Did NY same sex marriage proponents give away the farm with religious exemptions?

The good news is that the New York state legislature finally approved a law that will allow same sex marriage. The bad news is that in order for this great thing to happen, changes in the law will allow religious sects AND the non-church businesses they operate to discriminate against gays without any legal repercussions. In the zeal to get these new rights for the LGBT community, did proponents give away the farm?

From the NY Times:

The Republicans who insisted on the provision did not only want religious organizations and affiliated groups to be protected from lawsuits if they refused to provide their buildings or services for same-sex marriage ceremonies, they also wanted them to be spared any penalties by state government. That would mean, for example, a church that declined to accommodate same-sex weddings could not be penalized later with the loss of state aid for the social service programs it administers.

The amendment that was passed stated that barring access to same-sex ceremonies, or failing to provide services for them, would not “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.”

The amendment also included protections for “any employee thereof being managed, directed or supervised by or in conjunction with a religious corporation, benevolent order or a not-for-profit corporation.” And it included similar protections for clergy who declined to perform same-sex ceremonies.

Finally, the legislation contained what is known as an inseverability clause. If a court found any part of the act to be invalid, the entire legislation would also be invalid. The clause is an important provision to Republicans because it means that the marriage legislation would be at risk if the religious exemptions were successfully challenged in court.

Exemptions Were Key to Vote on Gay Marriage

The exemptions really weren’t needed concerning religious marriage ceremonies since clergy have always had the ability to NOT marry someone and churches have never been required to allow everyone to use their facilities. The act of marriage is two parts – the civil act of getting the license and the ceremony act that can be performed anywhere not just in a church.

I don’t recall any such religious exemptions being enacted when laws against interracial marriage were overturned after Loving vs Virginia in 1967.

I’m not a lawyer but it appears to me that a catholic adoption agency, for example, might deny adoptions for same sex couples and use the marriage law exemption as cover and the couples would have no recourse. If the LGBT community then filed a lawsuit and those exemptions were found unconstitutional then the whole marriage law would be invalid – returning us to square one.

The exemptions passed in New York just seem to me like an effort to discriminate legally like laws such as “Jim Crow” and those that prohibited women from owning property.

I just don’t trust any Republican who is anxious to give same sex couples the right to marry.

Obviously it is a great thing for same sex couples to be able to marry but I can’t get my head around the fact that the exemptions may have been too high of a payment.


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  1. June 26, 2011

    Maybe a better comparison to the legal aspects of same-sex marriage would be divorce law. I don't really know of any churches that would refuse to marry an interracial couple (aside from white supremacist ones), but the Catholic church refuses to marry divorced people all the time. So, then my question is, can Catholic adoption agencies refuse to place children in the homes of couples where at least one of them is divorced (or not sufficiently Catholic for some other reason)? Or did they when divorce first became widely available? I admit, I don't know. But if they can, it seems like eventually, things will more or less be like this. It's also true that once same-sex marriage is widely established in New York, if the law if challenged and overturned, the chances that it will quickly be rewritten and replaced rapidly approaches 100% the longer the new law remains in effect.

  2. sbj1964
    July 8, 2011

    When ever any freedom is denied to anyone based on religion it is just wrong plain ,and simple .

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