Culhane: Marriage equality is rising
It’s all marriage, all the time. I can’t recall a similarly brief period of time that was this chockfull of news items so relevant to the struggle for marriage equality – and so universally positive. What follows is a summary of each, and a general conclusion.
I. New York on the Cusp of Marriage Equality, but with Religious Exemptions
On Tuesday, N.Y. Governor Andrew Cuomo did what we’d increasingly expected him to do: submitted a marriage equality bill to the legislature. It looks very likely to pass, probably tomorrow. (As of this writing, 31 of the 32 senators needed for passage had committed their votes.) There are two significant stories here; both are likely to get lost in the celebration.
First, the victory in New York really isn’t about the legal right to marry. As I’ve written before, New York already recognizes same-sex marriages celebrated in other states – and there are several good choices within an easy drive of many parts of New York (Canada, Connecticut, and Vermont, for example).
No, it’s mostly about the highly contested meaning of marriage. When the state passes the law, it be putting the force of law behind this statement: “We value your relationship as much as those of your straight neighbors.”
Of course, people disagree about whether this is a good thing or a bad one, but no one really disputes that a legislative decree of marriage equality is much different from the grudging acceptance of what happens in neighboring states. Because it’s the meaning of marriage, as much as its legal incidents, that matter.
Second, it seems evident that the votes needed to nudge the measure up to the magic number were secured by enshrining into the law certain protections for religious and other “benevolent” organizations. But the protections really don’t amount to much.
Let me start by situating the possible range of religious “protections” along a continuum. At one end are the protections that are guaranteed by the U.S. Constitution: no religious organization can be compelled to marry any couple if doing so violates their tenets.
At the other end are the kinds of protections that a group of legal academics has been trying to impale into marriage equality laws for years, so far – and thankfully – unsuccessfully. These ungovernable exemptions would protect any business owner who objected to, well, anything, about a same-sex wedding: delivering flowers; taking photos; putting up wedding guests overnight, and so on. They could opt out of all of it, without penalty.
While it seemed as though at least one Republican Senator was holding out for the broad exemptions mentioned above, in fact the bill submitted provides nothing of the kind. Instead, it comes out at a mid-point between the two extremes: It allows religious organizations, as well as charitable ones, to refuse to provide any accommodations for same-sex weddings.
It goes further, too, exempting such groups from the public accommodations law that would otherwise prohibit discrimination in renting out of any of the facilities they own and operate in connection with the solemnization or celebration of same-sex wedding. The law permits such organizations not only from refusing to rent out space for the wedding itself, but also for all events “related to” our marriages. It’s possible to read this language as allowing, say, the Knights of Columbus to deny overnight accommodation in any facility it might otherwise rent to anyone coming into town for a “gay wedding.”
It’s not surprising that some have characterized the protections as “strong.”
But, as this story points out, those exemptions are already in the state’s public accommodations law. So this doesn’t do anything new, or anything worse, and the language seems to have been added mostly to provide a covering fig leaf to those Republicans who want to be able to vote for the measure while assuring their religious constituents that they protected their freedoms.
I think these carve-outs to the public accommodations law are too broad. But that’s an argument for another forum, not directly related to marriage. They can already decline to rent their spaces to us, folks. We’re not losing anything here, as far as I can tell.
So get your noisemakers ready, New York! I want to hear you all the way down here in Philadelphia.
II. Inane Recusal Motion Slapped Down
At about the same time I was reading about Governor Cuomo’s action, I learned that federal district court Judge Ware ruled that Judge Walker – the gay judge who presided over the Prop 8 trial – had acted properly in declining to recuse himself because of his supposed interest in the case. (Adam Bink has comprehensive coverage, and the decision itself, over at Prop 8 Trial Tracker.)
There’s some soaring language in the judge’s opinion about how we all need to believe that each of us can transcend our own personal circumstances and vote in accordance with deeper principles of equality.
No, I don’t believe we can do that, either: But Judge Ware is quite right in saying that if personal circumstances are enough to disqualify us, nothing could ever get done.
Something more is needed for recusal, and the opponents – who didn’t have any good arguments at trial – had nothing more here than an effort to make Judge Walker seem incapable of doing his job. In fact, though, they didn’t do theirs, as underscored by their obsessive efforts to keep videotapes of the trial from ever seeing the light of day . (Expect an appeal of this decision, though, as well. Justice grinds…very…slowly….)
III. And by the way….
Almost unnoticed was the decision by a federal bankruptcy court – also in California – finding the Defense of Marriage Act unconstitutional as applied to a legally married gay couple who were seeking to file a joint petition in bankruptcy.
The decision was signed by almost all of the judges sitting on that court, and the decision really skewers DOMA so expertly that you have to wonder how an appellate court – and, pointedly, the Supreme Court – can defend the law. (What purpose is furthered by not permitting certain legally married couples — the gay ones! — to file a joint petition?, the court wondered.)
IV. What Does It All Mean?
That we’re winning, of course.
Widener law professor John Culhane’s book, Reconsidering Law and Policy Debates: A Public Health Perspective is available on Amazon. He is working on a book on civil unions. Contact him if you’d like your story told (no matter what legal status your relationship does, or does not, have).