ALBANY – Legislators were entitled to hear Mayor Michael Bloomberg make his case in private for the recognition of gay marriage, Attorney General Eric T. Schneiderman argued in his defense of the state’s Marriage Equality Act.
Mr. Bloomberg’s lobbying technique was one of several complaints about the way in which the law was passed (NYLJ, June 26) lodged before Supreme Court Justice Robert B. Wiggins in Livingston County by New Yorkers for Constitutional Freedoms. The group, which is based near Rochester, is a conservative Christian coalition that contends the recognition of same-sex marriages is illegal in New York.
The group is arguing that Mr. Bloomberg’s private Albany meeting with members of the state Senate on June 16 at a gathering sponsored by Governor Andrew M. Cuomo to discuss the bill violated the First and Fourteenth amendment rights of the same-sex marriage opponents. The case is New Yorkers for Constitutional Freedoms v. State Senate, 807-2011 (See Complaint).
Mr. Schneiderman’s office countered that the Legislature has exempted itself from the disclosure requirements of the state Open Meetings Law and is free to invite anyone it chooses to closed-door meetings of the Democratic or Republican caucuses.
“Where, as here, plaintiffs contend that the senators who were gathering were all members of the same party, then the Legislature has expressly declared that the presence of guests is irrelevant and the Open Meetings Law does not apply to that private gathering,” the attorney general’s office argued. “Thus, for purposes of the Open Meetings Law, whether the Governor or Mayor were present is expressly irrelevant. The Court must consider the meeting of the senators ‘without regard to…guests.’”
Nothing in the law or the U.S. Constitution requires that members of government be compelled to listen to what advocates for one policy position or another want to say, Mr. Schneiderman contended in a brief signed by Assistant Attorney General James B. McGowan.
“While the ‘First Amendment protects the rights of an individual to speak freely, to advocate ideas, to associate with others, and to petition his government for redress of grievances,’ nothing in the First Amendment or Supreme Court case law ‘suggest that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues,’” the state argued, quoting Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), and Smith v. Arkansas Highway Employees, Local 1315, 441 U.S. 463 (1979).
New Yorkers for Constitutional Freedoms also argued that the manner in which the same-sex marriage bill was designated for an immediate vote by Mr. Cuomo through a so-called “message of necessity”—thereby bypassing the usual three-day waiting period for most legislation—was improper. Courts have repeatedly upheld the use of messages of necessity and have been hesitant to intercede in challenges to procedural issues developed by the Legislature.
New Yorkers for Constitutional Freedoms has attacked the adoption by the Senate of the same-sex marriage law on largely procedural grounds, claiming that Mr. Bloomberg, New York City Council Speaker Christine Quinn and other advocates for the law gained improper access to Senate members in the days leading up to its final passage.
The suit in Livingston County names the Senate, which gave final approval to the same-sex marriage bill in June, the Department of Health and Mr. Schneiderman as defendants. The Department of Health maintains marriage records in New York.
Mr. Cuomo and Mr. Schneiderman both supported the adoption of same-sex marriage when they were running for election in 2010. The measure, which had earlier passed the Assembly by a comfortable margin, was approved in the Senate 33-29.
The same day the attorney general’s office filed papers in the New Yorkers for Constitutional Freedoms case, last Friday, it also responded to a challenge to same-sex marriage filed in the Northern District of New York in Zavalidroga v. Cuomo, 11-cv-831 (See Complaint).
In that case, the plaintiffs reiterated many of the same arguments as in the state-court challenge to the Marriage Equality Act, including the way the legislation was hastened to a vote by Mr. Cuomo issuing a “message of necessity.” The attorney general says that there is nothing in the legislative rules or state law prohibiting that tactic.
The plaintiffs in Zavalidroga also argued that there is a “gay marriage confederacy” in New York that has “unconstitutionally foisted its demented social programs upon an invariably unwilling populace.”
“Plaintiffs have first-hand knowledge that the major media in New York state were working in collusion to censure viewpoints in opposition to same-sex marriage just prior to its being voted on by the Legislature,” the plaintiffs, Margaret and Tomas Zavalidroga, contend.
Senator Ruben Diaz, D-Bronx, has threatened to bring legal action or to file legislation in an attempt to undo the same-sex marriage law. But an aide said yesterday that he has neither submitted legislation to do so nor has he joined any suit against the new statute.
@|Joel Stashenko can be contacted at email@example.com.