4 Questions: Civil Rights Attorney Considers Implications of Marriage Equality Bill

Now that the marriage equality law has passed and emotions have settled on both sides, what are the real implications for New Yorkers and the rest of the country?

How will the law affect couples currently benefitting from domestic partner benefits? What about the Defense of Marriage Act? What about the recent brief filed by the Obama administration?

Who better to ask than a civil rights attorney. Robert Herbst, who lives in Larchmont and practices civil rights law, agreed to take on 4 Questions about the issue.

What will happen to domestic partnerships in New York now that, in theory, everyone can marry? If so, is it intrusive to require people to get married to keep their benefits?  

Before we get to benefits, we first need to ask what is likely to happen within the gay community itself. 

I was discussing this just last week with the son of my college roommate, who announced that he and his significant (gay) other (who live out-of-state) were now domestic partners. He was asked if they were now going to come to New York to get married, and I was expecting a quick “you bet.” But his response was much more measured.

He said that marriage is a big step in the gay community, and indicated that he and his partner were not yet ready to consider marriage, although it might happen someday. 

So I suspect that there may be fewer gay marriages than expected, at least at first, led by committed older couples who have been together a long time, followed by younger couples as the concept catches on and gains increasing currency. 

I, therefore, expect the need and demand for domestic partnerships to continue in New York, and I would expect ... employers to come under increasing pressure not to eliminate domestic partner benefit programs. 

Gay marriage provides many more benefits as a matter of right than domestic partnerships, but those partners satisfied by those benefits would have to marry to get them if domestic partnership programs are eliminated.  

As many heterosexuals know only too well, gaining access to benefits is often not a great reason to marry, so let’s hope domestic partnerships remain a viable choice.

What are the protections that religious institutions received in the amendments to the marriage equality bill? In discussion, the example always used is that religious institutions wouldn't be required to perform ceremonies or rent space to same sex couples. But what about religious schools and hospitals? Could they deny employment to a teacher with a same sex spouse in a religious school or enrollment to the child of a same sex couple? 

The exemptions to religious institutions in the gay marriage bill are what enabled it to pass. They were so important to the swing Republicans that the exemptions were made “inseverable.” That means if the religious exemptions are later held invalid, the whole gay marriage law goes down with them. 

The protections to religious institutions, clergy and employees insulate them from any state or local governmental action to sue them for discrimination or to otherwise penalize or withhold benefits from them for barring access to same sex marriage ceremonies or for failing to provide services for such ceremonies. 

All religious corporations in the state are exempt, as are benevolent orders or not-for-profit corporations operated, supervised or controlled by such religious corporations, including but not limited to not-for-profit corporations that operate schools and hospitals. 

The provisions do not change previously applicable law with respect to employment of teachers with a same sex spouse or a child of a same sex couple. 

The New York State and City Human Rights Laws previously provided some protections against employment discrimination on the ground of sexual orientation, and those protections continue. 

New York is the sixth state to allow same-sex marriage. On a basic level, are couples married in one state legally married in all 50? What happens if a couple married in one state, moves to another where their union has been expressly legislated against?

The Defense of Marriage Act was passed specifically to provide a gay marriage exception to the general rule that marriages in one state, like court judgments, are recognized by all other states. 

So until that act is tested in the courts, there is no clear answer.  

The Obama administration just filed a brief refusing to defend the act on the ground that it is unconstitutional. 

Prior to the passage of the act, approximately 10 states had passed their own laws declining to recognize same sex marriages. If a state expressly legislates against recognition of gay marriages, recognition will not be provided unless or until a court determines that such legislation is unconstitutional.  

If the Defense of Marriage Act is held unconstitutional, expect to see these non-recognition laws come under increasing attack. 

What do you think wil be the first test of the new law?

I am not sure it will be challenged. Most litigation over same sex marriage has occurred in the 41 states that have banned it, not the few states that have authorized it by legislation.  

Just about all of the gay marriage litigation was commenced in an effort to hold a ban unconstitutional or otherwise invalid, rather than to challenge legislative action authorizing gay marriage. 

As noted above, the Obama administration just filed a brief declining to defend the Defense of Marriage Act on the ground that it is unconstitutional. Accordingly, there is good reason to believe that New York’s gay marriage act will survive unchallenged.