Rpld & add S10-b, amd S11, Dom Rel L; add S5-a, Chap of 2011 (as proposed in A. 8354)
Relates to the ability to marry; amends a chapter of the laws of 2011, as proposed in legislative bill number A. 8354, in relation to the statutory construction of such chapter.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8520
SPONSOR: O'Donnell TITLE OF BILL:
An act to amend the domestic relations law, in relation to the ability
to marry; and to amend a chapter of the laws of 2011, amending the
domestic relations law relating to the ability to marry, as proposed in
legislative bill number A.8354, in relation to the statutory
construction of such chapter; and repealing certain provisions of the
domestic relations law relating to parties to a marriage
PURPOSE:
This bill would amend the Marriage Equality Act, which was added by a
chapter of laws of 2011.
SUMMARY OF PROVISIONS:
Section 1 of this bill would repeal Domestic Relations Law (DRL) §10-b,
as added by a chapter of the laws of 2011, and create a new DRL § 10-b
to provide that no religious entity, benevolent organization, not-for-
profit corporation operated, supervised or controlled by a religious
entity, or employee being managed, directed or supervised by any of the
aforementioned entities shall be required to solemnize or celebrate a
marriage, including marriages between same-sex couples, and such entity
or employee would not be subject to legal or regulatory action by state
or local governments for refusing to solemnize or celebrate a marriage.
Further, Section 1 would re-affirm constitutional and statutory princi-
ples afforded to religious entities.
Section 2 of this bill would amend DRL § 11(1), as added by a chapter of
the laws of 2011, to make clear that no member of the clergy acting in
such capacity may be required to perform a marriage or be subject to
legal or regulatory action for refusing to solemnize or celebrate a
marriage.
Section 3 of this bill would add a new Section 5-a to a chapter of the
laws of 2011, amending the DRL to provide that all parts of this act
shall be read together and that if any part of the act is ultimately
deemed invalid through the judicial process and after all appeals in
courts of competent jurisdiction, the remainder shall be considered
invalid. This section would also affirm an aggrieved party's right to
appeal any judicial action arising under the Act.
Section 4 of the bill sets forth the effective date, which shall be the
same date as such chapter of the laws of 2011 takes effect.
EXISTING LAW:
The DRL outlines the requirements and criteria two people must satisfy
to enter into a civil marriage in the state. Although the DRL contains
no specific prohibition against, or allowance for, marriages between
individuals of the same sex, the New York Court of Appeals has held that
the law limits marriage within New York State to different - sex
couples. See Hernandez v. Robles, 7 N.Y .3d 338 (2005).
In recognition of well-established common law, however, New York courts
have also held that marriages between individuals of the same sex legal-
ly performed in other jurisdictions are "entitled to recognition in New
York in the absence of express legislation to the contrary." See Marti-
nez v. City of Monroe, 50 A.D.3d 189 (4th Dep't 2008); see also, Godfrey
v. Spano, 15 Misc. 3d 809 (Sup.Ct. Westchester County 2007) and Funder-
burke v. N.Y. State Dep't of Civil Service, 49 A.D. 3d. 809 (2d Dep't
2008).
Because civil marriage is a relationship sanctioned, licensed and recog-
nized by the state, it does not require the blessing or involvement of
any religious institution. The federal and state Constitutions, as well
as the New York Human Rights Law, guarantee that religious institutions
cannot be forced to marry individuals in violation of their religious
beliefs or otherwise have their freedom of worship curtailed as the
result of same-sex couples being allowed to legally marry in New York,
N.Y. Exec. Law § 296(11). Furthermore, while the New York Human Rights
Law makes it unlawful to discriminate on the basis of sexual orien-
tation, it carves out exemptions for religious institutions and benevo-
lent organizations, See N.Y. Exec. Law § 296 (11) {1}, N.Y. Exec. Law §
292(2).{2}
STATEMENT IN SUPPORT:
The "freedom to marry" is, in the words of the United States Supreme
Court, "one of the vital personal rights essential to the orderly
pursuit of happiness by free people."{3} In New York, however, certain
couples who seek to exercise this personal right may not do so solely
because they are of the same sex. The bar against same-sex couples
entering into marriages exists regardless of whether they are committed
to each other, whether they have lived together for six months or 30
years, whether they have joined their finances or purchased property
together, or whether they have conceived or adopted children. Rather,
same sex couples are simply unable to marry in this State and therefore
are denied the equal freedom to enter into a state-created and legally
secured bond of personal, social and economic significance. This bill
removes the barriers in New York law that currently deprive individuals
of the equal right to marry the person of their choice.
Civil marriage provides a comprehensive structure of state-sanctioned
protections, benefits and mutual responsibilities for couples who are
permitted to marry. In such areas as health care, hospital visitation,
child custody, pension benefits, property ownership, inheritance, taxa-
tion, insurance coverage, and testimonial privileges, married couples
receive important safeguards against the loss or injury of a spouse, and
crucial assurances against legal intrusion into their marital privacy.
New York's more than 50,000 same-sex couples and their families confront
many of the same life challenges as their different-sex counterparts,
but are denied these basic protections. Further, couples who are denied
the State's recognition are denoted, by force of law and policy, as not
equal to couples in other comparable relationships. Couples who are
excluded from marriage are told by the institutions of the State, in
essence, that their solemn commitment to one another has no legal
weight.
Just as the right to marry confers important benefits on individuals,
the institution of marriage produces incalculable benefits for society
by fostering stable familial relationships. Same-sex couples who wish
to marry are not simply looking to obtain additional rights, they are
seeking out substantial responsibilities as well, to undertake signif-
icant and binding obligations to one another, and to lives of "shared
intimacy and mutual financial and emotional support."{4} Granting legal
recognition to these relationships can only strengthen New York's fami-
lies, by extending the ability to participate in this crucial social
institution to all New Yorkers.
For more than two centuries, New York has stood at the forefront in
advancing equal rights for all -- from hosting the women's rights
convention at Seneca Falls, to breaking baseball's color barrier, to
starting the modern "gay rights movement" in New York City four decades
ago. New York legislators and other political leaders, of all parties,
have played important roles in advancing civil rights protections for
all New Yorkers, and in the extension of equal treatment to lesbians and
gay men in particular. For example, in 1983, New York State banned
discrimination based on sexual orientation in state employment by Execu-
tive Order. In 2002, the state extended the same principle to the
private sector by enacting the Sexual Orientation Non-Discrimination
Act. That same year, the state, for the first time, legally recognized
same-sex relationships by extending workers' compensation benefits to
all those who lost a partner on 9/11.
Despite these advances, the institution of civil marriage remains closed
to loving same sex couples. Passage of this bill would remedy this
exclusionary policy, and represent yet another significant step in
granting full and equal rights to all citizens of New York State.
To ensure that the bill does not improperly intrude into matters of
conscience or religious belief, the bill affirms that no member of the
clergy can be compelled to solemnize any marriage. By doing so, this
bill grants equal access to the government-created legal institution of
civil marriage, while leaving the religious institution of marriage to
its own separate, and fully autonomous, sphere.
Beyond the freedom that clergy will retain over marriage decisions, the
bill also ensures that the statutory protections for religious organiza-
tions found in the New York Human Rights law remains intact, including,
guaranteeing that religious institutions remain free to choose who may
use their facilities and halls for marriage ceremonies and celebrations,
to whom they rent their housing accommodations, or to whom they provide
religious services, consistent with their religious principles. Further,
the bill contains language to ensure that benevolent organizations, like
the Knights of Columbus, remain exempt from New York prohibitions
against discrimination in public accommodations, and are not required to
rent social halls to weddings of same-sex or other couples they choose
not to accommodate. N.Y. Exec. Law § 292(9).{5}
BUDGET IMPLICATIONS:
The bill will require additional state expenditures for spousal benefits
for those partners of state employees who are not eligible for such
benefits under current law, and who are married under this legislation.
Under current law, state expenditures for spousal benefits for same-sex
couples are permitted if a couple was legally married in a different
state or if the couple is recognized by the State of New York as domes-
tic partners.
At the same time, however, allowing same-sex marriage would have numer-
ous positive fiscal impacts. A 2007 report by the New York City Comp-
troller detailed numerous sources of added revenue that would result
from enacting marriage equality in New York State, including tax revenue
from additional weddings, higher intake of marital licensing fees and
reduction of means-tested benefit payments as a result of aggregated
marital income. Moreover, any negative budgetary impact from added bene-
fit payments will be limited, as many same-sex couples already enjoy
such benefits through a variety of administrative schemes, or as a
result of out-of-state marriages.
EFFECTIVE DATE:
This bill takes effect on the same date as such chapter of the laws of
2011 takes effect.
FOOTNOTES:
{1} NY. Exec. Law § 296(11) states: "Nothing contained in this section
shall be construed to bar any religious or denominational institution or
organization, or any organization operated for charitable or educational
purposes, which is operated, supervised or controlled by or in
connection with a religious organization, from limiting employment or
sales or rental of housing accommodations or admission to or giving
preference to persons of the same religion or denomination or from
taking such action as is calculated by such organization to promote the
religious principles for which it is established or maintained."
{2} N.Y. Exec. Law § 292(9) states: "...a corporation incorporated under
the benevolent orders law or described in the benevolent orders law but
formed under any other law of this state or a religious corporation
incorporated under the education law or the religious corporations law
shall be deemed to be in its nature distinctly private."
{3} Loving v. Virginia, 388 U.S. 1 (1967).
{4} Hernandez v. Robles, 7 N.Y. 3d 338 (2005) (Kaye, C.J dissenting).
{5} New York Human Rights Law exempts from the public accommodations
non-discrimination law a long list of organizations "incorporated under
the benevolent orders law." N.Y. Exec. Law § 292(9). This list of exempt
organizations expressly includes the Knights of Columbus, N.Y. Ben. Ord.
Law § 2(12), as well as, for example, Masons organizations, id. at §
2(1)-(3), and the Catholic Daughters of America, id. at § 2(23).
STATE OF NEW YORK
________________________________________________________________________
8520
2011-2012 Regular Sessions
IN ASSEMBLY
June 24, 2011
___________
Introduced by M. of A. O'DONNELL -- (at request of the Governor) -- read
once and referred to the Committee on Judiciary
AN ACT to amend the domestic relations law, in relation to the ability
to marry; and to amend a chapter of the laws of 2011, amending the
domestic relations law relating to the ability to marry, as proposed
in legislative bill number A. 8354, in relation to the statutory
construction of such chapter; and repealing certain provisions of the
domestic relations law relating to parties to a marriage
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 10-b of the domestic relations law, as added by a
2 chapter of the laws of 2011, amending the domestic relations law relat-
3 ing to the ability to marry, as proposed in legislative bill number A.
4 8354, is REPEALED and a new section 10-b is added to read as follows:
5 § 10-b. Religious exception. 1. Notwithstanding any state, local or
6 municipal law, rule, regulation, ordinance, or other provision of law to
7 the contrary, a religious entity as defined under the education law or
8 section two of the religious corporations law, or a corporation incorpo-
9 rated under the benevolent orders law or described in the benevolent
10 orders law but formed under any other law of this state, or a not-for-
11 profit corporation operated, supervised, or controlled by a religious
12 corporation, or any employee thereof, being managed, directed, or super-
13 vised by or in conjunction with a religious corporation, benevolent
14 order, or a not-for-profit corporation as described in this subdivision,
15 shall not be required to provide services, accommodations, advantages,
16 facilities, goods, or privileges for the solemnization or celebration of
17 a marriage. Any such refusal to provide services, accommodations, advan-
18 tages, facilities, goods, or privileges shall not create any civil claim
19 or cause of action or result in any state or local government action to
20 penalize, withhold benefits, or discriminate against such religious
21 corporation, benevolent order, a not-for-profit corporation operated,
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12066-08-1
A. 8520 2
1 supervised, or controlled by a religious corporation, or any employee
2 thereof being managed, directed, or supervised by or in conjunction with
3 a religious corporation, benevolent order, or a not-for-profit corpo-
4 ration.
5 2. Notwithstanding any state, local or municipal law or rule, regu-
6 lation, ordinance, or other provision of law to the contrary, nothing in
7 this article shall limit or diminish the right, pursuant to subdivision
8 eleven of section two hundred ninety-six of the executive law, of any
9 religious or denominational institution or organization, or any organ-
10 ization operated for charitable or educational purposes, which is oper-
11 ated, supervised or controlled by or in connection with a religious
12 organization, to limit employment or sales or rental of housing accommo-
13 dations or admission to or give preference to persons of the same reli-
14 gion or denomination or from taking such action as is calculated by such
15 organization to promote the religious principles for which it is estab-
16 lished or maintained.
17 3. Nothing in this section shall be deemed or construed to limit the
18 protections and exemptions otherwise provided to religious organizations
19 under section three of article one of the constitution of the state of
20 New York.
21 § 2. Subdivision 1-a of section 11 of the domestic relations law, as
22 added by a chapter of the laws of 2011, amending the domestic relations
23 law relating to the ability to marry, as proposed in legislative bill
24 number A.8354, is amended to read as follows:
25 1-a. A refusal by a clergyman or minister as defined in section two of
26 the religious corporations law, or Society for Ethical Culture leader to
27 solemnize any marriage under this subdivision shall not create a civil
28 claim or cause of action or result in any state or local government
29 action to penalize, withhold benefits or discriminate against such cler-
30 gyman or minister.
31 § 3. A chapter of the laws of 2011, amending the domestic relations
32 law relating to the ability to marry, as proposed in legislative bill
33 number A. 8354, is amended by adding a new section 5-a to read as
34 follows:
35 § 5-a. This act is to be construed as a whole, and all parts of it are
36 to be read and construed together. If any part of this act shall be
37 adjudged by any court of competent jurisdiction to be invalid, the
38 remainder of this act shall be invalidated. Nothing herein shall be
39 construed to affect the parties' right to appeal the matter.
40 § 4. This act shall take effect on the same date as such chapter of
41 the laws of 2011, takes effect.
