Gaming Law ReviewVol. 26, No. 4 CaseOpen AccessCreative Commons licenseNew York Redefines “GAMBLING” … and What Could this Mean for Poker?Daniel SchiffmanDaniel SchiffmanDaniel Schiffman is Vice President for Support Services at Spectrum Gaming Group (www.SpectrumGaming.com), and has been a member of GLR's Editorial Board since inception.Disclaimer: The views and opinions are the author's own and do not represent or express the views and opinions of Spectrum Gaming Group.Search for more papers by this authorPublished Online:23 May 2022https://doi.org/10.1089/glr2.2022.0018AboutSectionsPDF/EPUB Permissions & CitationsPermissionsDownload CitationsTrack CitationsAdd to favorites Back To Publication ShareShare onFacebookTwitterLinked InRedditEmail For generations, New York complacently watched regulated gaming activity and its related tax revenue being exported to Nevada, New Jersey, and more recently to other close-by states. Now, with New York's current Nation-leading iGaming revenue1 and the likelihood of adding three full-fledged brick and mortar casinos in and around New York City—perhaps even in tourist-mecca Manhattan—New York is poised to become an epicenter of regulated gaming.New York's Traditional Definition of GamblingThe State's Constitution prohibits gambling, with exceptions created at different times for horse racing, charitable games, State Lottery, and of late, a few traditional casinos. The term “gambling” is not defined in the Constitution, nor does it include any clue about the meaning of the term beyond the implicit common understanding that gambling consists of consideration, chance (aleatory event) and prize. That uncertainty left room for the Legislature to refine the Constitution by defining the term “gambling ” and its elements.There is much case law interpreting consideration and prize, mostly in the context of promotional schemes and “sweepstakes.” Those terms, consideration and prize, are not statutorily defined. The element of chance, however, is defined as any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree (emp. added) upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein (“the material element” test).2The Definition of Gambling was Changed by the State's Highest CourtRecognizing the popularity of Interactive Fantasy Sports3 and perhaps pragmatically anticipating New York's impending leadership as a gaming destination, the State's highest Court, by a 4 to 3 vote in White v. Cuomo, __N.Y.3rd, __,___N.E.3d__ WL 837573 (March 22, 2022, reproduced in this issue of Gaming Law Review [GLR]) reversed the lower Courts and redefined “gambling” to follow the U.S. majority's predominance test.4 The State's highest Court ousted the longer than half-century old legislative definition that considered any activity that involved a material element of chance as “gambling” regardless of the predominance of skill.To leave no doubt, the Majority wrote in Conclusion: “As we now clarify, the prohibition on ‘gambling’ in article I, § 9 [of the New York Constitution] encompasses either the staking of value on a game in which the element of chance predominates over the element of skill or the risking of value through bets or wagers on contests of skill where the pool of wagered value is awarded upon some future event outside the wagerer's influence or control. However, games in which skill predominates over chance and skill based competitions for predetermined prizes in which the participants have influence over the outcome do not constitute ‘gambling.’”While the redefinition of “gambling” will be applicable to every activity in which its elements occur, the specific subject of White v. Cuomo was the constitutionality of a law that authorized and decriminalized regulated interactive fantasy sports (IFS). The Legislature declared that IFS does not constitute gambling under the then-existing statutory material element test,5 while going on to authorize, regulate and tax6 the activity through the State's Gaming Commission,7 and adding that registered (i.e. licensed and regulated) operations shall not constitute gambling 8 and are authorized,9 while unregistered contests are prohibited.10The progress of White v. Cuomo prior to the ultimate disposition in The Court of Appeals was thoroughly examined in a previous issue of GLR,11 and need not be repeated in detail here. Suffice it to say that the Trial Court12 ruled that “the stated rationale for the [Legislative] finding that IFS does not constitute gambling as defined in the Penal Law does not support such conclusion. Nevertheless, … the Court cannot find that … excluding IFS from the [statutory] definition of gambling is unconstitutional,13 nevertheless ruling that, since IFS involves a material element of chance, authorization violated the Constitutional prohibition as statutorily effectuated.14In affirming the conclusion that IFS is unconstitutional gambling under New York law and declaring the entire enabling statute void,15 the Intermediate Appellate Court reversed the Trial Court's decision regarding the legislative declaration of fact. The Court wrote: “Thus, IFS contests are not excluded from the constitutional meaning of ‘gambling’ merely because the Legislature now says that it is so.”16 And for completion of that thought, the Court preserved the section of the otherwise void IFS law “which states that ‘[t]he conduct of unregistered [IFS] contests is prohibited.’”17 The Court reasoned that because most of the IFS Law is void, no IFS contests can now be registered.18 The sole dissent raised the presumption of constitutionality19 and focused on the extensive debate and rationality of the legislative declaration.20Since a constitutional issue was involved, it was always anticipated that the final word would come from the Court of Appeals. What was not anticipated is that the Court would redefine gambling. Overriding the 57-year-old statutory definition and consistent body of cases that applied it, including alcoholic beverage regulation,21 is a sweeping and unforeseen change in the State's law.One may ponder whether the significantly changed composition of the Court was a material element of chance affecting the ultimate outcome and redefinition of “gambling.” Seven Judges sit on the Court of Appeals. One recused himself.22 Because reargument at a later date was ordered by the Court on October 14, 2021,23 nine days after the initial argument on October 5, It is fair to surmise that the remaining six Members of the initial Bench were evenly divided and passionate about their positions.24 One Member of the initial Bench retired and was replaced between the initial argument and reargument, and an intermediate appellate judge was designated to fill the seventh seat.25 To add to the possible material element of chance, two other seats turned over between the Appellate Division disposition on February 6, 2020, and the Court-initiated reargument two years later.The Future of PokerPoker has historically been frowned upon and criminalized, but only the operation of Poker games for profit is proscribed in New York. Players are exempt.26 So, New York became one of the majority of states that define gambling under the predominance test. And what could that mean for Poker? Probably nothing other than years of litigation arguing over whether Poker is predominantly a game of skill. The Court of Appeals wrote: “… no issue is presented here as to whether such card games [poker and blackjack] constitute ‘gambling.’ In any event, … where games incorporate bets or wagers, the level of skill involved would not be determinative.”27Does the redefinition of gambling mean that there will be a floodgate of unregulated Poker rooms? Probably not, at least in the long term. In authorizing IFS, the Legislature declared that IFS is not gambling while simultaneously subjecting it to gaming regulation. The foreseeable effort to regulate and tax Poker will lead to an equally foreseeable body of litigation, to be ultimately determined years from now with an unforeseeable result by legislators and judges who may not yet be in office, and whose vision cannot be predicted.Efforts Toward Authorizing and Regulating PokerAn unsuccessful proposed law to authorize and regulate interactive Poker included a redefinition of gambling to adopt the predominance test.28 One wonders why the IFS law did not include the redefinition. Perhaps there was no Legislative appetite for it. The Interactive Poker law has been repeatedly introduced over the years and met with repeated failure. Perhaps now that the predominance test has been imposed on the Legislature, and New York is seeing substantial economic benefits from the gaming industry, there is hope that Interactive Poker may be added to New York's gaming opportunities.The Dicristina CaseA decade ago, GLR carried a commentary29 about a highly respected Senior U.S. District Judge, Jack B. Weinstein,30 causing a stir in the Poker community by finding as fact, in a 235 page opinion, that Poker is a game of skill.31 The Defendant, who was operating a small Poker game in New York, was indicted and convicted under the Federal Illegal Gambling Business Act (IGBA),32 which provides in part: “Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined under this title or imprisoned not more than five years, or both. As used in this section, (1) ‘illegal gambling business’ means a gambling business which (I) is a violation of the law of a State or political subdivision in which it is conducted.…”Nonetheless, Judge Weinstein, after noting that the Defendant could have been prosecuted by New York State authorities,33 wrote “Neither the text of the IGBA nor its legislative history demonstrate that Congress designed the statute to cover all state gambling offenses. Nor does the definition of ‘gambling’ include games, such as poker, which are predominated by skill. The rule of lenity compels a narrow reading of the IGBA, and dismissal of defendant's conviction.”Adding presciently: “A reversal of this decision and reinstatement of the jury verdict by the Court of Appeals for the Second Circuit would not violate the defendant's Double Jeopardy rights.”34 In other words, he knew. Nonetheless, Judge Weinstein's extensive study and factual finding in favor of predominant skill is remembered and often referred to by Poker advocates.As Judge Weinstein signaled that he expected, the Circuit Court of appeals wrote: “Because we find that the plain language of the IGBA includes DiCristina's poker business, we REVERSE.” GLR published the Appellate Opinion as well as the commentary that is referred to earlier.35The OutlookThe outlook for properly conducted and regulated gaming in New York is favorable. New York's rise to a gaming center came in stages, so it may not be fair to characterize the State as an emerging jurisdiction. Still, the authorization of remote gaming and the impending likelihood of three full casinos in and around New York City will undoubtedly convert New York to a National gaming center. To their credit, and as a portent of a responsible future, New York's policymakers proceeded carefully toward the current expansion by commissioning a comprehensive study of gaming and gambling in the State.362022 NY Slip Op 01954 JENNIFER WHITE, ET AL., Respondents, v. ANDREW CUOMO, & C., ET AL., Appellants. No. 12. Court of Appeals of New York. Decided March 22, 2022.Opinion by Chief Judge DiFiore. Judges Singas, Cannataro and LaSalle concur. Judge Wilson dissents in an opinion, in which Judges Rivera and Troutman concur. Judge Garcia took no part.DiFIORE, Chief Judge.Article I, § 9 of the New York Constitution authorizes “gambling” in certain circumstances and prohibits it in others. In 2016, after careful consideration, the New York State Legislature enacted article 14 of the Racing, Pari-Mutuel Wagering and Breeding Law authorizing and regulating interactive fantasy sport (IFS) contests upon determining that IFS contests are not prohibited gambling activities because contestants use significant skill to select their rosters, creating fantasy teams, and therefore have influence over the outcome of the fantasy contests between IFS participants. Today, we clarify that the historic prohibition on “gambling” in article I, § 9 does not encompass skill-based competitions in which participants who exercise substantial influence over the outcome of the contest are awarded predetermined fixed prizes by a neutral operator. Because ample support exists for the legislature's determination that the IFS contests authorized in article 14 are properly characterized as lawful skill-based competitions for prizes under our precedent, plaintiffs have not met their burden to demonstrate beyond a reasonable doubt that article 14 is unconstitutional.I. Article 14 of the Racing, Pari-Mutuel Wagering and Breeding LawIFS contests have been a popular form of entertainment for over 40 years and the pastime is played by millions of New Yorkers. Participants of IFS contests create virtual “teams,” drawing from their knowledge of the sport and athlete performance to draft rosters comprised of simulated players based on professional athletes. These virtual teams—composed of athletes who play for different real-life teams—compete against virtual teams compiled by other IFS contestants. The performance of simulated players on an IFS roster corresponds to the performance of the real-life athletes—that is, participants of IFS contests earn fantasy points based on how their selected athletes perform specific acts in actual sporting events that occur after the IFS contest has closed. However, the outcome of an IFS contest does not mirror the success or failure of any real-life athlete or sports team. This is because IFS rosters do not replicate real-life teams, IFS scoring systems are premised on an aggregation of statistics concerning each individual athlete's performance on specific tasks, and IFS contests pit the rosters of participants against one another rather than tying success to the outcome of sporting events. IFS contestants pay entry fees to participate, and the pre-set prizes paid to the most successful participants—along with operator revenues—are typically drawn from those entry fees.Traditionally, IFS contests spanned the duration of a sporting season and, throughout the season, participants could “manage” their team by trading players, picking up free agents, and adjusting their lineups. In more recent years, operators began also offering weekly and daily IFS contests generally structured in the same manner, with IFS contestants assembling virtual teams of players drawn from multiple real-life teams within the confines of an assigned salary cap. Success in weekly or daily IFS contests, as with season-long competitions, does not depend on the performance of a single athlete or team. Notably, many professional sport leagues support fantasy sports, viewing the virtual games as a way to engage fans and partnering with IFS operators to promote the competitions.In 2015, the Attorney General commenced actions against two IFS operators, seeking to enjoin daily IFS contests as “unlawful gambling” in violation of the Penal Law and State Constitution. This litigation—which was eventually discontinued with regard to the allegations of illegal gambling—prompted the New York State Legislature to review the legality of IFS contests. At a public hearing, legislators considered testimony from stakeholder representatives including, among others, the Fantasy Sports Trade Association, fantasy sports operators, horse-racing associations, and organizations opposed to the proliferation of gambling. Following “extensive research into the operations of fantasy sports,” the Racing and Wagering Committee concluded that “fantasy sports is not gambling and does not, therefore, violate … the New York State Constitution” (NY Assembly Debate on Assembly Bill A10736 [June 17, 2016] at 145).After robust debate, the legislature enacted article 14 of the Racing, Pari-Mutuel Wagering and Breeding Law (see L 2016, ch 237), authorizing registered prize-based IFS contests conducted in accordance with various restrictions and subject to regulatory oversight (see Racing, Pari-Mutuel Wagering and Breeding Law §§ 1402, 1405, 1411, 1412). The legislature declared that IFS contests are not “gambling” within the meaning of the Penal Law (see Penal Law § 225.00[1], [2])1 because the outcomes of such contests are dependent upon “the skill and knowledge of the participants,” rather than chance, and the “contests are not wagers on future contingent events not under the contestants' control or influence” because the outcome is dependent upon the comparative skill of each IFS participant as measured against one another (Racing, Pari-Mutuel Wagering and Breeding Law § 1400[1][a], [b]; [2]; see § 1401[8]).II. Procedural historySoon after the legislature enacted article 14 of the Racing, Pari-Mutuel Wagering and Breeding Law, plaintiffs commenced this action against defendants, then-governor Andrew Cuomo and the New York State Gaming Commission, seeking a permanent injunction precluding implementation of article 14 and a declaration of constitutional invalidity. After defendants answered, denying plaintiffs' allegation that the IFS contests authorized by article 14 constitute prohibited gambling, the parties eventually stipulated to certain facts regarding IFS contests and cross-moved for summary judgment.Supreme Court granted plaintiffs' motion for summary judgment in part, declaring that article 14 violates the constitutional prohibition on “gambling” to the extent it authorizes IFS contests, and also granted defendants' cross motion for summary judgment in part—thereby declaring article 14 valid to the extent it excludes IFS from the scope of the criminal statutes relating to gambling (62 Misc 3d 877 [Sup Ct, Albany County 2018]). Applying the Penal Law definitions of “gambling” and “contest[s] of chance” (Penal Law § 225.00[1], [2]), the court reasoned that IFS contests are “gambling” under the State Constitution because they “involve[ ], to a material degree, an element of chance” inasmuch as the performance of real-life athletes is not subject to the IFS contestants' control (62 Misc 3d at 887). However, the court determined that the legislature acted within constitutional bounds to exclude IFS contests from the scope of the Penal Law provisions regarding gambling because, while the legislature lacked authority to authorize “gambling” prohibited by the Constitution, it “has the full authority to define and limit such offenses in the context of [a criminal] anti-gambling statute” (id. at 897-898).Upon the parties' cross appeals, the Appellate Division modified and, as so modified, affirmed (181 AD3d 76 [3d Dept 2020]). Also applying the Penal Law definition of “gambling,” the Appellate Division agreed with Supreme Court that IFS contests are “gambling” prohibited by the Constitution on the rationale that IFS participants do not control the performance of the athletes on their rosters and, thus, the contests involve “a material degree of chance” (id. at 82-84). The Appellate Division further invalidated that portion of article 14 that excludes IFS from the scope of the criminal “gambling” provisions, asserting that—although constitutional—the legislature “would not have wished to preserve the decriminalization of IFS” in light of the court's invalidation of the majority of article 14 (id. at 86). However, the Appellate Division upheld the provision prohibiting unregistered IFS contests (see Racing, Pari-Mutuel Wagering and Breeding Law § 1412) since no IFS contests could lawfully be registered following its decision (see 181 AD3d at 84). A single Justice dissented, concluding that the record supported the legislature's determination that IFS outcomes do not depend to a material degree on chance or future contingent events not under the contestants' control and, as such, “the lawmakers properly determined that an IFS contest is not a constitutionally prohibited gambling activity” (id. at 87).Defendants appealed to this Court as a matter of right on constitutional grounds (see CPLR 5601 [b] [1]), and we now reverse.III. Standard of reviewThe question before us is whether the legislature violated article I, § 9 of the New York Constitution when it enacted article 14 of the Racing, Pari-Mutuel Wagering and Breeding Law, authorizing certain IFS contests in New York. It is well settled that “[l]egislative enactments are entitled to ‘a strong presumption of constitutionality’” (Dalton v. Pataki, 5 NY3d 243, 255 [2005], quoting Schulz v. State of New York, 84 NY2d 231, 241 [1994]), and “courts strike them down only as a last unavoidable result” (Matter of Van Berkel v. Power, 16 NY2d 37, 40 [1965]) after “every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible” (Matter of Fay, 291 NY 198, 207 [1943]). Thus, while the presumption of constitutionality is not irrefutable, as the party challenging a duly enacted statute, plaintiffs “face the initial burden of demonstrating [article 14's] invalidity ‘beyond a reasonable doubt’” (LaValle v. Hayden, 98 NY2d 155, 161 [2002], quoting People v. Tichenor, 89 NY2d 769, 773 [1997]; see Matter of Moran Towing Corp. v Urbach, 99 NY2d 443, 448 [2003]; Matter of Saratoga Water Servs. v. Saratoga County Water Auth., 83 NY2d 205, 211 [1994]; Wiggins v. Town of Somers, 4 NY2d 215, 218-219 [1958]). Moreover, as the party mounting a facial challenge to article 14, plaintiffs “‘bear[ ] the substantial burden of demonstrating that in any degree and in every conceivable application, the law suffers wholesale constitutional impairment’ (Matter of E.S. v. P.D., 8 NY3d 150, 158 [2007], quoting Matter of Moran Towing Corp., 99 NY2d at 448).To be sure, it does not follow from the presumption of constitutionality that IFS contests are “excluded from the constitutional meaning of ‘gambling’ merely because the [l]egislature now says that it is so” (181 AD3d at 81). The Constitution does not delegate the legislature unfettered authority to determine whether particular activities constitute “gambling” (see NY Const, art I, § 9; 4 Rev Rec, 1894 NY Constitutional Convention at 1080-1086, 1122; People ex rel. Sturgis v. Fallon, 152 NY 1, 11-12 [1897]). Indeed, it is “the province of the [j]udicial branch” to define the rights and prohibitions set forth in the State Constitution (Campaign for Fiscal Equity v. State of New York, 100 NY2d 893, 925 [2003]), “which constrain the activities of all three branches” of the government (Board of Educ., Levittown Union Free School Dist. v. Nyquist, 57 NY2d 27, 39 [1982]).Nevertheless, when a legislative enactment is challenged on constitutional grounds, there is both an “exceedingly strong presumption of constitutionality” and a “presumption that the [l]egislature has investigated for and found facts necessary to support the legislation” (I.L.F.Y. Co. v. Temporary State Hous. Rent Commn., 10 NY2d 263, 269 [1961]; see Lincoln Bldg. Assoc. v. Barr, 1 NY2d 413, 415 [1956]). While courts may look to the record relied on by the legislature, even in the absence of such a record, “factual support for the legislation would be assumed by the courts to exist” (I.L.F.Y. Co., 10 NY2d at 270). Ultimately, because “[e]very intendment is in favor of the validity of statutes” (People ex rel. Sturgis, 152 NY at 11 [quotation marks and citation omitted]), “[w]here the question of what the facts establish is a fairly-debatable one, we accept and carry into effect the opinion of the legislature,” (Lincoln Bldg. Assoc., 1 NY2d at 415 [internal quotation marks and citation omitted]), which is the arbiter of questions of “wisdom, need or appropriateness” (Defiance Milk Prods. Co. v Du Mond, 309 NY 537, 541 [1956] [internal quotations marks and citation omitted]). Thus, while the legislature may not circumvent the Constitution merely by declaring that an activity which unquestionably constitutes prohibited “gambling” should no longer be considered such, we must remain cognizant of the “distribution of powers in our State government” that render it improper for courts to lightly disregard the considered judgment of a legislative body that is also charged with a duty to uphold the Constitution (New York Pub. Interest Research Group v. Steingut, 40 NY2d 250, 257 [1976]).IV. The constitutional meaning of “gambling”Central to this dispute, article I, § 9 of the New York Constitution provides that—except as authorized therein—“no lottery or the sale of lottery tickets, pool-selling, book-making, or any other kind of gambling … shall … be authorized or allowed within this state” (NY Const, art I, § 9[1]), a provision largely dating back to 1894. The term “gambling” is undefined, and the extent to which it has been permitted by the Constitution has evolved over time.The first State Constitution did not regulate lotteries or other forms of gambling (1777 NY Const). Private lotteries were generally prohibited by statute, but public lotteries raising monies for various purposes were lawful (see 3 Charles Z. Lincoln, The Constitutional History of New York at 34-38 [1906]). In 1821, the Second New York Constitution prohibited “lotteries” and the sale of “lottery tickets” not already authorized by law (1821 NY Const, art VII, § 11) and the legislature enacted various statutes to implement this constitutional prohibition (see 3 Lincoln, The Constitutional History of New York at 46). For more than 70 years, the constitutional prohibition remained limited to lotteries.While the Constitution did not address other forms of gambling, as a matter of statutory law, bets and wagers upon matters of chance, races, and other future contingent events were unlawful in New York and contracts for such bets and wagers were void (see 2 Rev Stat of NY, part I, ch XX, tit VIII, § 26, at 918 [6th ed 1875]; Rev Stat of NY, pt I, ch XX, tit VIII, § 8, at 662 [1st ed 1829]). As of 1877, the legislature had gone further and criminalized the facilitation of “bets or wagers, or … selling pools” on, as relevant here, “contest[s] of skill, speed or power of endurance, of man or beast” (L 1877, ch 178; see 3 Lincoln, The Constitutional History of New York at 46; 4 Rev Rec, 1894 NY Constitutional Convention at 1083; Penal Code of 1881 §§ 351, 352). Approximately ten years later, however, the legislature enacted the “Ives Pool Law,” suspending the criminalization of betting and wagering on horse races at racetracks during particular months of the year (see L 1887, ch 479; L 1893, ch 469). The Ives Pool Law prompted delegates to the Constitutional Convention of 1894—critical of the legislature's decision to carve out particular seasons and locations for betting on horse races—to address “gambling” beyond “lotteries” in the next revision of the New York Constitution (see 4 Rev Rec, 1894 NY Constitutional Convention at 1082-1086). Thus, the Fourth Constitution, adopted in 1894, provided that no “lottery or the sale of lottery tickets, pool selling, bookmaking, or any other kind of gambling [shall] hereafter be authorized or allowed within this State; and the Legislature shall pass appropriate laws to prevent offenses against any of the provisions of this section” (4 Rev Rec, 1894 NY Constitutional Convention at 1131).2New York's constitutional prohibition on lotteries and gambling in 1894 was consistent with the times as, “[b]y the end of the 19th century, gambling was largely banned throughout the country” (Murphy v National Collegiate Athletic Assn., 584 U.S. ___, ___, 138 S. Ct. 1461, 1468-1469 [2018]). However, total bans on gambling were short-lived. By the 1920s and 1930s, “laws prohibiting gambling were gradually loosened” around the country (id. at —, 138 S. Ct. at 1469). In line with this national trend, from the late 1930s through today, article I, § 9 has been repeatedly amended to legalize various forms of lotteries and gambling. Revisions include a 1939 amendment allowing pari-mutuel betting on horse races; 1957 and 1975 amendments authorizing localities to permit certain religious, charitable and nonprofit organizations to conduct “games of chance,” including “bingo or lotto”; a 1966 amendment empowering the legislature to create a state lottery system to aid in the funding of education; and—most recently—a 2013 amendment expressly authorizing casino gaming at up to seven locations throughout the state. More than 50 years ago, even before the most recent significant expansion of legal gaming, we recognized that “the New York public does not consider authorized gambling a violation of some prevalent conception of good morals [or], some deep-rooted tradition of the common weal” (Intercontinental Hotels Corp. [Puerto Rico] v. Golden, 15 NY2d 9, 15 [1964] [internal quotation marks and citation omitted]).While the New York Constitution now allows various forms of regulated gaming, article I, § 9 continues to prohibit “pool-selling, book-making, or any other kind of gambling” not authorized therein. It is our task to determine whether the legislature erred in finding that article 14 IFS contests fall outside the scope of this prohibition. To do that, we must discern the meaning of the term “gambling”—a term the Constitution does not define and never has defined—keeping in mind that, in construing the language of the Constitution, the courts look to the intent at the time of adoption and “‘give to the language used its ordinary meaning’” (Burton v. New York State Dept. of Taxation & Fin., 25 NY3d 732, 739 [2015], quoting Matter of Carey v. Morton, 297 NY 361, 366 [1948]).Plaintiffs urge us to apply the definition of “gambl