#OnTheEdge

For those so inclined/interested/bemused/not yet tired of hearing about it…

The New York State Assembly has just introduced a series of amendments to the same-sex marriage bill. They are available here. The amendments were drafted during three-way consultations with Governor Cuomo (and his team), a select group of NY State Senate Republicans and Senate Democrats. Assembly Speaker Sheldon Silver, who seems like he has been Assembly speaker since the Taft Administration, is cool with the amendments. It will pass the Assembly, and one would imagine the amendments would not be introduced in the Assembly were they not guaranteed to pass in the Senate.

One point of politics and one point of analysis. First, to sausage-making. State Senator Ball, a Republican from somewhere other than New York City, came out against the bill before the amendments were finalized. His statement is irking some in the gay blogosphere:

Knowing that marriage equality was likely to pass, I thought it important to force the issue of religious protections. Over the past few weeks, I’ve had the distinct opportunity of listening to literally thousands of residents, on both sides of this issue, by holding an undecided stance. I thought it was important to listen to all of my constituents and hold an undecided position until the actual bill language was written and everyone’s voice had been heard. Now that the final text is public, I am proud that I have secured some strong protections for religious institutions and basic protections for religious organizations. The bill still lacks many of the basic religious protections I thought were vital, and for this reason, and as I did in the Assembly, I will be voting ‘no.’”

Some have read that statement to mean that Senator Ball “took,” or, rather feigned, “an undecided stance” in order to push through a number of religious exemptions. Their evidence is not just his language — saying you took an undecided position is not the same as saying you were actually undecided — but also his public decision to vote note before the amendments came out. So, some argue, he faked his way through, knowing he was going to jump ship anyway. That is the argument, at least. I prefer to be a little more optimistic about life (what’s that old saying? the optimist and the pessimist are born and die on the same day, but the optimist lives better?), but what do you think?

As for the amendments themselves, the sticking point has been so-called religious exemptions to the marriage law. I spoke to Brian Ellner (a pro-gay marriage lobbyist who had been working with the drafters and their staffs) and said that religious exemptions are fine — why would I want a clergyman who dislikes gay people to marry me? — but if the exemptions allowed, say, a Jesuit hospital to deny visitation rights to a same-sex married spouse, I would object.

The amendments first clause specifically refers to objections to “the solemnization or celebration of a marriage,” though an admittedly broad reading of the word “celebration” could include any type of “recognition” of the marriage. I hardly think that is a valid interpretation, though.

The second amendment is a bit trickier. It reads: “Nothing in this Article shall limit or diminish the right … of any religious … institution or organization,” or a charitable organization run in connection with a religious organization, “to limit employment or sales or rental of housing … or admission to or give preference to persons of the same religion … or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.”

This appears to be what I was worried about. In New England and in the Mid-Atlantic states (as, I am sure, elsewhere), we have lots of hospitals connected to religious orders (I was born in one!), which could “tak[e] such action” to promote their religious principles by denying spousal visitation rights to legally married same-sex spouses. On the other hand, hospitals with emergency rooms still have to take patients as they come; but it seems that a hospital that treats a gay man, but refuses to let his spouse sit by his death bed, would not be in violation of any law. Still, President Obama has issued regulations that require any hospital receiving federal funds to, among other things, allow for visitation of same-sex partners. Thoughts?

Finally, there is severability. One of the amendments requires that the law remain unseverable, so if one part is found to be unconstitutional, the whole law goes down as unconstitutional. That clause is becoming increasingly common in New York State laws, but I wonder if it could pose difficult questions down the road. What if a hospital connected to a religious order does indeed deny visitation. One reading the gay marriage bill would suggest that hospital could do so; but, then it would run afoul of President Obama’s hospital visitation rule and, say, Article 28 – § 2805-Q of the New York Public Health Law that requires visitation at “any” hospital. How would this play out? Would the severability clause — which, a friend reminded me, is not always sacroscant (United States v. Jackson, 390 U.S. 570 (1968) (punishment portion of federal kidnapping statute was severable despite nonseverability clause)) — become a problem for gay marriage?

In the end, if these amendments mean I can marry the man I love in my beloved home state, then I embrace them. I’m about to draft a similar post for the gay community over at Towleroad. I wonder what my commenters will think.

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5 Responses

  1. John says:

    What do you mean when you say “President Obama has issued regulations that require any hospital receiving federal funds to, among other things, allow for visitation of same-sex partners’.
    ALL hospitals (except for the Shriners) take medicare and medicaid which AFAIK means they are subject to the above regulation (the reason the Shriners avoid medicare is to not be subject to said regulations).
    Therefore, the point appears to be moot since they are already required to allow visitation per the regulation.
    As for the severability issue that does not appear to be an issue in this post either. This is because the hospitals will be forced to allow partners by their *choice* to take federal money and by the federal regulations which they *voluntary* accept.
    Of course, the language is still very broad and might pose some issues. I don’t see the hospital issue being a problem though.
    I suspect this will be litigated and if I was the plaintiff I’d go for the federal regulation and ignore the state law. By avoiding the state law and going for (already) current federal law the issue of severability can be rendered moot.
    Finally, I’d find it astonishing if gay couples got married in NY if any court would actually rescind their marriages retroactively. That would be the result of the severability clause and would pose such major issues that no sane judge would actually consider it.
    Good luck on the vote!

  2. PrometheeFeu says:

    “but if the exemptions allowed, say, a Jesuit hospital to deny visitation rights to a same-sex married spouse, I would object.”

    Why would you put that requirement on hospitals. If that is a concern, look up the policy of various hospitals around where you live and go to one which has a policy you can live with.

  3. Ari Waldman says:

    @PrometheeFeu: in an emergency, you can’t always choose your hospital. many people live in isolated towns in rural upstate ny with one hospital for 30 miles.

  4. Matt Lister says:

    “Celebrate” is often used in a way that I find a bit funny or annoying. I can’t say for sure that it’s a new meaning, and maybe I’m just being narrow myself. The meaning I find annoying is in sentences like, “We want to celebrate diversity”. I think, “throw a party for it?” If it’s a party I’ll come, but it never seems to involve beer, or even cake. But I think that “celebrating” a wedding just means the same thing as “solemnize”, but for people are not in to being solemn. (I wonder, though, whether this would apply to judges or the like. I was married by a judge, but if I would have known that this judge would refuse to marry a same-sex couple I would not have used her.)

    Any ideas on what the “rental property” bit above means? Other than the same exception from anti-discrimination laws that normally applies to renting rooms in one’s own home, I’d not be in favor of such an exception.

    On hospitals- in the city I grew up in there were two hospitals, but some services were offered only by one or the other, so if you needed those services, you had to go to the relevant hospital, or travel several hundred miles. I don’t think that’s wildly uncommon.

  5. Joey Fishkin says:

    Thanks for starting this conversation about the religious exemptions.

    It seems to me that the big prize in that fight may be the fate of adoption agencies that get state funding (along with other religious agencies providing various family services with state funding). Will Catholic adoption agencies in NY continue to get state funds even if they do not allow same-sex couples to adopt children?

    I am not sure, but it seems to me that this exemption language could lead to a different outcome than in Massachusetts, where the church made the stunning decision to simply pull out of the adoption business in Boston rather than comply with Massachusetts law requiring equal treatment of same-sex couples.