Cuomo Marriage Bill Fails — Inexplicitly — To Protect Ordinary Religious Individuals

Governor Cuomo said yesterday he would deliver a marriage equality bill identical to 2009’s failed attempt, “no ifs, ands or buts” about it. Who is it that he is kidding?

Mr. Cuomo’s bill vastly improves the ability of religious communities or agencies of religious organizations to avoid needless clashes over same-sex marriage. But, inexplicably, it fails to offer needed protections to ordinary individuals who also desire for religious reasons to step aside from facilitating same-sex marriages.

The failed 2009 bill offered protections only for clergy, who simply don’t need insulation because of protections already provided by the First Amendment. Mr. Cuomo’s bill delivers far more protection. It protects religious organizations and educational institutions, as well as benevolent organizations, like the Knights of Columbus, from having “to provide accommodations, advantages, facilities, or privileges” to solemnize or celebrate same-sex marriages.

No surprise that Mr. Cuomo’s bill would proffer these protections—they are standard in legislation recognizing same-sex marriage elsewhere. Vermont, Connecticut, New Hampshire, and the District of Columbia have all recognized that merely exempting the clergy is not enough. Like Mr. Cuomo’s bill, three of the four expressly insulate religious dissenters from private law suits.

But significant gaps remain in Mr. Cuomo’s bill.

First, it doesn’t exempt religious social service organizations from placing children with same-sex couples if doing so violates their religious beliefs, as Connecticut did (so long as the organization receives no government funding). However, Mr. Cuomo’s bill does permit religious organizations to take “such action as is calculated by such organization to promote the religious principles for which it is established or maintained.” But who knows what this means?

Second, Mr. Cuomo’s bill fails to protect religious communities from penalty at the hands of the government. It should do so. Such risks are not speculative. San Francisco yanked $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. Connecticut, Vermont and the District of Columbia got it right when they expressly protected religious organizations from being “penalize[d]” by the government for such refusals.

Third, Mr. Cuomo’s bill offers no protection at all for ordinary individuals. Now, many people cannot fathom how recognizing same-sex marriage for one individual can implicate the rights of others. Here’s the short answer: well-intentioned non-discrimination statutes passed during the 1950’s and 1960’s — long before anyone envisioned same-sex marriage — have been used to penalize individuals in ordinary commerce who decline because of religious convictions to assist same-sex couples.

Bakers, photographers, seamstresses, florists and bed-and-breakfast owners who, for religious reasons prefer to step aside from celebrating or facilitating same-sex marriages may be subject to suit under New York’s Human Rights Act. That law authorizes compensatory damages and, for housing discrimination, punitive damages and civil fines too.

New York legislators should allow religious individuals with a traditional view of marriage to step aside so long as it does not cause a substantial hardship for same-sex couples.

Seems reasonable enough.

This middle path not only balances competing interests in a pluralistic democratic society — it has ample precedent in New York law. New York’s public accommodation law already exempts religious organizations and benevolent orders like the Knights of Columbus.

And New York law protects individuals, too, like “Mrs. Murphy” who rents a room to another family in the house where she resides. It is not hard to imagine why Mrs. Murphy, if religious, may not want folks having sex outside marriage in the room next door.

Just as Big Religion needs protection — and gets a lot of it in Mr. Cuomo’s bill — so do ordinary individuals. So, Governor, is this all you can do for the little guy?

Ms. Wilson is a professor of law at Washington and Lee University and co-editor of the book “Same-Sex Marriage and Religious Liberty: Emerging Conflicts.”