Gay Marriage Opponents Can Fight Election Law

MANHATTAN (CN) - The 2nd Circuit revived claims from a group opposed to gay marriage that New York Election Law improperly defines it as a "political committee."

The National Organization for Marriage, which defines itself as nonsectarian, nonpartisan and nonprofit, is dedicated to opposing same-sex marriage.

It sued the leaders of the New York State Board of Elections on Sept. 16, 2010, in anticipation of its activity during the November 2010 elections. New York legalized same-sex marriage in the summer of 2011.

The group took issue with Section 14-100-1 of New York Election Law, which defines a political committee, in part, as an organization that aims "to promote the success or defeat of a political party or principle, or of any ballot proposal; or to take part in the election of a political party or principle, or to aid or take part in the election or defeat of a candidate."

NOM claimed its activities could fall under that definition, though the board of elections had not stated that it would define NOM as such. It said the mere threat of being labeled a political committee under state law "chilled this form of protected speech." If defined as such, the law would have required NOM to file a registration statement and make periodic reports disclosing contributions and expenditures, according to the complaint.

The complaint sought a ruling that state election law violates the First Amendment and an injunction barring the law's enforcement.

NOM claimed that it sought in September 2010 and would seek in October 2010 to advocate directly for the election of certain candidates, and that it planned to engage in "materially similar" speech in "materially similar situations in the future."

Although the group disavowed any plans to coordinate that advocacy with any candidate or candidate committee or political parts, or to contribute to any of these entities, it said the board could still classify it as a political committee and that it would have no warning if the board planned to enforce its law.

NOM supported its complaint with the transcript for a radio advertisement that it planned to run in New York.

"Legalizing gay marriage has consequences for kids," the ad said. "Massachusetts schools teach second graders that boys can marry other boys. A California public school took first graders to a same-sex weeding, calling it 'a teachable moment."

The ad goes on to push electing Carl Paladino for governor because "he'll stand up for marriage between one man and one woman."

Carol Paladino, a Republican, later lost to Andrew Cuomo, a Democrat.

A federal judge in Buffalo dismissed the complaint for lack of subject-matter jurisdiction, stating that NOM's claimed injury was "too remote" and that it had a "notable chance of avoiding enforcement" because the board had given no indication it would enforce the law.

The Manhattan-based 2nd Circuit reversed Monday, however, after finding that the claims "were ripe for adjudication and are not moot."

On remand, the District Court must "consider, in the first instance whether to dismiss NOM's complaint on the merits," Judge Peter Hall wrote for a three-member panel.

In contrast to the remoteness finding, "NOM's complaint contends, and the advertisements attached to its complaint demonstrate, that it wanted expressly to connect its speech to a particular candidates and election," Hall added (emphasis in original).

"We thus give credence to NOM's assertion that it 'fears it is a political committee under New York law."

The court found no reason to abstain from resolving NOM's constitutional claims.

"If NOM is right on the merits, forcing it to break the law before we will answer the constitutional question 'creates a direct and immediate dilemma,' and a significant hardship," Hall wrote.

Conclusion of the election furthermore does not make NOM's claim moot because the group allegedly plans to engage in similar behavior in the future, the court found.

In a dissenting opinion, Judge Jon Newman said he would have upheld dismissal because the board of elections has given "no indication that the challenged regulations apply to the plaintiff."

He also noted that the board "stands ready to respond to an inquiry as to whether the challenged regulations apply to the plaintiff."

"In such circumstances, the plaintiff's fear of adverse consequence cannot be said to be 'well-founded,'" Newman wrote.

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