Gay Wedding Law Hits Hurdle

Russell Pearce in The Wall Street Journal, June 17, 2011

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As Albany inches closer to legalizing gay marriage, Orthodox Jewish and Roman Catholic leaders are sounding the alarm about what they view as a lack of legal protections in the proposed law.

The proposed bill submitted by Gov. Andrew Cuomo and passed by the Assembly on Wednesday shields churches, synagogues and benevolent societies, like Knights of Columbus, from civil actions related to the law, and grants them the right to deny couples from using their facilities to solemnize or celebrate a marriage because of religious reasons.

Unlike the gay-marriage statutes in Connecticut, Vermont and New Hampshire, the proposed New York law doesn't extend that protection to religious nonprofit groups, such as Catholic Charities.
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Republicans say they expect to eventually vote on the bill, and many of them are predicting the Senate will pass it. But the debate over religious protection has given Republicans some pause. It's possible that the chamber could take up the measure Friday, but Republicans say they may delay a floor vote until lawmakers in both houses settle unrelated negotiations over the renewal of rent-control laws.

"Should the bill pass without adequate protection, it will have potentially far-reaching consequences for our ministries, both in terms of contracts to provide services and potentially to challenges to not-for-profit status," said Dennis Poust, a spokesman for the state Catholic Conference, the policy and lobbying arm of Roman Catholic bishops in New York.

Cuomo administration officials say they were careful to strike a balance that upholds the rights of religious organization to practice their religion without giving opponents of gay marriage a license to discriminate against gays and lesbians.

Supporters of the law say they won't accept the sort of blanket protections demanded by one Republican senator, Greg Ball. Saying he wouldn't vote the bill, Mr. Ball wrote on his personal blog this week that he wouldn't vote for a bill unless it contains language allowing nonprofit groups to deny any services "because of religious or other beliefs."

Mr. Ball on Thursday said he wants the state to "simply provide some basic protections, not currently provided."

The New York bill also doesn't protect churches or any religious group from being penalized by government for refusing services or accommodations to same-sex couples. Connecticut, New Hampshire and the District of Columbia bar such punitive actions.

The state's human-rights law allows religious-affiliated charities to promote their religious principles and to give preference to people of the same denomination with respect to hiring, membership and housing. But if a charity for instance refuses to offer spousal benefits to same-sex married couples, it could risk losing government grants, social-service contracts and its tax-exempt status. Robin Wilson, a law professor at Washington and Lee University, points to a 2007 case in Ocean Grove, N.J., where a Methodist organization lost its tax-exempt status for refusing to allow lesbian couples to have civil-union ceremonies at a public seaside pavilion owned by the group.

Religious leaders and some legal scholars are urging the state to include a specific provision for individuals or businesses, like florists or caterers, that refuse to offer services to gay couples. Other states with gay marriage don't grant such protections, which gay-rights advocates say would open the door to outright discrimination.

"No one is going to lose out because of this. There's another florist down the block," said Mordechai Biser, the general counsel of Agudath Israel of America, an Orthodox Jewish advocacy group. "We're not talking about a situation in the South when blacks couldn't eat at a lunch counter."

Such an exception, though, clashes against existing antidiscrimination laws, according to other legal experts. "When you start to change the framework of civil-rights law, you open up a whole can of worms," said Russell Pearce, a professor of law and religion at Fordham University School of Law.