Same-sex marriage (SSM) in New York State
Marriage Equality Law: The religious exemptions,
and the strange case of Ethical Culture Societies
Acronyms and definitions:
- The acronym LGBT refers to lesbian, gay, bisexual, transgender, and transsexual persons.
- SSM refers to same-sex marriage.
- The term "homophobia" has multiple definitions. We define it in terms of any behavior that attempts to limit the human rights of LGB individuals.
In late 2011-JUN, the Marriage Equality Act had reached an impassed in the New York State Senate. Although the Senate was controlled by Republicans, there were an equal number of votes for and against the bill. One Democrat intended to vote against the bill and two Republicans intended to vote in favor.
The solution was to add additional clauses to the bill that would give an extra level of protection to religious institutions that wanted to continue actively discriminating against LGBT persons and in particular against loving, committed same-sex couples who wanted to marry. The end result was that the bill passed by a vote of 33 to 29. This was the first time in history that a predominately Republican state or federal legislative body passed a bill authorizing SSM.
The new clauses were largely redundent because faith groups were already sheltered by two levels of protections that allow them to freely discriminate against any group that they want to victimize or treat as inferior. For example:
- The First Amendment of the U.S. Constitution contains a "free exercise" clause: "Congress shall make no law...prohibiting the free exercise" of religion. This passage gives officials in churches, mosques, synagogues, etc. the absolute right to refuse membership, employment, ordination, baptism, marriage, etc. to individuals on any grounds. So, for example, The Church of Jesus Christ of Latter-day Saints (the main Mormon Church) could legally refuse to ordain men with African American ancestory, as it did before allegedly receiving an instruction from God to change their policy in 1978. The Roman Catholic Church, various Orthodox churches, and other conservative faith groups still refuse to ordain female clergy, no matter what their talents, abilities, experience, and qualifications are. Exemptions in legislation that grant permission to faith groups to discriminate in these ways are often called "religious carve outs."
- The New York legislature previously passed Human Rights Laws that require employers to refrain from discriminating on the basis of race, religion, gender, sexual orientation, etc. However, the legislation includes exemptions for religious institutions. The carve outs guarantee:
"... that religious institutions remain free to choose who may use their facilities and halls for marriage ceremonies and celebrations, to whom they rent their housing accommodations, or to whom they provide religious services, consistent with their religious principles." 1
Amendments to the Marriage Equality Act introduced:
- State Senator Greg Ball (R, Putnam County) introduced a religious carve-out that would confirm the Constitution's and the Human Rights Laws' protections to clergy, to anyone registered to conduct marriages, and to congregtations that wanted to discriminate against LGBT persons. Clause 2 extended the exemption to all tax exempt organizations in the state. Clause 3 extended the exemption to any individual or business with religious objections. The text reads:
"1) No clergy or other person authorized to conduct marriage ceremonies shall be required to do so against their beliefs or desire, whether religious or not.
2) No religious or tax exempt organizations shall be required to provide any services to which they object because of religious or other beliefs.
3) No house of worship, individual or business with religious objections, or tax exempt organizations shall be required to allow their property or services to be used for any function or purpose to which they object or have their tax exempt status challenged or removed because of failure to permit usage of their property for same sex ceremonies." 2
The amendment was not adopted. Even if it had been passed, it would almost certainly have never survived a constitutional challenge under the "equal protection" clause of the U.S. Constitution.
- In order to make the main bill more acceptable Republican senators, and to coax some to vote for it, the following amendment was introduced:
"§ 10-b. Religious exception.
1. Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for- profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision,
shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or result in any state or local government action to penalize, withhold benefits, or discriminate against such religious corporation, benevolent order, a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation.
2. Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to subdivision eleven of section two hundred ninety-six of the executive law, of any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.
3. Nothing in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under section three of article one of the constitution of the state of New York. ( Laws of 2011, Ch 96, § 1, effective July 24, 2011)
A key phrase in this section refers to "not-for- profit corporation operated, supervised, or controlled by a religious corporation ...". This would presumably include an adoption agency controlled by Catholic Charities. Since the Catholic Church regards a homosexual or bisexual orientation as being a disordered state, and considers sexual activity between two persons of the same gender to be potentially a mortal sin, Catholic adoption agencies generally have refused to consider same-sex couples -- even if married or in a civil union -- to be eligible for consideration to adopt children. In Illinois, Lutheran and Catholic adoption agencies have gone out of business rather than end their discrimination against same-sex couples. Earlier, a Catholic adoption agency in Massacusetts also closed down. Under this religious carve out, they will apparently be allowed to continue their discrimination in New York state.
Jennifer Vanasco, Editor in Chief of 365gay.com opposed what she referred to as "extreme religious 'carve outs'," that would give extend the freedom to discriminate against same-sex couples. She wrote:
"We have the right to adoption now. We are protected now. And we can marry in Massachusetts (etc.) and have it legally recognized in New York now.
A bill that narrows instead of expands our rights is unacceptable. And no matter how heartbreaking it is, we must say no. Marriage means a lot to us. And when I say "us," I mean me, personally, since I am engaged to a woman I love deeply and we are waiting on New York to get its act together to marry.
But it is not worth it if getting married in New York means that we will be newly discriminated against. It is not worth it to suddenly have to worry that any business -- every business -- in New York State could suddenly discriminate against us because we are a lesbian couple. No. That potential bill is a bad bill. It is not about compromise -- it is a backdoor to vicious segregation and discrimination. Marriage that is defined as a union of two committed people for their mutual love and support does not "redefine" marriage. You know what would 'redefine marriage'? A bill that makes it so that if you get married you have fewer civil rights than you had before. If anything killed marriage, it would be that. The gay marriage bill as it stands is a good one. But accepting one with exemptions that are too broad is not the way to go. If that's our only option, then no thank you. We'll vote the Republicans out of office and try again." 3
Fortunately, when the text of the religious carve outs were released to the public, they were not as extreme as Ms. Vanasco had feared. They only allow religiously based and religiously affilliated religious non-profits -- not every business and individual in the state -- to discriminate.
If current trends hold, public opinion over same-sex marriage may well follow a path similar to that of previous conflicts in the U.S. over other major human rights issues. Consider human slavery, allowing women the vote, allowing interracial marriage, etc. Decades after equality was won, subsequent generations branded people who resisted those changes as racists and sexists. These religious carve outs, and the religiously motivated discrimination that they allow, may well cause religious conservatives to be branded as homophobes, to the detriment of conservative faith groups. Most people may well not want to be associated with a racist, sexist or homophobic faith group.
Only time will tell whether religious groups will suffer membership loss and by how much. However, we do notice many recent articles in the media by faith groups and religious leaders concerned about being considered bigots in the future over the LGBT issue.
The curious case of Ethical Culture receiving special recognition & freedom to discriminate:
Domestic Relations Law §11 was amended to state:
"A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of
New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union; provided that no clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader shall be required to solemnize any marriage
when acting in his or her capacity under this subdivision. 1 (Emphasis not in the original)
Some apparently unaware individual apparently thought that Ethical Cultural societies in New York might not be considered to be a religous group because they do not teach the existence of a deity. So the amendment included a long run-on sentence that specifically allowed Ethical Cultural societies to be included as being permitted to freely discriminate.
The amusing factor here is that Ethical Culture societies are liberal groups that accept LGBT persons as full human beings deserving of equal acceptance and recognition. Anne Klaeysen, a leader of the New York Society for Ethical Culture wrote to the New York Times:
"The leaders of the Societies for Ethical Culture applaud the New York Legislature for approving, and Gov. Andrew M. Cuomo for signing, the law allowing all New Yorkers to marry whom they choose. While we are included in the list of those exempted from performing same-sex marriages, such 'protection' is neither needed nor wanted.
Ethical Culture’s leaders have long solemnized unions between loving and committed same-sex couples and now rejoice in the success of our hard-fought battle to make such unions legal." 4
One wonders whether New York State should require a minimum IQ level and educational attainment for potential legislators.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Joel R. Brandes, "New York's Marriage Equality Act," New York Divorce and Family Law Blog, 2011-JUN-27, at: http://brandeslaw.blogspot.com/
- "NY clerks might still refuse licenses even if gay marriage passes," Daily KOS community site, 2011-JUN-19, at: http://www.dailykos.com/
- Jennifer Vanasco, "If New Religious 'Carve Outs' Are Too Extreme, Do Not Pass NY Gay Marriage," Huffington Post, 2011-JUN-17, at:
- Anne Klaeysen, "New York Opens Door to Gay Weddings," New York Times Opinion Pages, 2011-JUN-27,
Copyright © 2011 by Ontario Consultants on Religious
Originally written: 2011-JUN-29
Latest update: 2011-JUN-29
Author: B.A. Robinson