As some of you perhaps know, Bob Tuttle and I have written a piece about state laws and policy proposals designed to reconcile same-sex marriage with religious liberty. http://www.law.northwestern.edu/journals/njlsp/v5/n2/4/4Lupu.pdf
The NY law, as I read it, is just like the other state laws we canvass in respect to 1) exempting clergy from any obligation to perform a marriage ceremony for any particular couple or class of couples; 2) exempting religious entities from any obligation to host the solemnization or celebration of a marriage (worship service, reception, etc.) Most lawyers and scholars would agree, I think, that the First Amendment requires those two exemptions. The NY statute, just like the others, does NOT exempt any public employees or providers of wedding services/goods (caterers, photographers, etc.) from their pre-existing obligations under state Human Rights law to serve without discrimination based on, among other things, sexual orientation. (A number of our colleagues on this list had pushed in NY and elsewhere for an exemption of that character; the Lupu-Tuttle article argues against such exemptions.) Section 10.B.3. of the NY law, as Marty quotes it and I read it, just confirms that the new law does not modify the pre-existing statutory rights of religious entities to discriminate based on religion in hiring, admission to schools, etc. So if a religious organization excludes, on religious grounds, openly and actively gay people from jobs or other listed opportunities, it may continue to do so. Being in a same-sex marriage would obviously be evidence of someone's intimate life with a same-sex partner. But 10.B.3 does not seem to add any rights to discriminate (e.g., re: social service delivery, or spousal benefits to employees) that did not already exist under NY statutory law. Do others read these provisions differently? On Sat, Jun 25, 2011 at 6:23 AM, Marty Lederman <lederman.ma...@gmail.com>wrote: > >From what I can tell, this is what ended up in the bill; please holler if > this is not correct: > > S 10-B. APPLICATION. 1. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, > PURSUANT TO SUBDIVISION NINE OF SECTION TWO HUNDRED NINETY-TWO OF THE > EXECUTIVE LAW, 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 RELIGIOUS CORPORATION INCORPORATED UNDER THE > EDUCATION LAW OR THE RELIGIOUS CORPORATIONS LAWS SHALL BE DEEMED TO BE > IN ITS NATURE DISTINCTLY PRIVATE AND THEREFORE, SHALL NOT BE REQUIRED TO > PROVIDE ACCOMMODATIONS, ADVANTAGES, FACILITIES OR PRIVILEGES RELATED TO > THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE. > 2. A REFUSAL BY A BENEVOLENT ORGANIZATION OR A RELIGIOUS CORPORATION, > INCORPORATED UNDER THE EDUCATION LAW OR THE RELIGIOUS CORPORATIONS LAW, > TO PROVIDE ACCOMMODATIONS, ADVANTAGES, FACILITIES OR PRIVILEGES IN > CONNECTION WITH SECTION TEN-A OF THIS ARTICLE SHALL NOT CREATE A CIVIL > CLAIM OR CAUSE OF ACTION. > 3. PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF > THE EXECUTIVE LAW, NOTHING IN THIS ARTICLE SHALL BE DEEMED OR CONSTRUED > TO PROHIBIT 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 FROM LIMITING EMPLOYMENT OR SALES OR RENTAL OF > HOUSING ACCOMMODATIONS OR ADMISSION TO OR GIVING 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. > > > S 5. Subdivision 1 of section 11 of the domestic relations law, as > amended by chapter 319 of the laws of 1959, is amended and a new subdi > vision 1-a is added to read as follows: > > * * * * NO CLERGYMAN OR MINISTER > AS DEFINED IN SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW, OR SOCIETY > FOR ETHICAL CULTURE LEADER SHALL BE REQUIRED TO SOLEMNIZE ANY MARRIAGE > WHEN ACTING IN HIS OR HER CAPACITY UNDER THIS SUBDIVISION. > 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. > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
