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Memo To NY Republicans: Marriage Equality Bill Doesn’t Threaten Religious Liberties

June 17, 2011 4:54 pm ET by Carlos Maza

With the New York Senate just one vote away from approving a marriage equality bill, concern over the bill’s religious protections has become one of thechief obstacles” to securing support from on-the-fence Republicans.

Robin Fretwell Wilson – a law professor at Washington and Lee University – has played a major role in ginning up Republican fears about the bill’s impact on religious liberty. On June 15 she wrote a letter directly to state Senator Greg Ball warning him of the bill’s shortcomings. As the New York Sun reported:

Professor Wilson’s letter is significant not only because of her distinction in the field but because the issues she is raising are the point at which a number of senators are on tenterhooks.

In an op-ed in Thursday’s New York Sun, Wilson outlined what she perceived to be the three “significant gaps” in the bill’s religious protections.

In reality, Wilson’s “gaps” boil down to little more than overblown fear-mongering created by a person whose political agenda clouds her legal judgment. 

Claim: Religious Adoption Agencies Will Be Forced To Place Children With Same-Sex Couples.

From Wilson’s op-ed:

[I]t doesn’t exempt religious social service organizations from placing children with same-sex couples if doing so violates their religious beliefs, as Connecticut did (so long as the organization receives no government funding). However, Mr. Cuomo’s bill does permit religious organizations to take “such action as is calculated by such organization to promote the religious principles for which it is established or maintained.” But who knows what this means?

Reality: New York State Law Already Prohibits Religious Organizations From Discriminating Against Same-Sex Couples, Both In Private And Public Adoption Services. Pat Cantiello, a spokesman for the New York State Office of Children and Family Services, wrote in an email:

New York State regulatory standards provide in 18 NYCRR 421.16(h)(2) that applicants to be adoptive parents may not be rejected solely on the basis of homosexuality.  This regulatory standard is applicable to all public and private adoption agencies in the State of New York.

In accordance with section 110 of the Domestic Relations Law, any two unmarried adult intimate partners together may adopt another person. [emphasis added]

In a follow-up email, Cantiello again made clear that religious adoption agencies were not exempt from these regulations:

1. Are religious adoption agencies, public or private, exempt from these regulations?  ANS:  No

Cantiello’s statement was echoed in a 2011 Lambda Legal memo clarifying the marriage equality bill’s impact on adoption agencies:

New York law and policy already prohibits discriminating against lesbian and gay adults and couples in the area of adoption, whether or not these adults are granted the right to marry in New York. Many lesbian and gay adults have adopted children from the foster care system, giving loving homes to children in need.

Domestic Relations Law § 110 provides that “[a]n adult married person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person.”

New York State regulations require that State-supervised private adoption agencies providing foster care and adoption services, including faith-based and non-faith-based agencies alike, not discriminate against lesbian and gay adults applying to adopt children in foster care. 18 NYCRR § 421.16(h)(2) specifically provides that “Applicants shall not be rejected solely on the basis of homosexuality.” Thus, already adoption agencies working with children in the foster care system are prohibited from discriminating against lesbian and gay prospective adoptive parents, whether these adults are married or not. [emphasis added]

Claim: “Ordinary Individuals” Won't Be Allowed To Refuse Service To Same-Sex Couples. 

From Wilson’s op-ed:

Mr. Cuomo’s bill offers no protection at all for ordinary individuals. Now, many people cannot fathom how recognizing same-sex marriage for one individual can implicate the rights of others. Here’s the short answer: well-intentioned non-discrimination statutes passed during the 1950’s and 1960’s — long before anyone envisioned same-sex marriage — have been used to penalize individuals in ordinary commerce who decline because of religious convictions to assist same-sex couples.

Bakers, photographers, seamstresses, florists and bed-and-breakfast owners who, for religious reasons prefer to step aside from celebrating or facilitating same-sex marriages may be subject to suit under New York’s Human Rights Act. That law authorizes compensatory damages and, for housing discrimination, punitive damages and civil fines too.

Reality: The New York Human Rights Act Already Prohibits Individuals From Discriminating Same-Sex Couples. From the text of the New York Human Rights Law, N.Y. Exec. Law § 296(2)(a):

2. (a) It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, including the extension of credit, or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status, or that the patronage or custom thereat of any person of or purporting to be of any particular race, creed, color, national origin, sexual orientation, military status, sex or marital status, or having a disability is unwelcome, objectionable or not acceptable, desired or solicited.

David Rich, a business litigation attorney in New York, clarified the scope of the state’s current non-discrimination law in a recent blog post:

In general, a business in New York State may lawfully refuse to provide service to a particular individual for any reason or no reason, as long as the business does not refuse service because the individual belongs to a member of a class protected by statute.  Classes protected under the New York State Human Rights Law include any person’s race, creed, color, national origin, sexual orientation, military status, sex, disability, or marital status.

The state’s non-discrimination law currently does not include an exemption for business owners, like florists and bakers, who simply don’t feel comfortable serving same-sex couples because of their personal religious beliefs.

Reality: No State That Has Legalized Same-Sex Marriage Has Included These Kinds Of Protections For Individuals. According to Ira C. Lupu and Robert W. Tuttle, law professors at The George Washington University:

Each state's legislation explicitly guarantees the rights of clergy to decide whether to preside at same-sex marriages, and the rights of houses of worship to decide whether to make their facilities available to solemnize or celebrate a same-sex wedding. A few states go further by protecting the rights of religiously affiliated organizations to refuse to treat same-sex marriages equally with opposite-sex marriages. Despite some academic prodding, however, no state has yet been willing to grant public officials or vendors of goods and services related to weddings (e.g., photographers, caterers, wedding planners, florists, and the like) exemptions from state-created obligations to serve without discrimination based on sexual orientation. [emphasis added]

Reality: Allowing Individuals To Refuse Service To Same-Sex Couples Would Be A “Public Policy Disaster.” Mark Strasser, a law professor at the Capital University Law School, directly refutes Wilson’s desire for a so-called “conscience clause” that would allow individuals to turn down service to same-sex couples:

[W]ithout some sort of limiting rationale, this kind of legislation poses two great dangers--either members of the lesbian, gay, bisexual, and transgender (LGBT) community may alone be relegated to a special untouchable status or members of a variety of communities might be subject to ostracism by others, leading, at the very least, to even greater balkanization in this country. The creation of these exemptions may violate constitutional guarantees and, in any event, would be a public policy disaster. While religious liberty should be respected, conscience clause exemptions will create many more difficulties than they will solve. [12 Fl. Coastal L. Rev. 135, Fall 2010, lexis, emphasis added]

Claim: The Government Will Punish Religious Organizations That Oppose Same-Sex Marriage. 

From Wilson’s op-ed:

Mr. Cuomo’s bill fails to protect religious communities from penalty at the hands of the government. It should do so. Such risks are not speculative. San Francisco yanked $3.5 million in social services contracts from the Salvation Army when it refused, for religious reasons, to provide benefits to its employees' same-sex partners. Connecticut, Vermont and the District of Columbia got it right when they expressly protected religious organizations from being “penalize[d]” by the government for such refusals.

Reality: New York Courts Have Already Struck Down Laws Like San Francisco’s. The Salvation Army lost its contract with City of San Francisco for violating a 1996 city ordinance concerning domestic partnerships, not a state marriage equality law. A New York Court of appeals has already struck down a similar ordinance in New York City, ruling that it was pre-empted by state and federal law.

Reality: Other State Marriage Equality Laws Don’t Include These Protections. Wilson’s description of religious protections in Connecticut, Vermont, and DC is highly misleading. Vermont does not protect religious organizations from being penalized by the state government. DC and Connecticut only prohibit penalization in the case of services related to the “solemnization or celebration” of same-sex marriages. They do not protect religious organizations that wish to deny same-sex couples equal benefits while also receiving millions of dollars from contracts with the state government.

Robin Fretwell Wilson Has Ties To Some Of America’s Most Notorious Anti-Gay Groups.

Wilson has made a habit of speaking out against state efforts to legalize same-sex marriage. She spoke out against marriage equality in New Hampshire, Rhode Island, Connecticut, and DC, using many of the same talking points that she’s now using in New York.

In November of 2009, At-Large DC Councilmember David Catania posted a letter to Wilson in which he criticized her for consistently mischaracterizing legal precedent before the DC Council. In the letter, Catania pointed to Wilson’s ties to anti-gay hate groups and raised concerns about her private, political motivations:

I am further concerned that your misrepresentations may not have been accidental or inadvertent. Rather, your purported legal analysis and ethical judgment appear to be clouded by your political agenda. You are a member of the Virginia Marriage Commission, an organ of the Family Foundation of Virginia. The Family Foundation's stated goal is to promote the ideal that marriage "is the union between one man and one woman, [and] is an institution of God and a foundation of civil society."19 One of your colleagues at the Foundation is Maggie Gallagher, one of this country's most virulent opponents of marriage equality.20 The Foundation's partners include other well known right-wing organizations including the Family Research Council, Focus on the Family, and the Alliance Defense Fund. In addition to opposing marriage equality, the Foundation opposes embryonic stem cell research, opposes the use of emergency contraceptives, and promotes the def[u]nding of Planned Parenthood. Your failure to disclose your involvement with this organization, combined with your blatant misrepresentations before the Council, leads me to question the independence of your analysis.

In closing, I am concerned about the ethical implications of your behavior and strongly caution you to consider your professional obligations of competency and candor. The democratic process depends upon an honest dialogue and open disclosure. As a professor of law, you should know better. [emphasis added]


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