November 30, 2011
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.