Moments ago the New York State Senate, by a vote of 33-29, approvedÂ a statute recognizingÂ same-sex marriage.
In 2006 in the case of Hernandez v. Robles the New York State Court of Appeals ruled that there is not a right to same-sex marriage under the Constitution of the State of New York.Â Today the New York State legislature adopted a statute recognizing the right of gay and lesbian couples to marry.Â New York is the second state (after Vermont) to legislatively adopt same-sex marriage, and the sixth state to do so either by statute or court decision.Â The matter is still unresolved in California where the constitutionality of Proposition 8 is currently on appeal.Â
The New York State law contains a number of protections for religious organizations such as not requiring clergy to conduct or churches to host same-sex weddings.Â Furthermore, the lawÂ inextricably ties marriage equality to those protections.Â The law also provides that if the protections for religious organizations are ruled ineffective, the law as a whole will be struck down.Â The non-severability provision of the law states:
THIS ACT IS TO BE CONSTRUED AS A WHOLE, AND ALL PARTS OF IT ARE TO BE READ AND CONSTRUED TOGETHER. IF ANY PART OF THIS ACT SHALL BE ADJUDGED BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID, THE REMAINDER OF THIS ACT SHALL BE INVALIDATED.
Is it likely that any of the statute's religious exemptions from non-discrimination laws are unconstitutional?Â Members of the clergy and private religious organizations are not normally subject to constitutional constraints because their conduct is private, not state action.Â In addition, the Free Exercise Clause would clearly protect the religious freedom of individuals and groups not to participate in same-sex marriage ceremonies.Â Â On the other hand, when private parties are imbued with governmental power their actions may be considered to be the actions of the state, and the courts may prohibit such persons from acting in a discriminatory manner.