Same-Sex Marriage In New York: Courts Won’t Repeal It

This morning, as is my habit, I checked Towleroad to see what LGBT, LGBT-related, and homophobic news made the headlines.  More on the tragedy of Amy Winehouse’s death, the continuing saga of Dan Choi‘s lonely descent into insanity, and happy scenes from New York, where same-sex couples may now legally marry.

Of course news of happy gay and lesbian couples cannot go without an answer, and sure enough, the homophobes are in the news again.  A group calling itself “New Yorkers For Constitutional Freedom” (they always invoke the Constitution, but don’t actually understand it) has filed a lawsuit against the New York State Senate, the New York Department of Health, and the New York Attorney General.  The claim is that, well I couldn’t really follow the claims because they are nonsensical, but it has something to do with the state legislature not following its own Open Meeting Law and also Marriage Equality was unconstitutional because the legislators were bought off.  At its root, the claim can be summed up as “legislators wouldn’t talk to us before passing the bill, therefore the entire bill is unconstitutional.”

I could go through the complaint point-by-point and demolish it.  It’s very weak, and no court will strike down the Marriage Equality Law, especially for this tripe.  Chances are this case will not even make the state’s highest court,* let alone the United States Supreme Court (the plaintiffs included a federal claim, just in case.)

That this group has turned to the courts should put to bed this notion put forward by the homophobes that activist, unelected judges destroy our liberties by taking away the decision from an elected legislature who are the voice of the people.  Now that a legislature has spoken and passed a law, to whom do these people turn?  The courts.  (When both courts and legislatures speak, then these groups want a popular referendum, because “the people should decide.”  Can’t wait to see what comes next.)

There are so many reasons why this is a futile case, and more than futile, it is a waste of time and money.  No court will ever step in and interfere with the way a legislative body functions (or does not function) unless there is a legitimate constitutional issue involved.  Just as the US Supreme Court will never take on the US  Senate’s filibuster, the New York Court of Appeals will not touch the question of whether the New York Senate acted according to its own rules. Telling the other two branches of government how to function is the surest way for a court to lose its power.  Courts are not law enforcement agencies; they will not overturn laws because the process may or may not have been a Madisonian ideal of republican governance.

The complaints that these legislators were bought off is also going to be dismissed out of hand.  At its heart, what these homophobes are arguing before the court is that the state senators were lobbied by interest groups (and by the Governor and the Mayor of New York), which is somehow unconstitutional.  This of course would mean that the entire legislative process as it has developed cannot exist.  This means that every law the New York Legislature has ever passed is unconstitutional.  We may all hate lobbying (for the other side, of course), but it is most definitely legal and constitutional.  This claim is especially hypocritical because what the plaintiffs essentially say is, “Lobbying is unconstitutional except for the lobbying that we would have done, had the legislators listened to us.”  Most judges are capable of reading between the lines.

I am no expert on New York law, but I would question whether the plaintiffs actually have any kind of standing to bring this suit.  In legal terms, standing means that a person has been harmed and therefore has the right to sue for redress.  If there is no harm or potential for harm, you don’t get to sue.  Standing is a court-created doctrine, so every jurisdiction has its own quirks with regard to standing.  However, reading over the case, I am not exactly sure how these plaintiffs have been harmed.  I’m not sure they know.  Their only claim of harm is that the Marriage Equality law changed the definition of marriage.  This is not harm, it does not affect them in any way.  (There is a free speech claim thrown in there too, but it is weak to the point of not making any sense.)  These plaintiffs claim that the only way to fix this nebulous and undefined harm is to repeal the entire Marriage Equality Act, which is like shooting a mosquito with a bazooka. Courts hate overly broad solutions.

This is a frivolous case.  The lawyers who represent these plaintiffs are obviously hate mongers, but they are also either very bad lawyers or intolerably stupid people.  The truth is they don’t expect to win this case.  Look no further than what happened when similar people tried something similar after Washington, DC passed a marriage equality law.  This is not about repealing same-sex marriage through the courts; it is a huge fundraising effort.  This is a way for these vile plaintiffs to line their own pockets and the pockets of their hateful organization.  They are praying on people’s bigotry and fear, and no doubt there are people only too happy to let them.

The only way to overturn the law is to get the legislature to overturn it or pass a state constitutional amendment banning same-sex marriage (which will create its own set of legal issues like in California.)  The courts will never ever overturn a law if it is not barred by the constitution, no matter what the judges’ own personal tastes may be.

While this is going on, other hates mongers including NOM and the ADF are looking for New York state clerks who lost or will lose their jobs because they refuse to sign same-sex marriage certificates.  This law suit intends to overturn the Marriage Equality Law on First Amendment Free Exercise grounds.  This too will fail.  The Free Exercise clause is hardly used because it is pretty risky grounds for winning a case.  The courts have been clear that while the state (or your employer) cannot discriminate against you for your religion, your religion cannot be an excuse for not doing your job.  In this case, it is a clerk’s job to sign licenses for marriages recognized by New York law.  If a clerk cannot do that, then he or she needs a new job.  He or she is an agent of the state and must follow the law.

This case is a distraction.  It’s a dying dragon spewing its poisonous filth one last time.  It is doomed to fail.


* Most states’ highest courts are called the Supreme Court, but not New York.  Their lowest (trial) court is the Supreme Court and the highest court is the Court of Appeals.  It’s very confusing for the new law student.