Agreement Reached for NY Marriage Equality

Jim Burroway

June 24th, 2011

[UPDATE: The New York state Senate will vote on same-sex marriage tonight:

The State Senate will vote on same-sex marriage, the Senate majority leader said Friday afternoon, setting the stage for a final decision on the most closely watched issue facing the Legislature as it wraps up its annual session. The exact timing was unclear, thought it was expected to occur Friday evening.]

We now have numerous reports that a consensus has been reached among the Republican Caucus of the New York state Senate on wording for religious exemptions that may allow the bill to move forward for a floor vote:

Senate Republicans were still discussing the marriage bill in a closed-door meeting on Friday afternoon; it remained unclear when — or if — they would permit a vote on the broader legislation. The State Assembly, which approved an earlier version of the same-sex marriage bill last week, would need to approve the new language before the full bill could become law.

Emerging from a meeting with Speaker Sheldon Silver, Assemblyman Daniel J. O’Donnell, a Manhattan Democrat who sponsored the Assembly version of the bill, said that there was an “agreement in principle” on the new language. He predicted that the Assembly would vote to adopt the new language on Friday.

Republicans have made no committment to bring the marriage measure to a floor vote. But a Senate spokesman said the decision would be announced sometime Friday night.

Marriage equality advocates have announced their support for the language. The entire bill has been posted online. The religious exemption appears as follows (text changed from all-caps to sentence case):

S 10-b. Religious Exception. 1. Notwithstanding any  state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other  law of  this state, or a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent  order, or a not-for-profit corporation as described in this subdivision, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any  civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation.

2. Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to  subdivision eleven of section two hundred ninety-six of the executive law, of any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with  a  religious organization, to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is  established or maintained.

3.  Nothing  in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under section three of article one of the constitution of the  state  of New York.

As I read it, section one exempts religious organizations from providing services or facilities for “for the solemnization or celebration of a marriage.” Section two is somewhat less clear to me. It appears to exempt religious organizations and charities from fair housing and employment rules, nor would it require religious schools to open their admissions policies. Section three is simply a reiteration of the freedom of religion clause of the New York constitution. As I read it, these clauses do not give up very much at all, but merely reinforce religious prerogatives which already exist under existing law. Further, it should be noted that the language of these exemptions applies to all marriages, not just same-sex marriage.

Interestingly, there is also a nonseverability clause:

5-a. This act is to be construed as a whole, and all parts of it are to be read and construed together. If any part of this act shall be  adjudged by any court of  competent  jurisdiction to be invalid, the remainder of this act shall be invalidated. Nothing herein shall be construed to affect the parties’ right to appeal the matter.

It would appear that this may have been intended to strengthen the religious exemption clause. If someone were to successfully challenge the constitutionality of religious exemption portion of the marriage law, then the entire marriage law would be struck down. But it’s hard to imagine that the religious exemptions portion of the law could be challenged. They have been upheld before as being in accordance with the nonestablishment clause of the U.S constitution.

Stefano A

June 24th, 2011

I don’t know, but I suspect that nonseverability clause was inserted as an attempt to prevent civil actions regarding non-profit religious organizations such as Catholic Charities adoption centers which receive PUBLIC FUNDS from being required to recognize same-sex couples, and to disallow law suits such as the oft cited “pavilion” lawsuit.

Timothy Kincaid

June 24th, 2011

It seems the music I heard was for the dress rehearsal, not the waltz itself… however, cue the music and let the waltz begin.

Stefano A

June 24th, 2011

Again, I’m unsure, but my guess is this would also prevent, again, organizations like Catholic Charities from having to offer benefits for a partner in a same-sex couple when they’re offered to heterosexual employees.

Timothy Kincaid

June 24th, 2011

So the Sisters of Mercy can decide to whom they will be merciful. What a great day for Christendom.

But, other than the fact that I think Jesus would be turning over tables in the Senate Chamber, I can live with this.

Stefano A

June 24th, 2011

But, other than the fact that I think Jesus would be turning over tables in the Senate Chamber, I can live with this.

I think so too.

Timothy Kincaid

June 24th, 2011

Stefano,

You are no doubt correct that this “protection” language is designed to give special rights to the Catholic Church.

But ultimately this is, in my opinion, a Pyrrhic victory. Yes, they will have preserved for themselves the right to discriminate; but they have now redefined their image in New York. A great many non-Catholic people who had a vaguely positive impression of the Church now see it as an enemy of the people, a bully, and power hungry

Stefano A

June 24th, 2011

And a great many Catholics as well. (Speaking as a “non-practicing” Catholic.)

Stefano A

June 24th, 2011

Nevertheless, that nonseverability clause does nag at me, because I’m not sure of what the long-term impacts might be.

It sets up a scenario such as what currently exists in California.

That is . . . If, by some chance a suit was brought at some future date and a judgment rendered that would negate the marriage bill in toto then what happens with the marriages already performed and recognized?

Stefano A

June 24th, 2011

I guess, maybe on the positive side, it might also prevent challenges by religious extremists, but that is even more unclear to me in trying to envision possible scenarios where that might occur.

Mark F.

June 24th, 2011

Final vote tally? I say 32-30

Mark F.

June 24th, 2011

Will pass 32-30

Mark F.

June 24th, 2011

Anyone think this will fail? I doubt it at this point.

Priya Lynn

June 24th, 2011

I for one will be very surprised if the Republicans don’t go back on their word and refuse to let it come to a vote.

Jon

June 24th, 2011

Stefano, under existing law as interpreted by the courts, I think that a Catholic organization could refuse to provide benefits to a gay employee’s same-sex spouse ONLY IF this is the kind of job that the organization could require to be filled by a good Catholic. The new bill doesn’t expand existing law. So if there is an employee out there for whom this is an issue, they should be more concerned about being fired than benefits.

(The other issue with benefits is that federal law preempts most state law governing benefits, and most practitioners currently read DOMA as allowing employers to not give benefits to same-sex spouses where those benefits are subject to the federal law.)

Stefano A

June 24th, 2011

@ Jon

Except sections 1 and 2 seem to void those existing laws for religious organizations (eg, the ones which were upheld when DC enacted marriage equality).

As for DOMA, that’s a tangent, as this applies to NY state law not federal anyway.

Gus the Protestant

June 24th, 2011

Cut the nonsense, the Catholic’s were trying to maintain their flow of tax dollars to their charities, you know, where they brag about their good works WE pay for… in order to get to heaven, but still wanted to discriminate.

eugene

June 25th, 2011

it’s not that hard to defect from the RCC. just send a letter to the diocesan office where you where baptized. and tell them any number of things, like… you married your partner for instance. you might need to send it a couple of times. they will send you a letter telling you they have listed you as “defected”. got mine and breath free and unencumbered by the label “Catholic”

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