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.