by Joseph Spector Albany bureau chief

ALBANY — A state Supreme Court judge in Livingston County has ruled that a lawsuit filed by a Spencerport-based organization challenging the state’s same-sex marriage law can proceed.
New Yorkers for Constitutional Freedoms filed the lawsuit in July, which alleged that the state had violated the open meetings law when voting to legalize same-sex marriage on June 24. The state has sought to dismiss the lawsuit, but the Nov. 18 decision said that New Yorkers for Constitutional Freedoms had presented enough evidence to allow the suit to continue.
The organization filed the suit because it wanted to show that “laws were broken in passing this legislation,” said Jason McGuire, the executive director of New Yorkers for Constitutional Freedoms, a pro-life group that has fought the same-sex marriage law. “If you don’t have integrity and confidence in the legislative process, you don’t have anything at all.”
The group alleges that Cuomo and Senate Republicans violated the open meetings law by holding closed-door conferences to discuss the bill. The lawsuit also contends that the Senate didn’t follow procedures that require a bill to be sent to appropriate committees before a vote on the Senate floor.
Legislative conferences are always held behind closed doors, and state law exempts political caucuses, committees and conferences from the open meetings law.
Also, governors have the ability to bypass a three-day waiting period for a new bill to be voted on by the Legislature by issuing “a message of necessity” — which was the case for the same-sex marriage vote.
“Logically and clearly this cite by the governor is disingenuous,” wrote Judge Robert Wiggins, a Republican, in his decision. “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 an avoidance of rules meant to ensure full review and discussion prior to any vote.”
Wiggins noted that it was not in his purview to rule on the legality of those procedures, however. But he did say that the lawsuit presented enough evidence about a possible violation of the open meetings law.
“The Court must consider allegations by plaintiff as true. Considering plaintiff’s allegations, and without deciding matter at this time, the Court feels that is a justiciable issue presented whether there was a violation of the Open Meetings Law,” Wiggins wrote in his decision.
Earlier this year, New York became the sixth and largest state to let gay couples marry. The vote was held June 24, and Gov. Andrew Cuomo quickly signed it into law. It took effect July 24.
Sue Cowell, executive director of the Gay Alliance of the Genesee Valley, characterized the lawsuit as an attempt to find a loophole in the legislative process, noting that a majority of New Yorkers supported the legislation.
Various surveys in early 2011 showed that between 54 percent and 58 percent of New Yorkers were in favor of legalizing gay marriage.

“I think the ultimate decision making always happens at the polls, and if they’re not happy with the legislators, they should do it through the vote,” said Cowell.
McGuire, colleague Duane Motley and Orthodox rabbi Nathaniel Leiter, of the Monsey, Rockland County-based Torah Jews for Decency, are also plaintiffs in the lawsuit. They are being represented by the Liberty Counsel, an Orlando, Fla.-based group that provides pro bono legal assistance to conservative religious groups.
The lawsuit was filed against the Senate, the state Health Department and Attorney General Eric Schneiderman, who represents the state when it is sued. There was no immediate comment from state officials.
McGuire said the lawyers for the sides will now set up meetings to discuss the continuation of the case before Wiggins.

JSPECTOR
Includes reporting by staff writer Sean Dobbin. http://www.democratandchronicle.com/article/20111130/NEWS01/111300329/Local-lawsuit-seeking-overturn-gay-marriage-law-can-proceed-judge-rules