Box Turtle Bulletin

Agreement Reached for NY Marriage Equality

[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.