What's Between New York's State Senate and Marriage Equality? About Fifteen Words

This weekend, the New York State Senate prepares for its final scheduled day of the current legislative session, unsure if a compromise can be reached between its Republican leader and Democratic governor Andrew Cuomo on the issue of same-sex marriage. There is, however, hope for a compromise -- one borne out by a close reading of the bill, and Republicans' objections to it.

Now, it is doubtless true, as others have observed, the real issue here is electoral politics: if the Republicans anger their conservative base by supporting marriage equality, the base may rebel, and the party's razor-thin margin in the Senate could be lost. At the very least, incumbents could face costly primary battles from the Right. So I do not mean to naïvely believe that principle, rather than politics, is the central concern. That being said, at least one Republican, freshman state senator Greg Ball (who happens to represent my district), has articulated three specific concerns with the bill -- concerns which, I believe, can mostly be answered. So, to the extent that we can believe the Republican leadership that their concern is protecting religious institutions from unwanted litigation and coercion regarding gay marriage, this gap is eminently bridgeable.

Here are Ball's three concerns, taken verbatim from his office's communication, together with my analysis. As we shall see, the first concern is the most difficult, but the second and third are quite easy to address.

1. Governor's language does not protect church-related agencies from denial of funding by state and local government agencies to provide charitable and health services, or allow them to make hiring and benefits decisions based on religious beliefs. Most of these religious-affiliated groups are incorporated under the Not for Profit Corporation Law, not just the Religious Corporation Law and Education Law.

The issue here is really in the last sentence. Ball and the Republican leadership are aware that religious organizations recognized as such are specifically exempted from complying with the marriage law. They can fire me because I'm gay, deny my partner medical benefits if I work for them, and refuse to allow us to rent their space for our wedding celebration next September. But, Ball is also correct that many religious organizations are not Religious Corporations under the law; they are ordinary nonprofit corporations. Organizations choose this more general status for a variety of reasons. First, religious corporations must prove that most of their activities are specifically religious. A Catholic aid agency, for example, may have trouble doing that, if what they're mainly doing is providing food, or medical assistance, or similar services. Second, there are reporting requirements associated with being a religious corporation, which many organizations seek to avoid.

The problem here is that changing the bill to exempt any nonprofit organization from compliance allows far too much. All an organization would have to do is claim to be religious in some way, and the protections meant to be given to same-sex couples are suddenly removed. This allows far too much.

Since changing the bill language here would create too large an exemption, one way forward is to issue a side-memo clarifying legislative intent, and stating that it is not the intent of the bill to force religious organizations -- even those not organized as Religious Corporations -- to "provide accommodations, advantages, facilities or privileges" in connection with same-sex marriage (the same language used in the bill itself, as discussed below). Granted, this could still lead to some conceivable litigation over whether an organization is to be considered "religious" for the purposes of this bill. But this risk seems small, and it is better than including a vague and overbroad exemption in the bill itself. A side-memo could also be more detailed, specifically iterating the kinds of organizations (like that Catholic aid society) that are intended to be exempted, thus precluding litigation. It's a messy solution, but it works.

2. The exemption given for church halls and facilities of benevolent orders is limited. It does not protect religious or benevolent orders from challenges to tax exempt status. (POINT: This occurred in NJ - when a Methodist Church refused use of facilities for same sex marriage). Nor would the current bill protect against local human rights/public accommodations laws.

This one is easy. The text of the marriage bill provides in section 10-b-2: "a refusal by a benevolent organization or a religious corporation, incorporated under the education law or the religious corporations law, to provide accommodations, advantages, facilities or privileges in connection with section ten-a of this article shall not create a civil claim or cause of action."

Ball's claim is thus incorrect. Surely "cause of action" includes a person initiating an action to revoke tax-exempt status. If a church denied me the right to have my wedding there, I as an individual couldn't initiate any kind of action, on any basis. That leaves public actions to revoke non-profit status, or to act under the other laws Ball mentions. However, that basis is precluded by 10-b-1, which states that a religious organization "shall not be required to provide accommodations..." etc. That seems quite clear: if an organization is not required to do X, then X could not possibly be the basis for a public action against it. Indeed, even if a municipality wanted to enact a more stringent law, it would be precluded by 10-b. So, Ball is clearly wrong here on the substance of law.

In terms of process, however, it would make sense to give the Republicans what they are asking for here -- additional explicit protections -- because doing so changes nothing on the ground. Although I am loathe to encourage unnecessary legislative verbiage, it would be simple to add a sentence stating that "the tax exempt status of religious corporations shall not be challenged on the basis of this law." Yes, that's already covered -- but since this debate is largely political, adding this language allows the Republicans to return to their constituents as defenders of the faith, while not burdening LGBT people in any way. And who knows, maybe the Republicans are right; the extra language is at least some extra comfort. So why not add it in?

3. The exemption language in the Governor's bill does not rule out enforcement actions by regulatory agencies (POINT: Examples include denial of licenses to provide services)

This, too, is incorrect, for the same reason: section 10-b states clearly that such orgs "shall not be required to provide" accommodations, services, et cetera. Thus no agency could initiate an enforcement action on the basis of their failure to do so.

Once again, though, the best course is to give the Republicans the language they are asking for. The governor should simply add a sentence stating that "regulatory agencies shall not initiate enforcement actions against religious organizations on the basis of this law." As before, these words are redundant legally, but meaningful politically. So as before, why not add them in?

If the Republican leadership is merely using the protection of religious organizations as a canard, then acceding to their requests will at least make that clear. More likely, though, it will allow moderate Republicans to balance the needs of different constituents, style themselves as moderate centrists, and return home with a hard-won victory. And it will allow me to get legally married in September.