Nov 30, 2011 3:19 PM GMT
The Buffalo News
Technicality may snag gay marriage law
Judge finds merit in open meetings accusation as he allows lawsuit to continue
ALBANY -- A lawsuit seeking to overturn the state's new gay marriage law on procedural grounds can move forward because a private meeting between Gov. Andrew M. Cuomo and Senate Republicans may have violated the state's open meetings law, an acting State Supreme Court judge in Livingston County has ruled.
Judge Robert Wiggins, a Republican, said there is a "justiciable issue" at stake in a lawsuit brought by a group of evangelical Baptist churches over whether the process used to pass the gay marriage law was legal.
The judge harshly slapped Cuomo for pushing through the bill without the normal three-day aging process, but he said he has no legal force to rule against the maneuver because the Senate voted to accept the "message of necessity" and pass the bill quickly on the night of June 24.
But the judge said there could be a problem with a June closed-door meeting between Cuomo and Senate Republicans, which the plaintiffs -- New Yorkers for Constitutional Freedoms -- said was an arm-twisting session by the governor to get the GOP senators to back the bill.
The bill later passed, with four Republicans -- including Buffalo Sen. Mark Grisanti -- breaking ranks with their party to get it passed.
Cuomo had no comment on the court ruling, a spokesman said Tuesday.
Ross Levi, executive director of the Empire State Pride Agenda, the chief gay rights lobby group at the Capitol, said the bill was passed legally.
"The people have clearly spoken on this issue. The elected officials have heard them and acted appropriately," he said. "It's clear that some extremist groups are making a desperate attempt to stop the rocket ship of equality by throwing a few feathers in the wind, but we're confident they will not succeed."
New Yorkers for Constitutional Freedoms, a conservative religious group that led protests at the Capitol in the days leading up to the vote, challenged the vote on a number of procedural points, including the failure to "age" the bill for the normal three days, a lock-down of the Senate lobby and at least two private meetings that the group said should have been open to the public.
The judge went out of his way to stress that his decision was not aimed at an "opinion on same-sex marriage" but is limited to the procedures used to get the bill passed.
Various government reform groups have complained for years about the use of "messages of necessity" by governors to get a bill quickly introduced and passed before there is time for advocacy groups to read -- or lobby on -- a bill's contents. The messages have been favorite tools by Republican and Democratic governors, especially on controversial budget votes.
Wiggins noted the governor's message was based, according to Cuomo, on an urgent need to end discrimination toward gay couples who want to get married.
The judge called that reasoning "disingenuous."
"The review of such concept-
altering legislation for three days after generations of existing definitions would not so damage same-sex couples as to necessitate any avoidance of rules meant to ensure full review and discussion prior to any vote," Wiggins wrote in his decision, dated Nov. 18 but sent Monday night to lawyers in the case.
But, the judge wrote, he "reluctantly" has to accept that the court has no jurisdiction on the matter because the Senate voted to accept the message.
The private meetings, most notably one held days before the vote at the governor's mansion featuring Cuomo and Senate Republicans, are a different legal matter, the judge said.
"It is ironic that much of the state's [legal] brief passionately spews sanctimonious verbiage on the separation of powers in the governmental branches, and clear arm-twisting by the Executive on the Legislative permeates this entire process," Wiggins wrote.
The meeting at the mansion was among the final rounds of pressure Cuomo brought on the Senate to get the gay marriage bill to the floor for a vote before the 2011 session ended.
"The state argues this case involved a Republican caucus to which guest or guests were invited. As such it is exempt from the open meetings requirement. The plaintiff argues that the particular guests, the opposition party governor and others, makes this a non-exempt gathering, and, therefore, subject to the open meeting requirement," the decision states.
Wiggins said there is enough evidence presented involving a possible open meetings law violation that the legal case can continue. He rejected the state's attempt to have the case tossed before the full merits can be heard.
The Rev. Jason McGuire, executive director of the group challenging the gay marriage bill's passage, said he was "grateful" for the court decision. McGuire acknowledged the Legislature would likely reapprove the same-sex marriage law even if his group ultimately wins in court.
But he said so many rules and laws were violated by the way the bill passed that all advocacy groups should be concerned.
"Right now, it's same-sex marriage. But this can happen to any piece of legislation," he said.
McGuire said meetings between Cuomo and the Senate Republicans -- as well as between senators and New York City Mayor Michael Bloomberg, a gay marriage backer and major financier of Senate GOP campaigns -- should have been open. He also criticized the Senate for failing to hold committee votes on the bill before it came to a floor vote.
"In the end, the process is not right," McGuire said. "Something has to change."