Why the legal challenge to NY gay marriage law is doomed to fail

July 28, 2011

NY samesex marriageLast month, New York became the most populous state to legalize same-sex marriage.

This month, the law is being challenged in court.

The plaintiff is the group New Yorkers for Constitutional Freedoms (NYCF), a self-described “group of pastors concerned about religious liberties and moral values in New York State.”

Is the group contending (as their name suggests they would) that the law is unconstitutional?

No.  NYCF instead claims that the law is invalid because legislative procedures were not followed properly, relying heavily on the New York open meetings law.

To those who followed the Wisconsin collective bargaining legal battle, this argument should seem familiar, since opponents of the Wisconsin law used the same one.

In Wisconsin, the Republican majority in the state senate stripped budget measures from the bill containing the collective bargaining provisions in a committee hearing without proper notice (24 hours is required, less than two was given).

While the argument was successful in the trial court and on appeal, the Wisconsin Supreme Court gave extremely wide deference to the legislature in “its interpretation of its own rules of proceeding.”

As such, the court essentially said it wasn’t within its power to review the legislative procedures leading up to the passage of a law.

In New York, there also seems to be some hesitation by the courts to interfere in the legislative process.

cuomo gay pride paradeThe violation alleged by NYCF consists of New York Governor Andrew Cuomo privately meeting with all Republican members of the state senators at the Governor’s Mansion to persuade them to vote in favor of the Marriage Equality Act.

New York law isn’t conclusive on whether that meeting is even subject to the open meetings law, and even if it were, there seems to be some leniency given for unintentional violations.

For argument’s sake, even if the meeting was subject to the law and the violation was intentional, NYCF would still have to demonstrate that the meeting played a significant role in the passage of the Act.

Considering the plethora of meetings and communications between Governor Cuomo and the Senate Republicans, pinpointing that one meeting as being instrumental to the bill’s passage is a very difficult case for NYCF to make.

And even if all of the above showings were successfully made, a NY court may follow Wisconsin’s lead and just defer to the legislature to interpret its own rules.

Even if the court agreed with NYCF on all of these issues, it won’t have standing to bring the suit unless it is an “aggrieved party,” meaning the law has personally affected its members (more than the general populace).

While NYCF members no doubt feel very aggrieved by the passage of the Act, legally, they probably don’t have any more right to sue than any other resident of New York.

The lawsuit also contains arguments that the closed meeting violated free speech rights, and that Governor Cuomo was beyond his authority in calling for an immediate vote on the Act, but neither of these are nearly as solid as the first (which itself is still quite weak).

We really don’t know for sure how the court will rule, but it seems very likely that the law will stand.

This probably, though, won’t be the end of efforts by New Yorkers for Constitutional Freedoms and similar groups to restrict the constitutional right to marriage to heterosexual couples.