Ari Ezra Waldman | Gay Marriage | New York | News

UDPATED: Analysis: Amended Religious Exemptions in NY Marriage Equality Bill


 For those so inclined/interested/bemused/not yet tired of hearing about it...

The New York State Assembly has just introduced a series of amendments to the same-sex marriage bill. They are available here. The amendments were drafted during three-way consultations with Governor Cuomo (and his team), a select group of NY State Senate Republicans and Senate Democrats. Assembly Speaker Sheldon Silver, who seems like he has been Assembly speaker since the Taft Administration, is cool with the amendments. It will pass the Assembly, and one would imagine the amendments would not be introduced in the Assembly were they not guaranteed to pass in the Senate. Let's hope.

One point of politics and one point of analysis.

Continued, AFTER THE JUMP...

First, to sausage-making. State Senator Ball, a Republican from somewhere other than New York City, came out against the bill before the amendments were finalized. His statement is irking some in the gay blogosphere:

Knowing that marriage equality was likely to pass, I thought it important to force the issue of religious protections. Over the past few weeks, I’ve had the distinct opportunity of listening to literally thousands of residents, on both sides of this issue, by holding an undecided stance. I thought it was important to listen to all of my constituents and hold an undecided position until the actual bill language was written and everyone’s voice had been heard. Now that the final text is public, I am proud that I have secured some strong protections for religious institutions and basic protections for religious organizations. The bill still lacks many of the basic religious protections I thought were vital, and for this reason, and as I did in the Assembly, I will be voting ‘no.’”

Some have read that statement to mean that Senator Ball "took," or, rather feigned, "an undecided stance" in order to push through a number of religious exemptions. Their evidence is not just his language -- saying you took an undecided position is not the same as saying you were actually undecided -- but also his public decision to vote note before the amendments came out. So, some argue, he faked his way through, knowing he was going to jump ship anyway. That is the argument, at least. I prefer to be a little more optimistic about life (what's that old saying? the optimist and the pessimist are born and die on the same day, but the optimist lives better?), but what do you think?

As for the amendments themselves, the sticking point has been so-called religious exemptions to the marriage law. Most of us believe that religious exemptions are fine -- why would I want a clergyman who dislikes gay people to marry me? -- but if the exemptions allowed, say, a Jesuit hospital to deny visitation rights to a same-sex married spouse, I would object.

The amendments first clause specifically refers to objections to "the solemnization or celebration of a marriage," though an admittedly broad reading of the word "celebration" could include any type of "recognition" of the marriage. I hardly think that is a valid interpretation, though.

The second amendment is a bit trickier. It reads: "Nothing in this Article shall limit or diminish the right ... of any religious ... institution or organization," or a charitable organization run in connection with a religious organization, "to limit employment or sales or rental of housing ... or admission to or give preference to persons of the same religion ... or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained."

This appears to be what I was worried about. In New England and in the Mid-Atlantic states (as, I am sure, elsewhere), we have lots of hospitals connected to religious orders (I was born in one!), which could "tak[e] such action" to promote their religious principles by denying spousal visitation rights to legally married same-sex spouses. On the other hand, hospitals with emergency rooms still have to take patients as they come; but it seems that a hospital that treats a gay man, but refuses to let his spouse sit by his death bed, would not be in violation of this law. Thoughts?

Finally, there is something called "severability." One of the amendments requires that the law remain unseverable, so if one part is found to be unconstitutional, the whole law goes down as unconstitutional. In other words, if one part of the law is held unconstitutional (ie., a religious exemption), then the entire
thing is unconstitutional. A court cant "sever" the bad parts from the good parts. That clause is becoming increasingly common in New York State laws, but I wonder if it could pose difficult questions down the road. I don't think so, but maybe that is a failure of imagination. I ask you: What do you think?

In the end, if these amendments mean I can marry the man I love in my beloved home state, then I embrace them. We all should!

UPDATE: I would like to update the post, which was done super quickly after the amendments came out, to respond to one series of questions about severability and general worry about the concerns I raise. First, let me be clear (as the President likes to say): the hospital visitation issue is unlikely to come up. The concerns I raise are on the margins, as things to keep in mind. Plus, I neglected to mention that nonseverability clauses are not sacrosanct. For this omission, I must apologize; I did not do any research on severability before posting. A loyal reader -- LdS -- reminded me of United States v. Jackson, a case we teach in Federal Courts, where one part of a statute was served from the whole even with a nonseverability clause. It happens quite a bit, and yet legislatures still sneak it in there. In the end, I don't think these amendments are worrisome. There is potentially broad language, but none of that language does anything to obscure the main point here: this is a HUGE step toward allowing us to marry! Please do not forget that!

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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  1. Reading this most recent post of yours is seriously one of the most egregious wastes of my time ever. And that's saying something. But did you say anything -- anything at all? If you did, I missed it between the cutesy homilies and the constant questions put to me. Why are you even asking me what I think? Aren't you supposed to be the legal expert?

    I'm sorry to be mean, but this moment is too important for you to screw up. We want answers and you've taken supplying answers here as your responsibility. I don't believe you're living up to it.

    Posted by: ohplease | Jun 24, 2011 5:57:27 PM

  2. Wow this is terrible. Federal regulations (thanks to Obama) currently require any hospital that receives federal funds to allow hospital visitation to same-sex partners, correct? So it seems this would be a conflict between federal and state law, and the the marriage bill might be struck down on those grounds.

    As to Senator Ball, it's completely obvious what he did. I don't know why people who are determined to vote "no" on something are allowed at the negotiation table. If you're going to insert language into a bill, your vote should be conditioned on it.

    Posted by: esurience | Jun 24, 2011 5:59:26 PM

  3. @ohplease: in fact, i did. read it again, slowly this time. i said i don't think the broad interpretation of "celebration" is valid, so that's ok. i also said that there is a chance the second amendment could be an issue in emergency rooms. i also said that i don't see any problem with severability. so, i provided my view. i also think discussion is a good thing.

    Posted by: Ari | Jun 24, 2011 6:01:03 PM

  4. OhPlease, you're an idiot with few reading comprehension skills.

    What exactly did he not answer for you? Rather than berate, why don't you illuminate?

    Maybe it is because I'm a lawyer, but it seems like a pretty sound analysis of the proposed bill. You can't always know for sure how language in a bill is going to be interpreted. That is why there are lawyers. And courts.

    Posted by: Sam | Jun 24, 2011 6:01:37 PM

  5. re: the hospital visits: didn't the obama administration draft some sort of rules making hospitals who receive federal funds accept the same-sex lovers/spouses/partners of their patients?

    Posted by: daftpunkydavid | Jun 24, 2011 6:08:44 PM

  6. Re: Ball. It was unquestionably going to be a political vote he took, and he knew it would be "no" from day one. Despite being talkative, attention-grabbing, and possibly not altogether that bright, I kind of get the feeling he wants the bill to pass despite his vote.

    Re: Bill. I hadn't thought of that possibility regarding hospital visitation. However, I think Obama has mandated that all hospitals that affiliate with Medicaid must allow spousal visitation for same-sex couples, or something along those lines.

    Posted by: Bruno | Jun 24, 2011 6:08:45 PM

  7. If for any reason the law is struck down as unconstitutional in the future, what happens to all the couples who were married in the interim? Are their marriages still legal, a la California?

    Posted by: Ninong | Jun 24, 2011 6:08:53 PM

  8. @Ari: Wouldn't the Obama's administration's memo (or whatever the technical term is) regarding hospital visitation for same-sex couples render your hospital situation moot?

    Posted by: searunner | Jun 24, 2011 6:08:53 PM

  9. @ohplease Rude! You act as if you had engaged him as counsel. This is a blog, one that has worked tirelessly to cover this issue.

    Thanks for this, Ari. If hospital visitation does become an issue, than that will be unfortunate, especially since it will only come up and be resolved _after_ someone has been denied visiting rights.

    Posted by: Peter | Jun 24, 2011 6:10:00 PM

  10. Ari, I share some of your concerns; I think the Repubs are trying hard to exempt as many people as possible with any religious objection to same sex marriage from obeying the law, e.g. the case of the wedding photographer who was sued for refusing to shoot a gay wedding, and particularly publicly-supported Catholic Adoption services who have shut down rather than be required to treat gay couples equally.
    So I'm still a bit unclear as to who is "exempt" from obeying this law, and who isn't, and based on whose religious objections. I'd love a little more clarification about this.

    Posted by: Robert | Jun 24, 2011 6:10:54 PM

  11. People, this is a ROLLBACK of hard-won guarantees of non-discrimination in employment and public accommodation.

    The second clause isn't just about hospitals. It's about being able to FIRE an employee for getting married. It's about refusing to enroll children in day camp. It's about refusing to extend equal employment benefits to gay couples.

    A married gay couple in New York has more rights TODAY than it will if the bill passes.

    Posted by: BobN | Jun 24, 2011 6:11:07 PM

  12. No bias, but I am a well-seasoned and roasted lawyer as well.

    Ari, as usual, good job!

    We are all frustrated, OHPLEASE, we want this Republic to do the right thing and not by piece meal.

    However, patience is a virtue well exercised by the victorious....we share your frustration....

    Posted by: Brains | Jun 24, 2011 6:11:45 PM

  13. @ohplease - Oh, please.

    Posted by: Djeip | Jun 24, 2011 6:12:05 PM

  14. Basic sales tactics 101.

    If a guy comes up to you at the very last minute and offers "a deal", you're supposed to WALK AWAY.

    Table it till Monday. Don't get caught up in the excitement and sign away your rights.

    Posted by: BobN | Jun 24, 2011 6:14:38 PM

  15. @ esurience: why do u see a conflict between the state law and the federal rule? the state law doesnt mandate hospitals allow same-sex spouses, so please develop your argument a little more, i can't follow.

    Posted by: daftpunkydavid | Jun 24, 2011 6:15:35 PM

  16. I'm confused bc the second amendment seems to have a lot more to do than hospital visitation. It discusses "sales" and "employment" and "housing."

    Posted by: Guest | Jun 24, 2011 6:16:07 PM

  17. I think we take what we can right now and sort out the rest in courts (or in a future Democratic majority NY legislature) if we have to later. This is too big a prize and tipping point in the movement to act otherwise. Thank you Ari for your analysis and I apologize for those who would criticize you for asking questions about interpretation over obviously vague language and construction.

    Posted by: Wren | Jun 24, 2011 6:16:42 PM

  18. Ohplease...ok now...apologise! Swell up your big brawny chest, blow some air through your mouth, sit down and apologise. We're waiting.

    Posted by: Uffda | Jun 24, 2011 6:17:35 PM

  19. So religious institutions are in the real estate business? They rent? Whatever! BUT... and here is a question... nothing in the amendment says anything about the taking of public funds. I would say if they don't take public $$$ then fine, but if they do then they are subject to regulation and that would trump anything in this law. Meaning: Fine, you have a right to discriminate, as long as you aren't asking the public to fund it. You don't have a right to get public $$$ with no strings attached. It's already enough knowing I'm subsidizing all this religious crap via all the tax breaks they get.

    Posted by: Mike | Jun 24, 2011 6:18:30 PM

  20. @Wren: Given the severability clause, there is no court option. I think you pass the bill, and address any deficiencies that arise during a future legislative session.

    Posted by: searunner | Jun 24, 2011 6:20:12 PM

  21. Thanks for a very clear explanation of what is going on, Ari! If it were obvious how laws would be interpreted, we wouldn't need judicial review by the courts. You are right to point out these potential pitfalls, though they may never come to pass.

    The whole religious exemption issue is completely unnecessary anyway. Nobody has ever forced the Catholic Church to solemnize the marriage of a divorcee, yet that requires no explicit religious exemption. The only thing this can lead to is continued discrimination against same-sex couples in public services such as hospitals and adoption.

    Posted by: Mike | Jun 24, 2011 6:22:41 PM

  22. Sorting it out in courts is the reason why the severability clause is concerning. You can't "sort" it out. If one provision is thrown out, so is marriage. Though hopefully they can amend later after some of these idiot republicans are tossed out.

    I think once it happens, you can work it out later through legislative means. It's more important to get marriage up and running so people can see the sky isn't going to fall.

    Posted by: Sam | Jun 24, 2011 6:23:33 PM

  23. Ari, do you think the situation in California, with 18,000 married same-sex couples making an absurdity of the crazy-quilt of laws and statuses had any significant effect on the favorable federal court ruling on Prop. 8?

    Because I'm thinking a similar situation could end up happening in New York, if the marriage equality law is struck down in its entirety because of enshrined bigotry protections once umpteen tens of thousands of same-sex couples have already married.

    I'd rather the law stay in place, but not at the cost of allowing unconstitutional personal bigotry to run rampant in (New York) society against gays and lesbians and trans folk. To me, that makes the cure worse than the sickness.

    Posted by: Zlick | Jun 24, 2011 6:26:41 PM

  24. thanks for your comments, all. in response to some comments about the hospital visitation and president obama's rule. first, hospital visitation isn't the only possible issue. it is simply the one i chose as an example to lay out one scenario. in any event, there is also a new your public health law that requires ALL hospitals, not just nonreligious ones, to grant visitation. so, it is conceivable that this could set up a conflict. and here is where severability could become a problem. if this particular exemption goes down because of the other ny health law and an interpretation of the NY state constitution, the entire thing could go down.

    but, before you worry, keep this in mind. this scenario is UNLIKELY. most hospitals don't run around violating rights, even religious ones. they are doctors first. second, severability is not really sacrosanct. as a longtime reader reminded me from his Fed Courts class, SCOTUS has taken it upon itself to sever even where there have been nonseverability clauses. it all has to do with rationality after the severing.

    so, dont worry. THIS IS A GREAT DAY!

    Posted by: Ari | Jun 24, 2011 6:28:26 PM

  25. oh and thanks for the support, everyone. but, im a big boy, i can handle those who dont show respect. i always strive to show respect in return, though.

    Posted by: Ari | Jun 24, 2011 6:29:13 PM

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