About the religious protections in the NY same-sex marriage bill.

[MineralMan]

I've been thinking about the parts of the bill that make it possible for religious people and organizations to refuse to perform these marriages. It was written in a way that assures that if those provisions are negated by a court, the whole bill is lost. That was causing a lot of people to worry. I don't think there is any need for worry on that account.

I think it was written that way to prevent those in support of same-sex marriage from selectively getting those provisions tossed by a court. It's a way for the Republicans to make sure that those provisions will stand. I can't imagine that any group will challenge the bill on that basis, so I think it's safe.

Of course, the provisions were unnecessary, since nobody can be forced to perform marriage ceremonies or to allow their facilities to be used. That's been the case all along. Churches have always had the right to refuse to marry any couple, for whatever reason. The Catholic Church does it all the time. There are so many other ways to get married than in one, specific church and by one specific minister that there's no real reason for a challenge.

That's how I see it, anyhow.

[yardwork]

1. Reserving church-owned property for some people but not everybody is unconstitutional.

That's the logic that allowed Jim Crow laws in the south for so long. It's wrong. The fact that New York has plenty of secular venues for gay couples to choose does not negate the fact that that provision is wrong.

I guess that sooner or later somebody will challenge it.

Edited to add - we're not talking about sacred spaces. We're talking about church-owned parks and other recreational spaces that churches routinely rent for secular use.

[MineralMan]

3. Actually, the First Amendment pretty much protects

churches from serving people they don't want to serve. There are conflicting rights in play. Churches have been doing this for years, and it's extremely unlikely that will change. No challenge on that basis would ever succeed in court. Churches are protected in believing what they believe. You wouldn't expect, for example, a Catholic church to perform a wedding for a Muslim couple, and the law would not force them to. There are many things churches are protected against being forced to do, like pay property taxes on their buildings. It's all part of the separation of church and state. It's all very well supported by legal precedent.

Besides, who would want to get married in a place that didn't want to marry you?

[yardwork]

5. I think that you are missing my point. See my post downthread.

Edited to add - I'm talking about church-owned property like waterfront parks, meeting halls, etc. Secular spaces. I predict that sooner or later there will be a challenge to this when a gay couple is refused the right to rent a secular space owned by a church.

[MineralMan]

10. Thanks for expanding.

Personally, I think it would be foolish to challenge this. It would be the very definition of cutting off one's nose to spite one's face.

A successful challenge would throw out the entire bill, thus ending the ability to marry. That would be foolish. Seriously foolish. Just my opinion.

[yardwork]

39. Well, I don't agree that it would foolish. Constitutional challenges aren't foolish.

Personally, I don't live in New York, don't plan to get married, and don't plan to test the new law by asking to rent a space owned by a church.

This issue isn't going to come up for most gay people who rush to get married in New York. Most of them are going to find a clergyman who is very happy to solemnize their marriage in some beautiful spot rented by a company or organization or small business owner who is very happy to provide the venue. Some churches already celebrate marriages for gay couples and more will follow.

The problem will come in if there are spaces owned by churches who rent them to everybody but gay couples. Say, the Catholic Church owns a lake-side park that they rent to all kinds of people for all kinds of events - family reunions, graduation parties, weddings held by all kinds of denominations. Then a gay couple comes along and asks to rent the park for their wedding, bringing their own clergy, not asking the Catholic Church to do anything but rent them the space just like the church did for the Jewish couple who got married there last week, and the non-believers who had the ceremony where they wrote their own vows the week before, and the Baptist family reunion the week before.... If gay people are the only ones excluded then that is clearly discriminatory and it will be challenged, and should be challenged.

[dipsydoodle]

6. You edited that in good time

I was about to say does that mean Synagogues can't refuse to conduct Catholic weddings.

[yardwork]

7. I realized that I wasn't being clear.

[Mz Pip]

11. but would a Catholic Church

refuse to rent its hall or garden to a Jewish couple for a reception? The Church wouldn't perform the wedding but I doubt it would object to a reception being held. I can see Churches being really selective about this.

[MineralMan]

12. Good question, but it's not really enough

reason to challenge the bill and have the whole thing thrown out. Lots of halls around for weddings and receptions.

That's why the provisions were included the way they were. I believe the right to marry trumps the smaller issue to the extent that nobody will challenge those provisions. Why on earth would someone challenge and risk losing the whole thing?

I agree that it's unfair, but not as unfair as being unable to marry. I wouldn't give up the more important thing for the less important thing. But that's just me.

[Mz Pip]

19. I agree it shouldn't be worth the risk

of having the bill tossed. I certainly wouldn't want to have a reception at a place where bigotry is status quo.

But I do hope no one challenges this. There are people who just like to fight. The courts are full of lawsuits that make you want to scratch your head.

[classof56]

2. Good points, MM

Not long ago an acquaintance of mine had her pastor refuse to perform her ceremony because her husband-to-be wasn't "saved". Almost 44 years ago, my spouse and I were married by a justice of the peace. And we're still married! :shrug: Go figure...

Not sure what my point is, except that the big church/married by the clergy thing is 'way overblown and has nothing to do with the success or failure of a marriage. I'm relieved that same-sex unions are now legal in so many states, and given the divorce rate among heterosexuals, I think those who are opposed should now sit down, shut up and work on their own unions.

Tired Old Cynic

[yardwork]

4. There are plenty of churches that perform same-sex marriages. Finding them is no problem.

Nobody wants to force churches to perform religious ceremonies. That has never been the issue or even a barrier. There are plenty of clergy who are happy to perform marriages for gay couples. Happens all the time. The problem has been that the government doesn't recognize those unions as legal.

The provision that is of concern in New York is the one that allows churches to disciminate in renting their property. Churches own a lot of property that is routinely rented to non-church members for events. Allowing those churches - already tax-exempt - to disciminate against gay people is clearly unconstitutional. It's like reserving water fountains for whites only.

[dipsydoodle]

8. like reserving water fountains for whites only ?

That is an offensive comparison.

[Name removed]

22. Deleted message

Message removed by moderator. Click here to review the message board rules.

[dipsydoodle]

31. Cute move which doesn't wash.

Stock response to an issue which doesn't bear any comparison whatsoever.

[yardwork]

40. Excuse me. Why was my post offensive?

What do you mean by saying that these issues "bear no comparison whatsoever?"

[yardwork]

37. How so?

[quaker bill]

43. Why would one want to get married

in a church that does not welcome them as equals?

Making their discrimination illegal does not mean they would become welcoming. It would seem a curious choice to me to get married in such an environment. A wedding should be a celebration, not a protest.

[MineralMan]

9. I see what you're saying. You may be right.

In that case, though, the provisions should still prevent challenges from occurring, since that would defeat the entire law. Which is what I said. The reason it's in there the way it is is to keep the provisions from being challenged. It's a trade-off. I say that the ability to marry pretty much trumps the church's ability to keep you from doing it in a building they own. I can't imagine that anyone would seriously consider a challenge. It wouldn't make sense. I don't think it would succeed, either.

I'm an atheist. Frankly, I'd like to see the churches stripped of all those protections. I doubt it will happen, though.

[joshcryer]

14. Oh, no, there will be a challenge, surely. But it will fail on First Amendment grounds instantly.

Religion is not the same as race or sexual orientation whatsoever. It, almost ironically (and I understand why you're an atheist on this point), by its very nature is discriminatory. And our First Amendment has given us the right to be discriminatory on those grounds.

Religious discrimination is a right.

[MineralMan]

15. Yes, most likely it would fail on those grounds. Lots of precedent

out there. I don't think a challenge will come, though. It would just be foolish.

[joshcryer]

18. Hmm, I did some digging and it's not so clear. Apparently a Lesbian couple sued, and won:

http://thecoaster.net/wordpress/2009/01/07/court-rules-for-ocean-grove-gay-couple/

However, Ocean Grove lost their tax exempt status on that particularly property: http://www.nytimes.com/2007/09/18/nyregion/18grove.html

I have not read the full ruling but it may in fact be that they found that it was a "sufficiently public place" that religious "ownership" doesn't qualify.

I still think my "loophole" will work, because all one has to do is mandate that property owned by the Church must be covered by clergy.

[yardwork]

38. Who is going to do that mandate? The churches? What will require them to do so?

As I've said, nobody is questioning the right of religious organizations to reserve their religious ceremonies for followers. No problem with that.

The problem comes in when churches own property that they rent out to non-members. Say it's a waterfront park owned by the Catholic Church where lots of people get married - Jewish people, non-believers, Baptists, etc. Priests aren't asked to officiate. The Church simply rents out this property to anybody who asks - except gay people. Gay people are the only ones denied. That is clearly discriminatory. If that starts happening in New York, then I predict that there will be challenges.

[joshcryer]

13. This will be trivial to circumvent, all a Church has to do is mandate a clergyman...

...to be present, either for pre-or-after marriage events, and not rent out services to individuals if they are not intending to use those services for marriage specifically. Once a clergyman refuses to do so (since he would be present for all marriage activities up to and including solemnization) then he is invoking the clause and the Church itself is immune from civil suits.

This is so easy to get around I believe that the OP is correct that it will never happen.

There may be a tiff here or there with a couple that wants to make money off of a Church but the lawyers will make the loophole happen very quickly.

[joshcryer]

24. Addendum: looks more like if a Church uses facilities for non-religious related activities...

...or allows them to be used in that manner, then they're shit out of luck.

Frankly that doesn't particularly bother me. They have their tax exempt status because they're religious, not because they're entertainers or service providers. If people sue Churches who are using their facilities for generic purposes, and win, I actually don't give a shit.

The wording in the law itself will not cover those who use their facilities in a public, generic manner. It only covers clergy, and it will force Churches to use their facilities with the presence of Clergy.

[yardwork]

42. That sound reassuring. If that is the case, then there may be no problems.

[Chan790]

47. I see your point...

but I think you're more likely to see those discriminations entrenched in other ways that would withstand legal scrutiny.

If this law were stricken for this reason after it had been in effect for some time, those churches would face the very real risk of the law being re-passed by the legislature in short order without the religious exemption...they really don't want that.

How might it withstand scrutiny? It would likely be upheld by the courts if they discriminate in exactly the same way against everybody. ie. "You can only use the space if you sign this declaration that you uphold the values of this sect, homosexuality is an abomination, abortion is a sin and the purpose of marriage is children naturally conceived through intercourse within the bonds of marriage." Such a declaration is unenforceable anyways but how many gay couples (or atheists or people who believe in the equality of women) would agree to sign that? The only problem would occur if they signed it and the church refused them the use of the space anyways. Such a refusal might invalidate other legal protections of the church in question so they'd probably grudgingly just let them use the space as long as it wasn't, you know, an actual church.

[BattyDem]

16. I don't understand how they can write a law that says ...

if the courts strike down PART of it, than the whole thing is null and void. How is THAT provision legal or constitutional? Since when are laws all or nothing? They vote on a bill, it gets signed into law by the Governor and, if necessary, the courts decide whether or not all or part of the bill is constitutional. That's the way it works. By adding the "if-part-of-it-is-declared-unconstitutional-than-the-rights-are-automatically-revoked" clause, aren't they interfering in the judicial process? Courts strike down parts of laws all the time, but the remaining parts of the law are still valid and if a legislature is unhappy about that, it's up to them to revisit the issue and vote on it again. They simply can't override a Governor's signature because a legal challenge didn't go their way. I don't get it. :shrug:


On edit: Doesn't it set a very dangerous precedent? Doesn't this open the door for certain political factions to intentionally add vaguely worded and/or possibly unconstitutional provisions into ANY bill (along with the "all-or-nothing" clause), so that the entire law will eventually be overturned?

[MineralMan]

17. That really depends on the state's constitution, really.

Apparently, NY allows such inclusions. I'm not an expert on NY state issues. However, I've seen bills like that. If one part is found unconstitutional under that state's law, the entire bill is thrown out. It's part of many states' process.

Remember that each state has its own constitution, so such provisions may be part of that state's constitution, independent of the US Constitution. As long as such a constitutional provision doesn't directly contradict the US constitution, it stands.

Such a thing is often used to squeeze unpleasant stuff into bills, I'm afraid. Legislation is sometimes an ugly process.

[BzaDem]

26. I could be wrong, but I think inseverability clauses are allowed in any bill regardless of the state

Constitution. They can certainly be placed in US Congressional acts.

An inseverability clause is simply a guide to legislative intent. It is equivalent to the legislature telling the court "we would not have passed this bill if we had known you would strike down a part of it." Likewise, a severability clause is like telling the court "we would have passed this bill EVEN if you struck down part of it." In a law that contains neither, the court looks more at the legislative history to make these determinations. For federal legislation at least, Supreme Court precedent says courts need to look to whether Congress would have enacted the bill absent the struck-down provision, in the legislative history (if there is no clause either way).

This inseverability clause is particularly odious -- threatening to withhold equal rights entirely if religious organizations aren't allowed to discriminate in whatever way they want. That's probably why the bill was delayed for a week -- my guess would be that Cuomo was trying to do everything to avoid putting such a clause in the bill. Unfortunately, however, the inseverability clause is legal (as you point out).

[MineralMan]

27. Could well be. I'm not an expert on this at all.

Clearly, though, it's legal in the case of this bill. Odious, but legal.

[BattyDem]

32. Thanks for the info.

:hi:

It never occurred to me that the state's constitution would allow the provision. Of course, different states have different rules. Silly me ... :blush:

That's why I love DU ... I always learn something! :)

[customerserviceguy]

36. This happens a lot more than you think

Non-severability clauses are important for getting the deal done in a lot of cases. It makes the sides less likely to litigate over what they could not accomplish through negotiation.

[BattyDem]

46. I never realized that.

It's the first time I ever recall hearing about that kind of clause. I guess it caught my attention because it's such a high-profile case. If that's what it took to secure the votes ... so be it. The important thing is that same-sex couples finally got the rights they deserve ... at least in NY! :)

[WolverineDG]

20. If someone is in the clergy, I don't have a problem with that

however, if that exemption extends & applies to court clerks who are public employees, well then, that is a problem & should not be allowed. If the clerk's religious objections are such that they refuse to issue marriage licenses to gay couples, then they should seek alternative employment.

dg

[MineralMan]

21. It doesn't extend to public employees.

It just doesn't.

[joshcryer]

25. Solemnization is distinct from signing paperwork.

Clerk's are not required to solemnize to their religious deity when stamping down the recognition of marriage.

[yardwork]

41. They tried to include a "conscience clause" that would have applied to public employees

but fortunately the law was passed without it.

[WolverineDG]

45. Good nt

[NNN0LHI]

23. Something as simple as not dropping cash into the basket regularly rules out a Catholic marriage

I know people who have tried and were turned down flat.

Don

[MineralMan]

29. Churches do as they please in these matters.

More's the pity.

[starroute]

28. Does it apply to anything beyond services or facilities?

I had the impression from one story I read that it would allow a business owner to refused to provide health insurance or medical leave for same-sex couples, but the story wasn't clearly enough written to tell for sure.

Does anybody know?

[MineralMan]

30. I didn't get that from my reading.

It seemed to be limited to the performance of services, etc. regarding the marriage itself, and didn't extend beyond that. However, I have not read the final form of the bill...just a previous iteration.

Edit to add: I cannot find a copy of the final version, but news stories say it is limited to religious organizations only. It may include things like adoption services and marriage counseling offered by religious organizations, as well. I'll have to wait until I can find a copy of the actual language, but it appears to be limited to religious organizations, not other business or secular concerns.

[EFerrari]

33. Religious protections were a way to give cover to legislators who wanted to vote yes.

Essentially a straw man, and a very smart move. The other side can feel as if they got something in the deal.

[Lydia Leftcoast]

34. Before gay marriage was even on the radar, religious institutions always had the right

to choose whom to perform wedding ceremonies for.

For example, when a Jewish-Gentile couple I know got married, they couldn't find a rabbi who would officiate, because all the ones they knew objected to mixed marriages. So they had a civil ceremony.

I don't know what the situation is now, but in the past, Catholic priests would not marry Catholic-Protestant couples unless the Protestant partner agreed to take instruction in Catholicism and raise any children resulting from the marriage as Catholics.

My father once refused to perform a wedding ceremony for a teenage couple, because he thought they were too young and immature.

So the law is not giving clergy any rights they didn't have before.

In all these cases, the couples would have the option of a civil ceremony.

[quaker bill]

44. Quakers

generally celebrate a marriage with couples that have some relationship to our community. The only time we have ever come close to saying no, the couple was heterosexual. They broke up during the clearness meetings, which answered the question at hand.

[customerserviceguy]

35. Here's why I think those provisions were put in there

Abortion has been a Federal right for nearly forty years now, and while there are attempts to chip away at the edges of it, there have been no serious frontal attacks that have gotten very far up the Federal court chain.

However, the new battleground over abortion is over who is allowed NOT to participate in it. When religious-based hospitals that have thrived for many, many decades get threatened with losing state and Federal funds if they refuse to go against their convictions, and when pharmacists lose licenses and jobs because of their beliefs, we see the type of religious exemption law that is part of the NY equal marriage bill.

These provisions are what would have been adopted if abortion law had evolved through the state legislatures, rather than just being mandated into law by the Supreme Court in 1973. If we want to avoid fighting over marriage equality for another four decades, then seeing it come from legislative action and citizen initiative will work better than court decisions, as we saw in Maine.

I love bacon, but I don't want to force the local halal and kosher butcher shops into providing it for me.