Religious Exemption at Issue in N.Y.'s Gay Marriage Debate

By Alex Weisler (JTA)

Published June 22, 2011.
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When it comes to passing a gay marriage bill in New York State, even many supporters acknowledge that wide-reaching religious exemptions are crucial.

After all, this is the state with the nation’s second-largest number of Catholics and largest number of religiously observant Jews, and many say including exemptions is a legitimate way to address concerns of the religiously observant.

“I’m keeping my fingers crossed that if we’re going to recognize same-sex marriage, we do it in a way that is nuanced,” Robin Fretwell Wilson, a law professor at Washington and Lee University in Virginia, told JTA.

Though robust protection of religious liberties already exists in both New York and federal law, Wilson said she understands why religious groups are pushing to reiterate and strengthen these guarantees.

“You don’t want to put them through a test of violating their conviction or violating their law,” she said.

Exemptions could protect nonprofit organizations, businesses and individuals from being forced to acknowledge same-sex marriages – perhaps so that, for instance, a kosher catering business or a Catholic florist could refuse to provide services for a same-sex wedding.

But some same-sex marriage supporters argue that specifically including exemptions in the bill isn’t necessary because existing law already makes allowances for religious freedom. They charge that the debate over exemptions really is a smokescreen for those who want to defeat the bill.

Ultimately, New York’s experience may serve as a lesson for other states seeking to legalize same-sex marriage through state legislatures, as opposed to the court mandates in states like Iowa.

The question now is whether the focus on religious exemptions derails the bill or whether it allows the bill to overcome religious objections. Gov. Andrew Cuomo strongly supports same-sex marriage, and he reportedly is just shy of the votes he needs in Albany.

Much of the debate over exemptions has centered around private individuals, like bakers or photographers, and businesses like banquet halls. In other states, businesses or individuals refusing to work at same-sex weddings were sued or lost tax-exempt status, opponents of gay marriage say.

Jennifer Pizer, a law professor at the University of California, Los Angeles and an expert on sexual orientation and discrimination, says that’s par for the course in America: You can’t let religious beliefs affect commercial decisions.

“People are free to hold these views – they’re not just free to hold those views, they’re protected.” But, she said, “the current legal system does not permit people engaged in business to discriminate based on the proprietors’ own religious views.”

Pizer said the New York debate over exemptions hearkens back to a time when religious views were used to justify racial segregation and opposition to equal-pay-for-equal-work legislation.

On the other side, Marc Stern, the associate general counsel for legal advocacy at the American Jewish Committee, which has not taken an official stance on the same-sex marriage bill, said the fight for equality does not trump the right to free exercise of religion.

While some religious groups, including the Orthodox Union, Agudath Israel of America, the Catholic League and others have lobbied against New York’s same-sex marriage bill, Stern says their time would have been better spent pushing for more robust religious protections across the board.

“I think they’ve made a major tactical blunder. The handwriting was on the wall on gay rights,” he said, suggesting that the legalization of same-sex marriage is inevitable. “The thing to do is to give up that fight and fight for a broad religious exemption.”

Strictly religious Jews, however, feel they have an obligation to fight back against a bill that would “promote the notion that all intimate relationships are equally acceptable,” said Avi Shafran, director of public affairs at the haredi Orthodox Agudath Israel of America.

“The Jewish religious tradition is emphatic and unambiguous about the wrongness of same-sex relationships,” Shafran said. “Religious organizations cannot impose their will on society, but neither can they – at least Orthodox Jewish ones – shirk their duty to proclaim what is proper and what is not.”

Jay Michaelson, founder of a gay Jewish spiritual group called Nehirim and author of “God vs. Gay? The Religious Case for Equality,” says the Jewish imperative is to fight the demands of religious lobbyists, not to fight gay marriage.

“As American Jews, I don’t think we want to have the churches calling the shots on what our civil policy should be,” Michaelson said. “Protecting one minority protects all.”

Some Jewish organizations cite civil rights as the basis for their support of the marriage legislation.

“The Reform movement certainly believes that all people were created in the image of God,” said Honey Heller, a co-chairwoman of the Reform Jewish Voice of New York State, part of the Reform movement’s social justice arm. “That’s why I get a little concerned about religious exemptions.”

Michaelson criticized the silence of large Jewish organizations on the issue, saying they shouldn’t leave Jewish gay groups to battle it out alone with Orthodox groups like Agudath Israel.

“It would be more effective to have non-LGBT allies say we support religious freedom, we support separation of church and state,” he said.

With the debate in Albany focused not on the morality of gay marriage but on the practicalities of a bill, ideological opponents of same-sex marriage say guaranteeing religious exemptions is better than nothing.

“We would prefer that it not pass,” said Howie Beigelman, deputy director of public policy for the Orthodox Union. “But if it has the exemptions in it that are robust and that do protect everyone, I wouldn’t call it a win, but I would call it the best we could have gotten.”






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