Andrew Cuomo Takes a Walk on Religious Liberty

by Kathryn Jean Lopez

New York State senators are using new religious protections in Andrew Cuomo’s Marriage Equality Act as cover, but the legislation leaves out the “most important” protections, according to Robin Wilson, law professor at Washington and Lee University, an expert on religious liberty and public policy.

In a letter to state senator Greg Ball, Wilson writes: “The real protection missing from the proposed Marriage Equality Act is express protection from penalty at the hands of the government. Such risks are not speculative.” This is not a mere academic exercise. Wilson spells out in the latter: “The city of San Francisco stripped $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. In light of such risks, Connecticut, Vermont and even the District of Columbia saw fit to expressly protect religious organizations from being ‘penalize[d]’ by the government for such refusals.”

This, Wilson tells me, was “the beachhold” religious institutions need to be assured “that they won’t be punished in the hands of the government.” As she points out in specific detail in her letter to Ball, “States that cared about the issue made that express.”

Would Catholic Charities be penalized if they opted out of adoptions involving gay couples? Would a photographer be in legal danger if he opted out of working on a gay wedding? “It is not at all clear,” Wilson says.

Wilson continues: “The proposed Marriage Equality Act also provides no protections for ordinary individuals. Bakers, photographers, seamstresses, florists and B&B owners who, for religious reasons prefer to step aside from celebrating or facilitating same-sex marriage may be subject to suit under New York’s Human Rights Act. “

She points out that same-sex marriage laws elsewhere expressly insulate religious organizations and individuals from needless clashes over same-sex marriages” in ways New York law does not.

“Robust religious liberty protections constitute a middle path that allows the Legislature to balance compelling, competing interests in a plural democratic society,” Wilson writes. The proposed Marriage Equality Act does not have robust religious liberty protections.

“Make it express,” Wilson advises. In its current form, she says, Governor Cuomo “has walked,” leaving the most important religious-liberty questions unclear at best.

The bill passed the Empire State senate yesterday and may be voted on in the senate as early as today or tomorrow. It is currently one vote short. 

If you live in New York, you might want to make sure your state senator know you expect more. You expect religious-liberty and conscience to be protected. Everyone throwing around the word “tolerance” in this debate about remaking the American family (in the words of one state senator) ought to be called on this. 

(More on the Empire State push for same-sex marriage here and here.)