Religious rights debate delays same-sex marriage voteRussell Pearce in Times Union, June 18, 2011
by Jimmy Vielkind Capitol bureau
ALBANY -- State Senate Republican worries about inadequate protection of religious organizations continue to delay passage of a bill to legalize same-sex marriage.
"There is a concern right now as to the unintended consequences of some of the religious clauses, carve outs, protections, and we're reviewing that," said Senate Majority Leader Dean Skelos, R-Long Island.
Skelos said Gov. Andrew Cuomo is "receptive" to changes, but the Senate GOP spent another three hours Friday morning privately discussing same-sex marriage before declaring, again, that further deliberation was needed.
While 31 senators support the bill, one less than needed for its passage, Republicans who control the chamber have not scheduled it for a vote. A bill drafted by Cuomo passed the Assembly Wednesday night.
The Legislature adjourned for the weekend, pushing the issue into next week. The session is scheduled to end Monday, but lawmakers face other crucial unfinished business, including New York City rent control and a property tax cap.
Cuomo remained confident same-sex marriage would "pass at the right time," and left open the possibility he would extend the legislative session beyond Monday if a resolution was not reached this weekend.
Religious leaders and legal experts disagree about the exact impacts of the current bill. New York City Roman Catholic Archbishop Timothy Dolan said on Talk 1300 that it contains only reiterations of existing protections, and that "what government gives, government can take away."
Existing state law prohibits discrimination against people based on their sexual orientation (as well as race and gender) but exempts private organizations and religious organizations. The bill reiterates that churches and private, fraternal organizations like the Knights of Columbus are "distinctly private" and not forced to give facilities related to a same-sex ceremony.
The bill further states that any religious groups, as well as any organization it operates for "charitable or educational purposes" cannot be faulted for any act "calculated by such organization to promote the religious principles for which it is established or maintained."
Edward Mechmann, an attorney who works for the Catholic Conference, met with Cuomo's top aides to point out what it sees as problems. The bill's language only references parts of the human rights law, but doesn't tie in to the public accommodations law, which mandates any restaurant, hotel or catering hall that isn't completely private must serve everybody. "Unless you're given a specific exemption from that, you're required to comply," he said.
Robin Fretwell Wilson, a professor at Washington and Lee University Law School in Virginia, said the promoting religious principles clause was "broad, yet ambiguous." While the bill specifically provides protection against lawsuits for organizations, Fretwell and Mechmann fear government entities might strip away contracts, deny funding or even tax-exempt status for religious entities that are legally discriminating.
"Such risks are not speculative," said Fretwell, noting the City of San Francisco stripped the Salvation Army of $3.5 million in social service contracts. Other states, including Connecticut and Vermont, provided a specific protection, and Mechmann was concerned for religious charity organizations.
But Russell Pearce, a professor of law and religion at Fordham University in New York City, said such provisions don't currently exist in New York's non-discrimination laws, and as such, can't be impacted if same-sex marriage passed.
"It has nothing, necessarily, to do with this legislation and is trying to carve out a new privilege," he said. "The Cuomo bill is both clearer and broader about the exemption for religious institutions and charities."
Agreeing, Suzanne Golberg, director of the Columbia Law School Sexuality & Gender Law Clinic, called Mechmann's concerns "a red herring in the political debate."
But apparently one Cuomo will entertain -- for now.
"The words are very, very important," he said. "The issue here is, literally, religious freedom."