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Culhane: Analysis (and Celebration!) of the NY Marriage Equality Law

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 30 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: Sen. 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.

John Culhane recently calculated that he could get to work from the closest point in NY State – his childhood home town of Pearl River – in two hours, forty-five minutes. But if he spent all that time commuting, he wouldn’t be able to write stuff like this, these, or these.
  1. coxhere
    June 25th, 2011 at 12:25 | #1

    Does this keep the archbishop of NYC from becoming cardinal-ed? I’ve not yet read that he committed suicide. I’ve also not yet read regarding an upswing in natural disasters. Maybe hurricanes, volcanoes, famines, floods (etc.) are waiting for the 30 days just as those who want to experience marriage equality wait.

  2. June 25th, 2011 at 13:11 | #2

    The question I had about the exemptions had more to do with my understanding of the New Jersy case as involving government subsidised business. Do these exemptions alow for discrimination if the orgnization in question recieves government funding to provide public service? I’ve always felt that was the reasonable place to draw the line.

    In the meantime, congrats New York!! Happy Pride!!

  3. June 25th, 2011 at 13:37 | #3

    First, I’ve been smiling all morning down here in Baltimore. Yay, NY! 🙂

    Second, my position evolved regarding exemptions (one of my fundamental misunderstandings at the time was that they were attaching them to marriage and not ENDA laws). Regardless, I can think of only a handful of “real life” situations in NY in which a same-gender couple couldn’t find some alternative hall or florist or caterer, and it *might* happen out in the country side, upstate. Maybe.

    Also, as we saw in Massachusetts, the real-life, practical “actions of objection” to same-sex marriage fall away pretty quickly after a population is forced to deal with the *reality* of same-sex marriage, which is pretty benign. In other words, after a year or so, most individual New Yorkers–even religious ones–will probably give in and service people involved in same-gender marriage ceremonies. Why? Because it just so quickly becomes obvious how these marriages have no bad effects on religion, children, society, preventing disease, their dog’s health, or anything else practical or real.

    Organizations? That’s a whole other can of worms. But individuals come around within a year or two of legalization.

  4. June 25th, 2011 at 13:59 | #4

    And it’s about time is right.

    It was a tough fight and there for a moment I thought that it was going to be a big fat NO. But just a few votes later and it was a YES and now those of us in NY state that want to marry our partners can and that’s a good thing. Anything else that didn’t get pushed through along side the bill is no big loss, we can still fight for those things in time.

  5. wahoo
    June 25th, 2011 at 14:03 | #5

    Haha was going to comment but you took the words right outta my mouth Gerry. Well put, and congrats to NY from sunny AZ.

  6. RuralGay
    June 25th, 2011 at 17:16 | #6

    Exemptions? No problem! The Wedding Industry is full of GLBT-run/friendly businesses. Caterers, photographers, florists, stylists, Bed & Breakfast owners, GLBT churches. Who do you think does all the hetero weddings?

  7. bigp202
    June 25th, 2011 at 17:34 | #7

    So happy and loving this. Hoping this will start the domino effect nation wide. I know this is immature, but for fun go on the fox news site and tell them how happy you are! lol, Im sorry but its quite entertaining to see how furious they get. Score for us!

  8. slimstar
    June 25th, 2011 at 19:00 | #8

    Hmmm….. does the “religious exemption” in NY now mean that gay-owned businesses connected to churches can discriminate against straight people who want to “flaunt” their marriages and lifestyle?

  9. June 25th, 2011 at 20:24 | #9

    I can honestly say this is the greatest day of my luife. 😀 Now my wonderful and oh so gorgeous fiance and I acan be wed within our home of NY state instead of traveling anywhere else. Thank goodness for open mindedness. Equlity and best wishes for everyone. <3

  10. June 26th, 2011 at 01:43 | #10

    What the NY State Senate did not do was make a change in the bill that would make it illegal for out of state people to get married. Once they do that they can then go to their own state and file a lawsuit to get this marriage recognized. The NY State Senate was so concerned about the religious tenants that they forgot about out of state residents. I think that is the strongest possiblitiy for victory for the continuation of Marriage Equiality outside of NY.I seriously doubt the Senate will suddenly realize this and make an attempt to make the change for out of state residents. They are tired of this and they probably don’t have enough votes to even get it passed in the Assembly.

  11. June 26th, 2011 at 04:16 | #11

    Sorry, but I guess I hit the keyboard in a fashion that prematurely sent my comment. So, I’ll repeat…..I wish to offer my congratulations on achieving constitutional equality. I know the LGBT citizens of Canada share in your joy. I remember the joy we felt when marital equality got final royal assent. (I must admit, however, to being a tad disappointed that they didn’t make SS nuptials compulsory….LOL). Wishing you the best Pride celebrations in New York’s history. You richly deserve it.Love ya!!

  12. GayIthacan
    June 26th, 2011 at 04:18 | #12

    John:

    actually, I think you miss an important boat here.

    The ‘exemptions’ are not really aimed directly at participation in or recognition of homosexual marriages per se – but are intended to shield religious ADOPTIONA GENCIES from having to recognize same-sex marriages in dealing with ADOPTION applications – which is another matter entirely – and which is a sticking point that has led Catholic agencies in severa; states (and D.C.) to cease adoptions altogether through lost court rulings.

    It is THIS particular activity that is going to have to challenged in court (and overturned, as will the inane ‘unseverability clause as well.)

    I have no problem with private businesses with no tax-exempt status choosing to do business with whomever they like – but in state matters or matters of adoption, then existing statutes are clear and enforceable.

  13. June 26th, 2011 at 22:00 | #13

    GayIthacan: I don’t read the language of the religious exemptions law as you do. It does grant some leeway to religious organizations outside of “marriage,” but they aren’t broad enough to cover adoption agencies, as I read the law.
    If you have information about what the legislators agreed to, please let me know. The whole thing has been shrouded in mystery – which isn’t good, whichever side of the debate one favors.

  14. DaveW
    June 27th, 2011 at 09:03 | #14

    I see some think exemptions are “reasonable” and even non religious private businesses should be allowed to discriminate.

    I think those of you that feel that way should rethink your positions. If you adopt a black child, do you want it ok for someone to refuse to serve her a meal because of her race?

    John, please consider in a further post how the exemptions can be challenged. You say they mean someone cannot be sued…can we challenge the law itself, after the dust settles, only in part of course, to get rid of the free passes to discriminate?

    Regardless of which group we are speaking, our society should have no room for discrimination.

    Like the Catholic upstate senator who decided the law is smarter than his religion, at some point he must see what is wrong with that and in life, not just his public service, follow what is right, vs. his religion.

    I suspect fair minded people like him have or will give up the ridiculous faith at some point…there is no way to reconcile the too. The “very catholic” public face he puts on could likely be a front. It is with very many I talk to.

  15. Jessica K
    June 30th, 2011 at 18:27 | #15

    John, While Senator Tom Duane did run past his time limit it was oh-so refreshing to see the homophobe Diaz get repeatedly cut short by the senator that refused to yield more time to him their by cutting short his homophobic triad against us. The “How could he do that to me” look on hid face was beyond priceless!

  16. SteveHansen
    July 5th, 2011 at 07:15 | #16

    A serious question — Suppose a church buys ONE SHARE in a company that owns or operates hotels, such as Hilton or Holiday Inn. Does that ONE SHARE establish enough of an ownership by the church, that the entire public company should be exempt from nondiscrimination statutes?

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