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Religious Exemptions in New York State Marriage Equality Act

by Professor Will Huhn on June 25, 2011

in Constitutional Law,Equal Protection,Freedom of Religion,Wilson Huhn

Last night New York State Governor Cuomo announced the passage of the Marriage Equality Act and signed it into law.  This post discusses the religious exemptions contained in the new law.

The new statute clearly exempts clergy from having to perform same-sex marriages and religious institutions from having to host same-sex wedding ceremonies.  The new law states, in relevant part:

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.

A RELIGIOUS ENTITY … SHALL NOT BE REQUIRED TO PROVIDE SERVICES, ACCOMMODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES FOR THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE.

The Marriage Equality Act also contains another broader exemption from state nondiscrimination law.  This section of the law states:

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.

This language is difficult to parse, so I have arranged its clauses and highlighted certain terms to visually illustrate its meaning:

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 [of] 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.

There should be no difficulty with the provisions of this law that give religious organizations the right to limit employment, sales or rental of housing accommodations, or admission to gay persons or couples.  There should also be no difficulty with the provision that recognizes the right of religious organizations to give preference to persons of the same religion or denomination.  These provisions all concern the private activity of religious organizations; as private action, these matters are not subject to the requirements of the United States Constitution, and are optional for the states to permit or forbid.  As I noted in yesterday's post, under the Free Exercise Clause religious organizations may have a constitutional right to engage in certain private acts of discrimination.

The final clause of the religious exemption is quite broad, however.  The Marriage Equality Act states that religious organizations have the right to take "such action as is calculated by such organization to promote the religious principles for which it is established or maintained."  Does this mean that this law grants a religious organization the right to deny services to gay or lesbian individuals or couples even when it is performing a governmental function – which possibly includes placing children for adoption or foster care? 

It is possible that the language of the statute does not extend that far.  The statute merely states that nothing in the Marriage Equality Act is intended to "LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW" to discriminate in the foregoing ways.  Section 296 of the Executive Law is the operative section of the New York Human Rights Law, and Subdivision 11 of Section 296 is the religious exemption from the operation of that law.  In short, the religious exemption contained in the Marriage Equality Act merely states that nothing has changed in the application of the religious exemption of the state's Human Rights Law.  The Marriage Equality Act does not affirmatively grant religious organizations the right to discriminate in the matter of adoptions or anything else; the new law merely does not expand the operation of the state's Human Rights Law.

Professor Huhn has taught Constitutional Law at the University of Akron for over a quarter century. You may access his websites on Constitutional Law and Health Care Financing Reform for additional materials and information about those subjects. Drafts of his scholarly work are available from his author page at ssrn: http://ssrn.com/author=83790

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