Advocates Comfortable with Religious Exemptions in New York

Late Friday afternoon, Gov. Andrew Cuomo and New York state legislative leaders reached agreement on an amendment for religious exemptions in the marriage equality bill, which cleared the way for a historic vote on the measure Friday night. Cuomo signed the bill at 11:55 p.m. to ensure it went into effect on July 24.

The bill, which legalizes civil same-sex marriages in the nation's third most populous state, passed the Democratic-controlled Assembly last week with exemptions for religious institutions and benevolent organizations, such as the Knights of Columbus, that do not wish to solemnize the same-sex marriages or provide their private facilities for the events. Republican leaders in the Senate demanded stronger protections, which resulted in more than one week of negotiations between three of their members and Cuomo's office.

The negotiations yielded revised language introduced Friday in a chapter amendment by Assembly member Daniel O'Donnell, the gay Manhattan lawmaker who sponsored the legislation, at the request of the governor. In addition to the religious corporations and benevolent organizations submitted in the original bill, the amendment adds non-profit corporations under their control and employees. It further stipulates that refusal to solemnize same-sex weddings or provide services in connection with them will not result in "any state or local government action to penalize, withhold benefits or discriminate" against the entities.

New Yorkers United for Marriage, the bipartisan coalition of five LGBT organizations working with the governor to pass the bill, issued a statement ahead of the vote that endorsed the amended language.

"The amended Marriage Equality legislation protects religious liberties without creating any special exceptions that would penalize same-sex couples or treat them unequally," said the statement. "The legislation strikes an appropriate balance that allows all loving, committed couples to marry while preserving religious freedom."

Susan Sommer, senior counsel and director of constitutional litigation at Lambda Legal, agreed, saying that the exemptions language tracked existing state law and reflected provisions in the marriage statues of other states and jurisdictions including Connecticut and Washington, D.C.

"It's no more a cause for concern here than it was in places like Connecticut and the District of Columbia that have thriving marriage laws," she said.

One Republican state senator, Greg Ball, repeatedly raised the issue of exemptions for religious individuals and businesses and said his undecided vote hinged on that, but in the end he still voted no. He was not among the three senators who negotiated the language with the Cuomo administration.

Sommer said that the exemption language appeared to take a narrow approach, in contrast to the sweeping issues raised by Ball and some others.

"It doesn't have that sort of broad exemptions for individuals or businesses," she said. "That would have really been a major setback. This is something much more contained."

The amended language also includes a severability clause, meaning that if one part of the law is found to be unconstitutional, the whole law would be unconstitutional.

"That may be a way of saying if anybody is going to go in and legally challenge the exemption parts, the whole law falls," said Sommer.

Opponents of the marriage equality bill criticized the amended language for failing to protect religious freedom.

"The amendment language does nothing to protect cake bakers, caterers, photographers, florists, or other people of strong religious faith opposed to same-sex 'marriage' that refuse to provide services for same-sex couples," said the Rev. Duane Motley, senior lobbyist for New Yorkers for Constitutional Freedoms.

The Senate passed the marriage equality bill with amended language late Friday night with four Republican votes. The Assembly had already passed the chapter amendment, clearing the way for the governor's signature.