Breaking — it appears that the New York State Senate is ready to vote on, and anticipate to approve, same-sex marriage. The lower house in New York has laready approved a slightly different version of the bill, and Governor Cuomo has indicated that he will sign it. (UPDATE: It passed! Stephen Saland, a Republican representing Poughkeepsie, provided the critical vote.)
The trick to getting this past enough Republicans and the lone, crazy Democrat who are opposed to it seems to be this language:
Religious Exception. 1. Notwithstanding any state, local or municipal law, rule, regulation, ordinance, or other provision of law to the contrary, a religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action or 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, or any employee thereof being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation.
… 1-a: A refusal by a clergyman or minister as defined in section two of the religious corporations law, or Society for Ethical Culture leader to solemnize any marriage under this subdivision shall not create a civil claim or cause of action or result in any state or local government action to penalize, withhold benefits or discriminate against such clergyman or minister.
2. Notwithstanding any state, local or municipal law or rule, regulation, ordinance, or other provision of law to the contrary, nothing in this article shall limit or diminish the right, pursuant to subdivision eleven of section two hundred ninety-six of the executive law, of any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, to limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.
3. Nothing in this section shall be deemed or construed to limit the protections and exemptions otherwise provided to religious organizations under section three of article one of the constitution of the state of New York.
I’ve never understood why a same-sex couple would want to be married in a church that wouldn’t want to have them in the first place, but not every aspect of this political struggle is particularly rational. And I’m not entirely sure about the housing issue or what “advantages” means as used in section 1 of the exemption. But in general, I don’t have a huge objection to the idea of a religious exemption to antidiscrimination laws with respect to the availability of venues for wedding ceremonies or receptions to take place.
Jim Burroway is confused about the nonseverability portion of the law, but I get that — if the religious exemption fails in court, then there will be no same-sex marriage later. That’s probably a political necessity for some of the Republicans who are offering to support the bill — they can go back and say to their churchy political supporters, “I made sure that you will never have to have any of those gay marriages here in your church; if there is no religious exemption to protect churches, there will be no gay marriage. Not on my watch!” So that’s an understandable political cover.
What is exciting, though, is that in one fell swoop, the number of people in America who have full marriage equality rights will double, and do so in a culturally significant area. New York is the third-largest state of the United States in terms of population; roughly one in sixteen Americans is a New Yorker. This wouldn’t be as big as California — but then again, it is happening purely through the political process and not as a result of judicial activity.
I’ve never understood why a same-sex couple would want to be married in a church that wouldn’t want to have them in the first place, but not every aspect of this political struggle is particularly rational.
Marriage as a subversive act is thousands of years old.
Is that stuff necessary, though? Can I sue a priest or his church for not being willing to perform and host a Jewish wedding?
I dunno.
One would think not.
Let’s say that, in theory, a gay couple shows up at First Babtist Church and asks Reverend Carmichael to marry them. He says something about Romans and declines.
Let’s have this hypothetical couple sue… not for damages or anything but for revocation of tax exempt status for the church due to discrimination in their duties to marry folks who want to marry.
How do you see this hypothetical lawsuit turning out?
For the record, I see the gay couple winning… if not in the local court, on appeal.
Of course not. Religious organizations get to include/exclude based on what they want.
IMHO, this whole thing is another ‘gay marriage oppresses us!’ lie.
The Better Half and I decided to wait out the news in the most cliche way possible, so when the announcement of its passage came we were in a piano bar and everyone started singing “New York, New York.”
It was a nice moment, to be sure.
This wouldn’t be as big as California — but then again, it is happening purely through the political process and not as a result of judicial activity.
So did California, before it was reversed via the initiative process.
I think that’s incorrect, Mike. In California, SSM was instituted via a judicial action, The Marriage Cases (2008) 43 Cal.4th 757. That was then overturned by political action, namely the initiative known as Prop. 8. Politically, California’s voters and legislature have never enacted same-sex marriage. (The Legislature passed it once, but Governor Schwarzenegger vetoed it.)
Yes, I misremembered.
Schwarzenegger vetoed same-sex marriage because he wanted to give the courts a chance to rule on it, not because he opposed the idea. He welcomed the decision you cite, opposed Proposition 8, and later wanted Judge Walker’s decision to immediately restore marriage rights.
So what I should have said is that the political process in California could well have enabled same-sex marriage, and would have except for Schwarzenegger ‘s odd notion that judicial action would be more legitimate.
For something like that to happen in your neck of the woods is extraordinary. That’s Red Sox territory!
Congratulations again to New Yorkers.
everyone started singing “New York, New York.
No doubt followed by “Yankees still suck!”
This is a very good thing that New York has done.
The cynical part of me will wonder exactly what will happen to homosexual sub-culture as SSM becomes more and more common around the country…
But, for today, this is a very good thing and should be celebrated.
I will hold off on asking my gay friends if they’ve gotten married yet and why not. For now.
They’ll get married, or not, for reasons that will wind up sounding similar to the ones given by your straight friends.
This is as it should be. They decide for themselves.
I think the gay subculture winds up evaporating even more than it has. It doesn’t go away until the social stigma and moral condemnation of gays goes away, which will take several generations. But this is a big step towards the kind of society in which being gay is no more remarkable than is being left-handed — which I don’t think will happen in our lifetimes but I could see happening as soon as a century from now.
Jaybird and Burt,
“homosexual sub-culture”—what does that mean? For that matter, why do we need layers and layers and layers of unnecessary categorization. Music is music. Painting is painting. Literature is literature. As a tree apples, the Universe peoples. Why add an element to such greatness as their sexual orientation? Are they any less great if they’re not branded with H on their chests?
Thank God, Wilde, Tchaikovsky, Lorca, Laughton, Wittgenstein, Whitman and on and on, didn’t need this homosexual tag for their greatness. It profoundly diminishes their genius and greatness to be boxed up in this trite, meaningless “sexual orientation” garbage.
Let these men be free.
Homosexuality is utterly irrelevant, on any level. Gay music does not exist. Nor does gay culture. Or gay literature. Gay has no deterministic quality or reality to anything.
Fair enuff, but of course heterosexuality would be similarily irrelevant by these criteria. There is no straight music, no straight culture or straight literature.
I think Whitman would have claimed it was relevant. And certainly Wilde would have done better without the label, but he accepted it nonetheless.
Rufus and Northie (do you mind, Bob’s “Northie” nickname?)
Thanks so much gentlemen for your excellent replies.
Yes, I don’t think you’d see Mr. Wilde Grand Marshall of any gay parade. Not because he wasn’t gay but such an event would be far too banal and silly for his liking.
Hey, how about we, here and now, eliminate all things gay AND straight? Certainly the great writers, composers, painters, dancers, didn’t need it. Nor did Tchaikovsky and I’d say he could carry a pretty good tune.
My last two comments disappeared–try again.
Thanks again, gentlemen.
Oh Rufus–have you been in France? Is SSM allowed there? Just curious….
The Wilde reference was very dark humor since he died in jail for sodomy. Nevertheless, he answered when called, which took more guts than any of us has.
As for eliminating gay and straight from art, no can do. I like classical music as much as the next guy, provided he’s not you H-Man, but I love rock’n’roll music and it’s almost entirely about sex.
“providing he’s not you”.
Okay that’s fine. Although to really love and adore classical music, it shouldn’t matter if Hitler was sitting next to you.
Perhaps you need a qualifier there, Rufus.
And please see the movie, “Taking Sides”—think you’d like it. I loved it.
If prurient, tedious, uninspired music is to your liking, great. If, by a miracle, you find yourself insufferably bored by it, listen to Bach’s b-minor Mass. Now that’s madness without amplifiers!!
Look, I do love classical music, although probably not as much as you do. Rock’n’roll might well be uninspired and simplistic, but it’s fun to dance too and sometimes you need things that are simplisitc fun. Could I defend rock’n’roll, beer, rollercoasters or cute girls in my dissertation? No. Would like be as enjoyable without them? Not for me anyway.
I don’t mind nicknames, feel free.
While *I* certainly seem to think so, there are a bunch of folks out there acting like it’s the end of the world for New York (see, for example, the folks at National Review’s “The Corner”).
The one unintended consequence that I see as likely to follow from all of this is that marriage will be more and more defined by “The State”. I don’t know if that will be good (maybe more folks will see marriage as akin to a contract than something you do because you’re “in love”) or bad (more people will see the government as having jurisdiction over relationship status rather than such being outside of the jurisdiction)…
But we’ll see.
For now, I feel that the best analog to your comment is one explaining that “there’s no black or white; we’re all human” the day after Loving v. Virginia.
On one level, of course you’re right.
On another level, what the hell.
Interesting, Jaybird. There is still a very, very big part of this issue that is not being discussed. Until the Vox Populi has spoken and consented, these legislative victories are ringing very hollow. Agree?
Could it also be agreed upon that Gay Paradesters not barge into a Catholic church with a service still going on dressed in speedos and Superman capes to receive Holy Communion? I’m clearly behind the times, but, oh well…
Heidegger, you can get a majority to agree on a hell of a lot of stuff.
My personal take on marriage is that it is something that exists in the eyes of God and The State does not have the competence to affirm nor deny whether two people are married… all it can do is say “nope, we’re not recognizing your will” or “nope, we’re not letting you visit your roommate on her deathbed”.
That’s it.
I’m not a fan of The State arguing the latter. If I have to put up with the charade of pretending that The State can recognize marriages in order to allow people property rights or visitation rights, I’m willing to put up with that charade.
Even if you do have a majority of folks more than happy enough to overturn wills and keep people from visiting each other. (To be perfectly honest, I have no idea why that sort of thing hasn’t depressed you yet.)
Jaybird, let me just briefly say—this is a subject that is verify close to my heart and my family’s–I’m not some Phelps bigot.
I’ve called scores of hospital and out of curiosity, asked them what their visiting rules are. Not ONE SINGLE hospital said gays cannot visit their loved ones. Gays and Straights have identical visiting privileges–there are no restrictions whatsoever on gays visiting their loved one. Why do people continue to say otherwise?
Probably because of stuff like this.
It’s not the places that are acting decently that people get all up in arms about.
Also because partners who are not legally next of kin can be excluded by family members who disapprove of their existence.
Heidegger, the question is whether gays, outside of civil unions and marriages, would have the same visiting privileges as straights. So a policy can be completely gender-neutral and say “only family members, including spouses” and still be discriminating against gays if they can’t get legal recognition.
One of the things that makes me so thrilled about New York’s actions is that it was done the right way. I get a little squeamish when we talk about gay marriage as a constitutional right.
But the rights conferred by marriage and civil unions I do see as something of a different matter. I’m not entirely sold on the subject, but it strikes much closer. The questions of fairness are more fundamental. I view marriage as one part moral/cultural, one part legal. The morality and cultural implications of homosexuality is inherent in the first part of the question, but not when it comes to the legal relationship.
Jaybird, I sympathize with this concern which is, in my eye, the child of what I affectionately called the Libertarian cop-out. Libertarians would say they wanted no state involvement in marriage at all, straight or gay. That was and is perfectly ideologically consistent but also utterly and completely impossible.
The situation as it stood was that the status quos couldn’t hold. Either government could involve itself in marriage somewhat more by defining government administered civil marriage to include gay couples or it would remove government civil marriage all together. Considering that politicians are politicians and that most people are not libertarians that the former happened rather than the latter is unsurprising.
Heidegger, I assume you’re referring to the referenda’s yes? Do you realize of course how much goalpost shifting is involved in that sentiment? Only a couple of years ago anti-ssm groups were beating their breasts about how gay marriage was only occurring by “judicial fiat” and why oh why wouldn’t SSM supporters just get approval themselves through legislative bodies?? Now suddenly gay marriage proponents ~are~ getting approval through legislative bodies and suddenly the only acceptable method is via direct democracy referenda? What on earth will be next once SSM supporters win via referenda; will we need to get a constitutional amendment or approval from the Baptist church board?
Hey, I’m fine with putting up with the charade.
I merely don’t think that marriage comes from the state (though, I’ll grant, the power to protect Civil and Human Rights does). I’m willing to pretend that the State can recognize marriage in order to have something somewhat fairer.
I just suspect that it will carry with it some unintended consequences.
Jaybird June 25, 2011 at 7:02 pm
” The one unintended consequence that I see as likely to follow from all of this is that marriage will be more and more defined by “The State”. ”
The *whole point* of this is that of State recognition. People could always get married in a church, or by witness, but the State would only recognize certain ones. If marriage in the USA had been defined by contract between two consenting adults, then most of this would have been irrelevant, similar to whether or not a church is on the State-recognized list.
There is a distinction I am making between “state recognition of X” and “state definition of X”.
X exists prior to and independently of the state in the former.
It’s part/parcel in the latter.
*THAT* is what I’m worried about.
Of course the “gay sub-culture” is part of the larger culture as a whole. That’s why it’s called a sub-culture. It seems a counterfactual exercise to pretend that our culture does not draw lines between “gay” and “straight.” One can make that observation, possibly with regrets, and still argue that our culture ought not to draw such lines or to do things to work towards a new and different cultural reality in which sexual orientation really is as irrelevant as you claim. We’re not there yet, and we won’t get there by pretending we already are.
Thanks Burt–must run now. Looking very much forward to discussing your last comments. Tshuss und bis Bald!
Burt, Will, Mike “Bloody Red Sock” Shilling, Jaybird
Thank you all for taking the time to reply to my comments.
If I understand you all correctly, civil unions with all the rights and privileges of a marriage union would be an acceptable compromise. Well, not to Judge Walker. He extended a stay for further consideration–there is no way on earth that this will not be going to SCOTUS and God knows how that vote will go. If the majority decide that gay marriages must legally be recognized by all states, then it will be impossible for any church of whatever denomination to refuse to perform marriage for gays. And that my friends will be the start of a revolution.
No, civil unions and the conferring of those rights to gay couples is the minimum, not the objective.
The New York law we are discussing is very, very clear on gay marriage and religious exemptions. One of the advantages of doing this by way of statute instead of the courts is that we could be clear on this.
Beyond which, the Catholic Church is under no obligation to marry anyone. Period. They are under no obligation to marry anyone that is not a member of their church in good standing. And typically, they don’t. Their exclusion of gays would be part of a longstanding policy of not marrying people who are not members of the faith. Homosexuals cannot marry in the church for the same reason that I cannot marry in a Mormon Temple.
I understand that the fear surrounding churches is genuine, but it’s unfounded. Beyond which, this is actually not a bad reason to do what these four Republicans did, which is to get out front of the issue and make it very clear where the law stands on this. Gays that might otherwise want to poke the Catholic Church in the eye aren’t going to do so when the non-severability clause means that the whole law may come tumbling down.
Jaybird, google Andrew Sullivan’s “The end of Gay culture” piece. The “gay subculture” has been in a steep decline for quite a while now. For logistical reasons I am sure gay bars and gay websites will probably remain but beyond that the ultimate trajectory appears to be gays dispersing back into the population for the most part. They don’t need their guilded metaphorical ghettos anymore and barring some great social reversal gays will likely largely abandon them.
Heidegger June 26, 2011 at 2:44 am
“If the majority decide that gay marriages must legally be recognized by all states, then it will be impossible for any church of whatever denomination to refuse to perform marriage for gays. And that my friends will be the start of a revolution.”
This makes no sense on any level, whether common or legal.
Do you actually not understand that a church can (1) set its own standards for which marriages they recognize, (2) refuse to conduct marriages for those who don’t meet its criteria, and (3) blithely ignore what other churches do?