Outside Counsel

The marriage equality legislative struggle is interesting for a lot of reasons that go beyond the civil rights issue, and the shift in social perception. Watching it play out I can't help but marvel at what it shows us about the way New York State is governed. There are several things going on here. First there is the fact that the senate majority leader is digging in his heels and refusing-- so far-- to allow the bill to come to the floor for a vote. That's business as usual in Albany, and in Washington for that matter. When Democrats do it Republicans howl, but Democrats apparently lack the gene for righteous indignation. There is also the fact that the Republican senators who are contemplating voting in favor of the legislation are being told outright that if they do they will face a primary. This is, of course, notable because New York State Legislators are effectively voted in for life. Unless one resigns, or is convicted of a particularly heinous felony they leave feet first. Part of this is the incumbent advantage, but a bigger part is pure party discipline. The districts are drawn to make seats safe, and the party (both parties) discourage primaries. People wait their turns, and members don't break ranks. This is, of course, profoundly undemocratic, but nobody said that democracy was the point, did they?

The other point is the effect of New York's fusion politics on the behavior of the legislators. The Conservative Party has announced that it will not endorse senators that vote in favor of this bill, and that has a lot of these characters cowering, including, I suspect, my senator, Mark Grisanti. Grisanti was a Democrat, but he ran with the endorsement of the Republican Party, cross-endorsed by the Conservatives. He caucuses with the Republicans, which makes him a Republican, but he can't feel too secure in that role. If he were to be primaried he'd have a tough race. Even if the Democratic Party decided to endorse him (which it might) without the Conservative endorsement he'd have a tough road. It would be pretty to think that he'd cast a principled vote without regard to his future electability, but that isn't very realistic. There are, I'm sure, a fairly sizable number of senators who are doing similar math.

Finally, there is the way the legislature does business. This is old news, but it recent years it has mostly come up in the context of the state budget, which is boring and technical, and difficult for most people to follow. Marriage equality is a social issue, and therefore more engaging. So how does the New York State Legislature come to terms with this issue? The assumption made by courts when analyzing a law is that the legislature made findings, and that the statute in question is based on those findings. Typically the findings are contained in the language introducing the bill, and are based on hearings conducted by the appropriate legislative committee, but that doesn't seem to be how it works in NewYork. Things are referred to committee, then they come out of committee based on what the party leadership wants to push. It is possible that there are hearings, but this must be pretty rare-- I've never heard of it happening. It sure as heck doesn't seem to have happened on the issue of marriage equality. We've seen interviews in which the Archbishop of Brooklyn has said that marriage equality would lead to people marrying their pets (nice job, Catholic Church. You stay classy.), but we haven't had anybody raising their hand and testifying about the issue in front of any Assembly or Senate committees. That doesn't seem to be how business gets done. This session I wrote two reports for the New York State Bar Association's CPLR Committee opposing legislation. The NYSBA is a pretty influential group, and when it gives the thumbs down that seems to carry some weight, but apparently the way it goes about giving the thumbs down is by buttonholing key members and telling them that a proposed bill is "disapproved". It does not seem to be a very transparent process. As it happens I think that the work the Bar Association does is important and carefully thought out, but I'm sure that most people don't care about most of it. Marriage equality, on the other hand, is something that the majority of New Yorkers favor. It is, I think, good social policy. The Court of Appeals has held that validly performed same sex marriages are recognized by New York, which means that the current state of the law favors out-of-state marriages over those performed in New York. That is an inconsistency which ought to be fixed. The California litigation over Prop. 8 produced a significant record establishing that marriage equality makes good sense, but that isn't in the discussion in Albany right now. The process that this bill is being subject to is, if anything, more opaque than the process by which the CPLR is amended, and that is nuts.