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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 365gay.com 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 very.big.deal.

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.

Swimming to Maryland

February 10th, 2011 No comments

…narratively speaking, that’s what today’s 365gay column does. I connect a flap over a Letter to the Editor of SWIMMER Magazine to the push for religious exemptions to the marriage equality bill being considered in Maryland.

How? Read the thing.

National Legal Panel at Equality Forum: Opening Wide for a Fire Hose of Information

April 29th, 2010 No comments

Did Lambda Legal’s Executive Director, Kevin Cathcart, really “start the LGBT movement for legal rights,” as National Law Panel moderator Brad Sears playfully suggested at the opening of last night’s Equality Forum event?

If he didn’t, he certainly has a deep understanding of what most people think of as the legal “movement” – the litigation that’s been waged for the past several decades in an effort to give LGBT people liberty and equality. Cathcart and Sears, who is Executive Director of the Williams Institute, the LGBT think tank at UCLA School of Law, were half of a predictably stellarly credentialed and excellent panel that’s always a well-attended highlight of Equality Forum. (I’d guess there were easily 100 people present for the discussion).

Sears, who certainly could have added much of substance himself, rarely used his prerogative to do so and instead devoted himself to effective moderating. On the one occasion that he stepped out of role, it was to commend the Obama Administration for “taking a chip out of DOMA” by making a real effort at counting LGBT households in the current census.

Cathcart, of course, focused mostly on the impact litigation that Lambda currently has underway. Among the highlights is a recently filed case in New Jersey, asking the state’s supreme court to declare that the civil union compromise they had permitted several years ago doesn’t confer true equality, and that full marriage rights are therefore needed.  There’s also a case in the court of appeals asking whether the DC marriage equality law can be placed on the ballot, and another in Hawaii asking the court to recognize civil unions for LGBT couples (since a constitutional amendment in that state prohibits full marriage equality).

During a second round of questions focusing on emerging issues, Cathcart found himself in a good mood after yesterday’s oral argument before the US. Supreme Court in Doe v. Reed, in which the losing side in the recent Washington State ballot initiative to remove full domestic partnership rights for gay couples sought to keep private the signatures on the ballot petitions.

“Butch up!”, Cathcart said in summarizing “Justice” Scalia’s reaction to the side that sought privacy. Politics is rough and tumble, and if you’re signing ballot petitions, you should expect some criticism. No big deal.

In this woe-is-us context, Cathcart spent some time dissecting the anti-equality force’s latest strategy, which is to argue that they are the ones being discriminated against and harassed,  and seeking to turn us into the aggressors. He aptly summarized this tactic as an effort to “turn around the facts of real life.”

James Esseks, who is Director of the ACLU’s LGBT and AIDS Project, summarized his work on challenging foster and adoption bans in Florida and Arkansas, and noted that it’s important to win these cases on constitutional grounds so that other legislatures don’t get the idea that these kinds of pernicious laws can work.

He then spent some time on the very hot case of Christian Legal Society v. Martinez, in which the University of California is pitted against CLS in a case that balances the equality interest of the LGBT (and non-believing) students excluded against CLS’s effort to keep them from full voting membership. (California stands with the excluded student by refusing to fully sponsor any group, including CLS, that discriminates.) Esseks’s worry – and mine – is that a decision favoring CLS could in principle, lead to the end of all anti-discrimination laws. Things look ominous in that case, although Esseks thought that the Court might find that the liberty and equality issues hadn’t been “well teed-up” and might punt the case back downfield (OK, not a very effective or comprehensible sports metaphor).

Esseks also mentioned the ACLU’s role in defending the vile Westboro Baptist Church in a case where the father of a soldier whose funeral was protested by these sociopaths had won a judgment for emotional distress. Soon, I’m going to write a post that might be titled: “How I Learned to Hate the First Amendment.” For now, I’ll just refer you to this excellent criticism of the way that freedom of speech has become a sort of secular religion. I don’t like it and I don’t buy it.

Toni Broaddus, who is the Executive Director of Equality Federation, which is described as a national network of more than 60 statea-based LGBT organizations, naturally focused on the level where much of the real action in marriage equality and non-discrimination has been taking place.

One of her sobering points is that it’s getting harder to pass LGBT legislation, like anti-discrimination laws, in part because the “easier” states have already been accounted for. She also noted that it’s been very tough to get gender identity protection passed as a “stand alone” – it works better when it’s folded into broader legislation for the entire LGBT community.  That lesson, she noted, was passed along to ENDA advocates, who belatedly saw the light and came to insist on protection for trans-people in this law, which, you may happen to know, still has not been enacted.

She also noted that LGBT legislation is increasingly building in broad religious exemptions, and that now such exemptions are global – notably in an Ohio law that says, quite directly, that “religious organizations may discriminate.” It perhaps goes without saying that such an exemption would be laughed at in the context of legislation protecting any other historically despised minority, but never mind.

There were also discussions of litigation challenging DOMA, the likelihood of ENDA passing this year (maybe), and a law that would repeal DOMA entirely (don’t hold your breath, but it does have more than 100 sponsors in the House).

I could go on (yes, there was still more), but that’s about enough for a blog post, don’t you think? I do want to close by saying that even though I teach law for a living, blog obsessively and now do a weekly column on legal issues of importance to our community, I always learn a great deal from this panel. There’s so much going on, and so many good people doing so much, that it’s hard to keep up. But that’s a good thing, right?

Religion, Assimilation, Vaccination

February 9th, 2010 1 comment

According to this story, an outbreak of mumps has occurred in counties just north of New York City, mostly in Orthodox (or Hasidic) Jewish communities, where parents routinely seek religious exemptions to vaccination requirements for their children. In total, about 1,000 kids (mostly adolescents) have been afflicted.

When I was a kid, we all came down with mumps, and more: measles, chicken pox, and so-called “German measles” (rubella) were the most common. Mostly, these were cause for missing a week or so of school, but nothing more. Yet all of these diseases are properly seen as deadly threats to the public’s health. Measles, which is particularly likely to spike in a population where a significant number go unvaccinated, routinely killed many hundreds of kids each year in the U.S. alone, caused about double that number of permanent brain injuries, and cost the health insurance system dearly through the many thousands of hospitalizations. Mumps, in addition to the quasi-endearing chipmunk cheeks we all had, was most often associated with deafness as a complication.

The outbreak sits at the confluence of two infuriating obstacles to vaccination: bad science and over-deference to religion. Apparently, the outbreak in the U.S. was an unwanted import from the U.K., where a mumps outbreak had spread to some 4,000 people. Vaccination exemptions are frighteningly common there, mostly because of a thoroughly refuted study that purported to show a link between vaccinations and autism. Indeed, the prominent British medical journal that had published the study, the Lancet, last week retracted it after a British medical panel concluded that the lead author had been unethical and had conflicts of interest. And a flood of other studies since that one had already disproven its autism-vaccination link.

Once mumps made its way into the U.S., the congregation Orthodox and Hasidic Jews proved fertile ground for its spread. One locus was an area within Rockland County, New York, where a large, insular community of Hasidic Jews lives. I grew up in Rockland (in a nearby town), and know the community. On a Saturday, we’d drive past the synagogue-going residents — all on foot, the men in simple black garb with a defining hairstyle, the women in long dresses with head covering. Quite an insular community, and one in which, (credible) rumor had it, the families didn’t pay property taxes on their homes (each being considered a holy place). So there’s one exception from general laws that they enjoyed.

I didn’t know until recently of this other exemption for vaccinations, and I don’t support either carve-out. (In my view, no church should be exempt from paying property tax in the first place. There’s another whole post there, but I digress.) Respecting religion doesn’t require subjecting the public to needless risk. Quite the contrary: Religion is honored when we find and protect a proper, separate space for it. But personal or congregational religious expressions should end where the interest of the general public — a secular interest — is imperilled. Thus, it’s hard to justify a ban on the burka in public spaces (compare, say, driving, if evidence showed that the compromise to peripheral vision was significant), but equally hard to justify allowing the adherents of any religious group to forego vaccination. It’s easy to forget the public health success story of vaccinations. This recent story on those confronting new challenges from polio, many decades after they were first afflicted, should be reminder enough — but probably won’t be.

What’s the public health threat if everyone else is vaccinated? First, there’s the threat to the unvaccinated children themselves. The state has an interest in them, too, and at least one state supreme court has held that this interest makes unconstitutional any non-medical exemption. Beyond that, the vaccinations are themselves not completely effective. Thus, even the vaccinated kids can come down with the illness in question; and some of them will if a sufficient number in the population is not vaccinated. So it’s not “just” a question of getting to decide what to do about your own child’s health, an issue that the state has an interest in anyway.

When they first enacted religious exemptions to vaccination requirements decades ago, states did do under duress: Congress tied recognition of such exemptions to federal funding. It’s time to wake up and repeal these laws before we undo this great public health accomplishment.

Robert Wright’s Idiosyncratic “God”

July 26th, 2009 No comments

Robert Wright, who’s been blogging over at the Daily Dish in Andrew Sullivan’s absence1, has inspired a thoughtful debate about religion and atheism. In his last post, “End Times,” he criticizes the “new atheists” who are “anti-theists” — both non-believers and anti-religion. This criticism may surprise some readers of The Evolution of God, Wright’s carefully reasoned (yet entertaining) book that, by his own account, gives a largely  “materialist” view of the history and possible future of religion. Here’s one particularly striking passage, which won’t exactly comfort the traditionally religious:

[A]ll told, the worldview I’m laying out amounts to a kind of good-news/bad-news joke for traditionalist Christians, Muslims, and Jews. The bad news is that the  god you thought was born perfect was in fact born imperfect. The good news is that this imperfect god isn’t really a god anyway, just a figment of the human imagination. Obviously, for the traditional believer, this all bad news.” (p. 213)

Wright’s problem with a certain stripe of atheism shouldn’t have surprised more careful readers, though. As Wright says in End Times, “it’s the ‘other five percent'” of his book that is a problem for atheists.

Is it really, though? In the Afterword to The Evolution of God, Wright constructs an idiosyncratic — and to me unpersuasive — case for a different, more personal God. “End Times” links to the argument; read it and decide for yourself. But for me, the most telling problem comes about midway through, when Wright, having acknowledged that the case for God isn’t really the same as the case for scientific faith in, say, electrons (there needs to be something like electrons to explain observable phenomena; that’s not true of God), makes a case for some idea of God, for some people. Here comes a long quote, necessary to do at least some justice to his point:

Can’t we pursue moral truth for the sake of moral truth? Do you really need God in order to sustain moral progress the way physicists need the electron in order to sustain scientific progress?

It depends on who “you” is. Some people can lead morally exemplary lives without the idea of God. Others need God—and not necessarily because they can lead a virtuous life only if they fear hell and long for heaven; often it’s because they can most readily lead a virtuous life if they think of moral truth as having some living embodiment. They need to feel that if they’re bad they’ll be disappointing some one and if they’re good they’ll be pleasing some one—and this one is the one whom, above all others, it is good to please and bad to disappoint.

This is hardly a surprising need. After all, the human moral equipment evolved in the context of human society, as a tool for navigating a social landscape; our moral sentiments are naturally activated with respect to other beings; we are “designed” by natural selection to be good out of obligation to others, for fear of the disapproval of others, in pursuit of the esteem of others. And for many people, carrying these human relations to the superhuman level works well. They are better people, and often happier people, thinking of a God who is aware of their daily struggle and offers solace or affirmation or reprimand; they can best stay aligned with the moral axis of the universe by thanking God, asking God to help them stay righteous, seeking forgiveness from God for their lapses. It’s nice that some people can be paragons of virtue without this kind of help, but in a way it’s surprising; the natural human condition is to ground your moral life in the existence of other beings, and the more ubiquitous the beings, the firmer the ground.

As I said, this Afterword — this entire book — deserve to be read. But for me, this desire, or need, to please some(abstract)one else as the basis for belief is both odd and bit distasteful. It moves away from morality and virtue for its own sake, and more to the point, from ethical behavior in relation to other people. I see the flip side of “carrying these human relations to the superhuman level” — doing so might place the approval of this absent deity ahead of that of real people with whom we have important, loving relationships. (Maybe this would be a better idea.)

Wright closes with an eloquent synthesis of love, truth, and God. But read closely and you’ll see that God can be read out of the equation. Indeed, Wright’s entire argument for some kind of “God” isn’t a logical one with a metaphysical core, but a practical one. If this is the best defense of God there is (and it’s a pretty good one), atheists should feel pretty comfortable.

Comfortable, but not smug. The tenets of religion can’t be proved one way or the other, and belief in some conception of God is a source of great comfort, kindness, and social cohesion for many. I’ve tried to keep this perspective in mind as I’ve started to prepare my week of posts (starting Monday, August 3) on religious exemptions to civil rights laws (especially regarding gay rights, and most especially as applied to gay marriages). But I recognize that I have a dog in this fight.

  1. He’s just returned.