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Op-Ed: Gay Marriage No Threat to Religious Rights (Albany Times-Union)

By Melissa Goodman

Gay and lesbian New Yorkers now have the long-deserved freedom to express their love and commitment to each other through marriage. Advocates on both sides of the same-sex marriage debate say it was the last-minute negotiations over a religious exemption that helped make New York the sixth state to welcome the loving commitment of all couples into state-sanctioned marriage. But the last-minute nature of those negotiations has also left people on both sides of the debate confused over what exactly the religious exemption does.

As a civil liberties lawyer who works for an organization equally committed to protecting religious freedom and the right of all New Yorkers to live free from discrimination, I can say the religious exemption merely reiterates existing law and will not create new avenues for discrimination.

First, some facts about what the marriage law actually does. It prohibits the denial of marriage licenses to same-sex couples and requires the government and private entities to treat the marriages of same-sex and opposite-sex couples equally.

The law does, however, create an exception for religious entities. Clergy, houses of worship and the benevolent orders and non-profits they run can refuse to perform a wedding and can decline to open up their spaces for any wedding ceremony they choose.

This exception is by no means “new,” nor objectionable. The First Amendment has always allowed religious entities to decide for themselves whom they will and will not marry. The new marriage law simply preserves and memorializes that right.

Thus, concerns that religious entities, businesses or individuals may now have a free pass to engage in new kinds of discrimination against married lesbian and gay New Yorkers are misplaced. State law prohibits discrimination based on sexual orientation and marital status, and nothing in the marriage law changes that.

New York anti-discrimination law has always had some religious exceptions, but they are very narrow. Under that law, houses of worship and “benevolent orders,” like the Knights of Columbus, may engage in some exclusionary practices that would be unlawful for most other organizations or businesses, such as renting out its banquet halls for only those marriage ceremonies that it chooses to allow there. Religious entities are also permitted to exercise a preference for members of their own faith when making certain hiring or admission decisions.

But New York law is clear that most individuals, businesses and non-profits cannot discriminate against same-sex married couples or their families, even for religious reasons. This means a florist or caterer cannot refuse to provide goods or services to same-sex couples because of a personal religious objection.

And businesses and non-profits — including religiously affiliated entities — controlled by New York law cannot refuse to recognize same-sex marriages to deny benefits they extend to other married couples, such as family leave, insurance or health care.

To those who say the exceptions to the marriage law do not go far enough, that view is inconsistent with history and the law. Neither New York’s anti-discrimination law nor the First Amendment allows religiously affiliated entities engaged in government-like functions to discriminate in the name of religion. So government-funded social services such as adoption agencies or senior centers cannot pick and choose whom they serve to discriminate against people they don’t like.

Nor does the First Amendment permit individuals to evade anti-discrimination laws based on a personal religious objection.

Indeed, courts have repeatedly rebuffed attempts by businesses and individuals to escape laws that require equal treatment of blacks and women.

In 1968, when the owner of a South Carolina barbecue joint argued he was entitled to refuse to serve black customers because he believed it would lead to miscegenation, which he regarded a sin, the Supreme Court emphatically declined to carve out such a religious exception to the Civil Rights Act. The courts have reached the same conclusion in the context of sex discrimination. Discrimination based on sexual orientation is no different.

The marriage law gets the religious exemption question right. It protects clergy and religious entities’ rights to decide whose marriage ceremonies they will perform and also ensures that same-sex couples who choose to marry, and their children, will be treated with the respect and dignity they have always deserved.

Melissa Goodman is the senior litigation and policy counsel for LGBT rights at the New York Civil Liberties Union.

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