Trojan Horse or Much Ado about Nothing? Analyzing the Religious Exemptions in New York's Marriage Equality Act

Mr. President, . . . [h]ave you ever been present at a meeting of the New York legislature? They speak very fast and very loud and nobody listens to anybody else, with the result that nothing ever gets done. Robert Morris1I. INTRODUCTIONOn June 24, 2011, after several weeks of tense negotiations between Democratic Governor Andrew Cuomo and Republican State Senate leadership, New York enacted the Marriage Equality Act, thus becoming the sixth state to allow same-sex marriage, and the first with a Republicancontrolled legislative branch to enact such a law.2 The days between passage in the Assembly and final passage in the Senate were filled with protests by opponents of same-sex marriage and support rallies from proponents.3 Doubt about whether the Senate would even vote on the measure reigned until the last day of the legislative session.4 The breakthrough came via an agreement on a set of amendments that purported to strengthen exemptions for religious practitioners and religiouslyaffiliated organizations.5 To help protect the political bargain from judicial revision, the amendment bill also included an inseverability clause, raising consternation amongst marriage equality supporters.6An abundance of literature analyzes many actual and potential issues arising from concerns of people whose sincerely-held religious beliefs militate against laws ensuring freedom from discrimination for lesbian, gay, bisexual, and transgendered (LGBT) individuals.7 Some commentators have expressed concern that, specific to same-sex marriage, antidiscrimination laws will be used to suppress the religious freedoms of those whose religious teachings do not recognize same-sex marriage.8 Some have proposed broadly exempting religiously-affiliated groups, places of public accommodation, and public officials from participation in, and in some cases recognition of, same-sex marriages.9 In the run-up to the legislative debate over the Marriage Equality Act, a group of legal scholars proposed such draftlanguage, but these recommendations were not adopted.10This Comment argues that the religious exemptions in the Marriage Equality Act create little change to existing New York law, and that courts should avoid creating new interpretations. Part II reviews existing New York antidiscrimination and marriage law, discusses the Marriage Equality Act, notes New York's rules on statutory interpretation, and introduces scenarios that might reach New York courts requiring interpretation of the new exemptions.11 Part III analyzes three questions the New York courts are likely to encounter: (1) whether the new religious exemption language changes the interpretation of existing antidiscrimination law, (2) whether the inseverability clause will work to enforce the political bargain that led to passage of the Marriage Equality Act, and (3) whether failure to exempt public employees creates new burdens under existing marriage and antidiscrimination law.12 Part IV offers policy arguments opposing attaching broad religious exemptions to same-sex marriage laws.13 Finally, Part V concludes that the amendments to the Marriage Equality Act, while politically necessary, will have little legal impact.II. BACKGROUNDA. New York Antidiscrimination and Religious Freedom Law1. Overview and Applicable ProvisionsNew York's Human Rights Law covers most issues related to claims of unlawful discrimination and provides an administrative complaint process, via the Division of Human Rights (DHR), with provisions for judicial review.15 In 2002, New York enacted the Sexual Orientation Non- Discrimination Act (SONDA), adding sexual orientation as a protected class in the Human Rights Law, Civil Rights Law, and Education Law.16 SONDA expressly disavowed any change to existing marriage laws, thereby postponing the debate over same-sex marriage.17Under the Human Rights Law, place of public accommodation, resort or amusement is defined in broad terms intended to be construed liberally, largely barring discrimination in such places. …