessitate an immediate vote thereon."  The quotation actually cuts off in the middle of a sentence of the constitutional provision. The provision does not list grounds that would qualify as an emergency, thus leaving the question of certification entirely up to the opinion of the governor. 

On June 24, the Senate took up and passed the identical Marriage Equality Bill that was passed several days previously by the Assembly.  That bill was introduced at the governor's request and distributed in printed form to the members of the legislature much more than three days prior to the vote, so the constitutional provision is irrelevant to its passage.  During the week leading to June 24, several Republican Senators meeting with members of the governor's staff negotiated a package of amendments to replace the Religious Exception provisions in the governor's bill with a broader set of provisions, and to add more explicit protection for clergy who did not want to perform same-sex marriages.  It also added a provision invalidating the entire bill if any provision of it was declared invalid by the courts.  The negotiation of this package of amendments was concluded late that week, printed up, and presented to the Assembly and Senate members, I believe on June 23 or 24.  It was the subject of intensive discussion in the Republican Senate caucus, resulting in a decision to let the measure come to the floor.  The governor issued a certificate of necessity, and the measure was put to a vote and passed in both houses subsequest to the Senate's passage of the Marriage Equality bill.  Both measures were to take effect 30 days after signing.  The governor signed both measure late on June 24.

It is most unlikely that any competent judge would believe that he or she has the authority to second-guess the governor's opinion as to the reasons for issuing a Certificate of Necessity, when what the Constitution calls for is not some objective judgment about whether a necessity exists to expedite consideration of a bill, but rather that the governor publish a written explanation of his opinion why such a necessity exists.  The constitutional provision is satisfied by the governor publishing his opinion in writing under the seal of the state.  So long as the governor publishes his opinion in the prescribed form, the Constitutional provision is satisfied.  It leaves no room for judicial second-guessing, and places no limitation on the reasons that the governor may cite.

In other words, this looks very much like frivolous litigation.  As a spokesperson for the governor, Josh Vlasto, told the press, "The plaintiffs lack a basic understanding of the laws of the state of New York."  (Quoted in the NY Times City Room blog on July 25.)  One hopes that the 7th District Supreme Court will not embarrass itself by issuing injunctive relief in this case, only to be overturned on appeal.

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