Posts Tagged ‘New York’

An End

September 30th, 2011 4 comments

My final column for 365gay is below. It’s an end, but not the end…I’ll continue blogging here, and watch this site for news about an arrangement with another site. Yet I’ll miss 365: It was a great source for news, and I developed a great working relationship with editor Jay Vanasco.

“One Last Salvo Against the Misuse of Religion:

My last column is kind of an angry one.

Once again, I’m compelled to write about the collision of religious beliefs and civil rights, and – as has become typical – the tension arises in a case involving marriage equality.

As this story details, the town clerk in the small village of Ledyard, New York, has unilaterally decided that she won’t issue marriage licenses to same-sex couples. So she now requires that all couples (gay and straight) make an appointment for her deputy (who seems to work part-time) to do the job that she’d previously done.

On the surface, this accommodation might look reasonable. The woman gets to honor her own religious beliefs, and now all couples are being treated equally. Everyone has to wait for an appointment. And in general, I support creative means of conflict resolution as long as they neither stigmatize a legally protected class nor cause undue inconvenience. If, say, there were several clerks working different lines in a large city and one objected to issuing marriage licenses to same-gender couples, an unobtrusive switch of clerks would bother no one.

Beyond that kind of practical accommodation, though, allowing this kind of  refusal would be a terrible mistake, and one that would sets very dangerous precedent. Consider this example:

State A passes a marriage equality law. The Attorney General’s religious beliefs are offended by the bill, and he decides that all marriage licenses issued to same-sex couples are without legal force. Of course, such an AG would likely be swiftly fired, or in any event overruled by a court. But until that happened, one might expect him to argue that he simply “couldn’t” do otherwise, as same-sex marriages were against God’s law.

But God’s law – whatever it might be in this case, and there’s no clear agreement among religions on this or any other issue – is beside the point. The AG has a civil law responsibility that he’s failing to discharge.

Much further down on the government food chain, the Ledyard clerk, one Rose Marie Belforti, is doing much the same thing. The similarity can be hard to see, because her refusal to comply with the law – unlike the AG’s – can be sidestepped. But in both cases, we have a public official deciding for themselves when and whether to recognize a law of general application. The AG wouldn’t be able to stay in office were he to insist on his own, law-defying interpretation of what God’s law requires; and the result should be no different here. If Belforti couldn’t figure out a way to do this behind the scenes, too bad for her.

And the consequences of allowing religious beliefs to interfere with clear civic responsibilities can’t be limited to the issue of same-sex marriage licenses. What if a clerk didn’t want to marry two people who’d been divorced? Who’d had sex before marriage? And what would those defending Ms. Belforti say about a judge who granted men, but not women, a unilateral divorce because of his belief that that Sharia law required that interpretation?

We expect judges to follow the prevailing law. We have the right to expect clerks to do the same.

I could respect Ms. Belforti if, like several other clerks with religious objections to same-sex marriages, she resigned from her job. But I have nothing but contempt for the rhetoric being put forward by the likes of Maggie Gallagher and Robbie George. Read this article, which details how the pair is trying to turn back marriage equality by appealing openly to the idea that religion should take precedence over equality. Gallagher likens New York state’s insistence on having its laws followed in the clerk cases to the dictates of Caesar, “forgetting” that the democratically elected legislature passed the marriage equality law. But the reference to this dictator is a way of making her point about the supposed religious persecutions.

George, co-author of the much-downloaded, but intellectually dishonest, article “What is Marriage?,” continues to rail against schools that teach about the existence of (let alone the positive results linked to)  families headed by gay and lesbian parents. It’s just too bad for parents who don’t want their children “indoctrinated” into this world, he says.

Worse, he “loathes” the “bad faith” of our “strategy” of demonizing people like Belforti  by deploying the “weapons” of anti-discrimination law. But to insist that validly enacted laws, like New York’s, be interpreted in a way that favors no religion over another is only to follow the rules of democracy itself. George and Gallagher are so sure of their own (rigidly Catholic) version of God that they fail to understand that the best way to respect religion is to insist on its separation from the civil, legal sphere.

For once religion is allowed to set the rules, there’s no guarantee that the faith chosen will be one either of them would endorse. It might even be Muslim.

I can’t end this column without a last goodbye to my faithful readers (some of whom I know by user name; others of whom simply read without weighing in). I’d love for you to follow me over to my own site, Word in Edgewise, where I promise to keep up the fight. (And I might soon be blogging for another site; you’ll have to go to WiE to find out if and where.) I hope to see some of you tonight! And a fond farewell to JV and JW. Thanks to both of you. Excelsior!

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law. He has edited and contributed to a book on “hot” legal and social issues, and just taped a show for The American Law Journal on the legal rights of unmarried cohabitants (gay and straight). It will be available for viewing on this website by late October. Follow him on Facebook and Twitter.

NY Passes Marriage Equality Law — With Strings (That I Can (Barely) Live With)

June 25th, 2011 No comments
Andrew Cuomo hands pens to legislators after signing the bill into law late Friday. | AP Photo

This will go up on soon, but since I don’t know when, I want to get this posted ASAP:

[Update: it’s now up. Here is the link.]

Marriage equality is coming to New York! The bill was signed within about an hour of its passage through the legislature, and marriage licenses will start issuing in thirty days.

It’s hard to write a column when all you want to do is scream and dance. I’m in Pennsylvania, not New York, but I grew up there and am still enough of a NY snob and realist to know that this is a

Only the more populous California rivals New York in legal and symbolic importance. The state’s financial and cultural clout are exported around the world. Now this news about marriage will be, too, and I expect other states and nations to use this development as powerful ammunition for their own marriage equality movements. Our opponents – especially the National Organization for Marriage – know this, too.

When they’re being honest with themselves, they also know that their tactics at best delay the inevitable. That defensive game just got a lot tougher, especially since it was Republicans that made the difference in the state senate: Senator Skelos, the majority leader, allowed the measure to come to a vote; and in the end four Republicans put the measure over the top.

Consider the two whose votes were declared only last night: Mark Grisanti, who represents the Buffalo-Niagara Falls area; and Steve Saland, from the beautiful Hudson Valley part of the state.

These are exactly the kind of measured, moderate voices that quietly voice the doom of the anti-equality effort. Saland has a reputation as a thoughtful (if dull) legislator, but he spoke with confidence and conviction about his vote, declaring that his emotional journey towards recognizing the dignity and equality of gay couples was now at its end. He knew, somehow, that his parents would be proud of him

It was Grisanti, though, who is going to have the Catholic-inflected NOM et al. scrambling for a new playbook. He’s a real Catholic (check out his bio to see how very Catholic he is), yet was, in the end, able to separate his religion from what he concluded the law must allow.

Both Saland and Grisanti, significantly, are lawyers. I know, I know – a law degree doesn’t confer infallibility. But when it comes to legal rights, any attorney should be able to articulate a reason to exclude a class of people from equality. And Grisanti said: “I cannot legally come up with an argument against same-sex marriage.”

Others have, though. It’s worth recalling that the New York Court of Appeals ruled in 2006 that the state could ban same-sex weddings, using some of the worst arguments you will ever see in a body of such stature. This win more than makes up for that serious misstep, and is more satisfying, in a way.

This brings me to the one part of the law about which I have serious reservations: the religious exemptions. I’m well aware that the bill wouldn’t have passed without them, so the question is: Was it worth it? Are the exemptions too strong? Are they justified? Or should we have waited for a better law, bearing in mind that this version of marriage equality is likely to be ferried from state to state, going forward?

On balance, I think the exemptions are tolerable – but just barely.

First, they’re not the broadest – and dumbest – exceptions that have been suggested by a small, seriously misguided, group of law professors. These folks lurch from state to state arguing that businesses should be able to refuse to cater, photograph, provide flowers for, or put up guests for same-sex weddings if their objection is based on religion

This has been, and will continue to be, a non-starter. Although ostensibly limited to transactions connected to the wedding, in fact the restriction is impossible to police and would result in the rollback of anti-discrimination protection in states that have worked so hard to get it.

But the exemptions that are in the bill remain troubling. They go beyond what the state law and the U.S. Constitution already require, which is that no religion is forced to solemnize any marriage that violates its tenets. Under the amendments – released, maddeningly, just hours before the vote – neither these religious organizations, nor any non-profit organizations they control, nor any other “benevolent association” (think Knights of Columbus) has to have anything at all to do with a same-sex wedding.

As a pointed example, the measure would foreclose a suit such as the one filed by a New Jersey couple denied use of a beach pavilion by the Methodist church that owned it. The facility was routinely rented out for all kinds of weddings, so one might think that the decision to enter the world of commerce means you have to take all comers.

Yes in New Jersey — but not in New York. A church, synagogue, or mosque, can spin off as many organizations as it wishes, and engage in whatever businesses it wishes, without having to get involved in anything to do with our weddings. They can’t be sued for their actions, and they can’t lose their tax-exempt status because of them. I prefer the New Jersey approach, which strips away the religious fig leaf from naked acts of commerce.

There are also provisions in the law designed to reassure religious organizations that marriage equality can’t be used as a sword to get them to provide housing, employment, or services to the LGBT community where doing so would be inconsistent with their basic message. But those protections are already in state law, so the law isn’t as troubling there. Or at least it’s not newly troubling.

One thing that the law seems to leave out is an exemption for adoption agencies affiliated with religious organizations (like Catholic Charities) that will not place kids in households headed by same-sex couples. This is a vexing question that deserves its own post (coming soon!).

Let me close by panning back out, away from the details of the law to the broader commitment to dignity and equality that it embodies. Openly gay and HIV+ Senator Tom Duane ran well past his allotted time to provide a brief history of the progress of our movement, culminating in this huge victory. Then he said: “Nothing is going to change about how we love or take care of each other.” It is just that the state is now going to recognize and support us in these efforts.

And it is about time.

Marriage Equality: Three Updates

June 16th, 2011 No comments

This has been such a busy week for marriage equality that I’ve had trouble keeping up. Over at 365gay, I look at these three developments (with big emphasis on the first):

New York seems poised to pass a marriage equality law. But it depends on whether the Republican leadership in the Senate will let the matter come to a vote. If it does, it will very likely pass. If it doesn’t, then the Republicans will seem more out-of-step that ever, in a state where the party has maintained its moderate cast over the years — even in the face of Tea Party mania.

A judge in California rejected the ridiculous challenge to Judge Walker’s Prop 8 decision, which was grounded in the outer-space argument that, because the judge was gay and in a long-term relationship, he should have recused himself. An appeal, of course, is planned. The Prop 8 proponents’ best best is to avoid the merits, as the trial — and the proponents’ obsessive insistence in keeping the trial videotape out of the public view — itself clearly showed.

Also in California, the bankruptcy court declared DOMA unconstitutional as applied to a case where a legally married same-sex couple sought to file a joint petition. Only married couples can do so, and under DOMA, a valid state law marriage is nonetheless not recognized at the federal level. Most of the judges (20 of 24) signed the order.

Happy reading!

Emboldened in Hawaii

January 19th, 2010 No comments

Are civil unions the compromise they’re touted as? Not according to this story from Hawaii, where religious anti-equality opponents repeatedly discussed the sanctity of marriage in opposing — a Hawaii civil unions bill! The rhetoric was almost entirely religious, even though the bill has nothing to do with religion, even nominally. Counter-protesters also invoked religion in arguing for the bill. What’s left to say at this point. Maybe these three points:

  • For some, religion is too powerful to allow even civil equality for same-sex couples. They don’t want to look at the lives of their gay neighbors.
  • These counter-demonstrations show the peril in relying on religious arguments in civil discourse. The question becomes: Whose religion?
  • I can’t help thinking that recent legislative victories from the anti-equality forces in New Jersey and New York have emboldened the other side.

Expect this fight to go on for awhile. And don’t expect the Supreme Court to put a quick end to it.

Valuing a Child’s Best Interest? (Part Two)

October 12th, 2009 No comments

A same-sex couple who adopted a boy in New York State were told by a Louisiana official that they couldn’t have the kid’s birth certificate amended to reflect who his legal parents are. (The child  had been born in Louisiana.) Unless that happens, though, the child can’t be added to one of the parents’ health insurance plans.

If any judgment of a sister state would seem an easy case for recognition under the “full faith and credit clause,” it would be adoptions. It’s hard to imagine that even a state that itself prohibits same-sex adoptions — a policy itself not attuned to the crying need for placing children in loving, stable homes — would declare itself to have a strong public interest against recognizing another state’s adoption decree. The decree can’t be undone, so the parents are legally ensconced. By refusing further recognition, as here, a state effectively declares itself indifferent to these kids.

Now, scarce federal judicial resources are being consumed as the state continues to defend its non-recognition policy. A lower court has already ruled against Louisiana, and the matter is now before the federal appellate court, which has just heard arguments in the case. Here‘s a good summary from the website Lambda Legal, which is representing the couple.

Again: How is this refusal to amend the birth certificate to reflect a valid adoption in a child’s best interest — even if such refusal were permissible under the U.S. Constitution’s “full faith and credit clause”?

It reminds me of the great extent that an Attorney General in Australia has been willing to go to in order to challenge two transgendered men’s request to amend their birth certificate to reflect their changed gender.  According to the AG, the request should only be granted if the men can prove they are no longer fertile as women. Why? The AG had only boilerplate blather in response. I guess there’s some fear of another Thomas Beatie, whose pregnancy stirred the alwayss-incredulous tabloids (and some mainstream media, as well). The Salon article on Beatie (linked above) contains thoughtful analysis of why this pregnancy so discomfitted so many people. The simplest reason: We  like our gender boundaries to remain clearly marked out. Beatie, with his masculine identity and appearance seemingly contradicted by his pregnancy, belies such clarity.

But shouldn’t public officials need a better reason for refusing to change a birth certificate in both of these cases? Once the public policy arguments are reduced to “it’s icky,” then where are we? And is this the kind of discretion public officials should get to exercise when it comes to intimate difficult family and personal decisions?