Saturday, June 25, 2011

New York Marriage Equality has Achilles Heel That COULD VOID THE ENTIRE LAW

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These legislators give
New York a perfect 10
By Maurice Lacunza


The passage of New York's marriage equality law makes New York the sixth state to allow marriage. I am going to tell you that it brought tears to my eyes. I see the nation embracing their gay sons, sisters and brothers- and making it right. It should make for tears of joy. Sadly, there are 33 states that have constitutional amendments banning same sex marriage. Equality for all will not be satisfied until the Supreme Court of the United States (SCOTUS) rules that gay people are entitled to the same constitutional rights as any one else. The good news is that there are at least three cases winding through the federal courts which may land at the Supreme Court: Prop 8, DOMA, and DADT. Let's not forget that DADT is still in effect. It will be difficult for the Court to uphold discrimination when there just isn't any credible evidence to show that the discrimination is necessary.  


Today's New York Marriage Act is a victory but it has an Achilles Heel. 


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Gay Marriage here...
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...but probably not here.
Not surprising churches and religious entities do not have to perform gay marriages. Religious entities "shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage. Any such refusal to provide services, accommodations, advantages, facilities, goods, or privileges shall not create any civil claim or cause of action..."  The latter part removes any grounds for a civil claim against any religion who won't perform a gay wedding. 


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This bride really should
have worn a Tux
Another clause will give religious groups permission to hire whomever they want:  "...nothing in this article..shall limit employment or sales or rental of housing accommodations or admission to or give preference to persons of the same religion or denomination..." Presumably that means they don't have to hire gay persons or rent houses to them. Is this language normally inserted into any marriage bill? 


Here is the Achilles Heel: "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." That means that if any part of this law is deemed to be unlawful or is challenged in a court and the court rules in favor of the challenge, then ALL OF THIS MARRIAGE ACT IS VOID. 


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Is this a church property
or should I lie to you
Imagine this scenario: Gay couple wants to rent a house owned by Catholic Charities. They are turned down because the New York Marriage Act allows the Charity to discriminate in hiring and housing accommodations. The young gay couple sue. The Catholic Charity uses the New York Marriage Act as a defense saying that it is within their rights to discriminate against sexual minority housing. The Court rules that the New York Marriage Act is not defensible and the gay couple win the lawsuit. Next comes the non-severability clause. The Catholic Charity moves the Court to declare the New York Marriage Act void- according to the non-severability clause contained therein. How clever. 


Business people with fists up
Margie Gallagher:
You're a great audience!
Who hates the gays? You do!
It looks like the anti-gay people wanted a secret weapon to wipe out the Marriage Equality Act.  I wouldn't be surprised if Margie Gallagher at  National Organization for Marriage (NOM) files a lawsuit incognito- just to challenge the very clause that they helped to get passed. If they can get a future court to deem any of the Act invalid, then the whole thing is invalid. It is a clever strategy. 


The silver lining, if there is one, is that the Marriage Act subordinates to existing laws that govern discrimination against employment and housing. However all it takes is one lawsuit to challenge the religious discrimination and the entire Marriage Act is gone.


Map of New York
Sixth in the Nation
to legalize gay marriage
The fact that these sub-clauses exist is troubling. Great effort went into wording these clauses and an even greater effort went into getting them passed.  Why place a non-severability clause in something as basic and ordinary as marriage?  You don't see a non-severability clause in the world of straight marriage do you? Something is afoot. I hold out hope that SCOTUS will weigh in before we have to waste another moment of our time defending against these insidious attacks from religious fanatics.
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Two New Yorker's tipping their gay hats
to Gay Marriage





Meanwhile, NEW YORK IS ALRIGHT BY ME! 

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