On Monday afternoon, activists on both sides of the same-sex marriage debate flooded the third floor of the State Capitol, toting handmade signs, chanting rhyming slogans and singing religious songs in the fervent belief that after this week nothing would ever be the same.
“If this passes, we will have Sodom and Gomorrah, literalized,” said Ginny Wynn, 80, a grandmother from Delmar, just a few miles outside of Albany. Mrs. Wynn, with a flop of Betty White hair and trembling voice, was standing outside the office of Republican State Senate Majority Leader Dean Skelos, elbowing her way into the spotlight that had just been occupied by a younger, same-sex marriage supporter wearing a yarmulke.
The potential effect of Governor Andrew Cuomo’s push to legalize same-sex marriage in New York is hard to overstate, brimstone and fire aside.
While Mr. Skelos and his Republican delegation continue to demur on whether they’ll allow the bill to come to the floor, and advocates cast about for a 32nd vote, one of the measure’s most ardent opponents—State Senator Ruben Diaz Sr. of the Bronx—said passage was looking “inevitable,” and parties on both sides have begun to consider the potential consequences of the bill’s passage.
On the legal front, Mr. Cuomo is shepherding legislators into a thorny cluster of questions about religious freedom—namely, how to carve out protections for religious organizations that refuse to recognize or do business with same-sex couples while still guaranteeing those couples equal protection under the law. Those exemptions have been the subject of intense conversations between the governor and a handful of wavering Republicans who have not yet publicly pledged their votes.
The most conspicuous holdout is Republican State Senator Greg Ball of the Hudson Valley—a stocky 33-year-old who wears his dark brown cowboy boots to the chamber. “This is a perfect example of a social issue that is controlled by the extreme left and the extreme right,” he told reporters last week. “We’ve got to have a conversation in the middle: talk about real religious carve-outs. [The] governor sends down a bill that just skims the surface on religious carve-outs, still opens up religious organizations to lawsuits and fundamentally isn’t protecting individuals with religious objections.”
Mr. Ball cited the decision by Catholic adoption agencies in Massachusetts to shutter after that state legalized same-sex marriage, choosing to get out of the business of finding homes for developmentally challenged children rather than to place them in the hands of same-sex couples. “I’m not going to vote for something that is going to shut down Catholic adoption agencies or open up religious organizations … or even parents” to lawsuits, Mr. Ball said.
(On Friday, Mr. Ball was open to persuasion and soliciting advice from his Twitter followers: “So, if you were me, how would you vote on gay marriage? Yes or No?” Asked about the results on Monday, as he rushed passed protesters lining the hallways outside Mr. Skelos’s office, Mr. Ball told The Observer: “Oh, Jesus Christ. I think it was like a thousand to one [in favor], but they were contacting me from South America, Europe and everywhere else.”)
After initially resisting Mr. Ball’s objections, the governor has, in recent days, politely acknowledged his concerns.
“However the state defines marriage is the state’s business and it will not be imposed on a religion, and that is a very important point, and I am as equally concerned about that as I am about achieving marriage equality,” Mr. Cuomo told reporters last week. “I believe we can address their concerns, without going over the line, and being too far and discriminating against people. I believe we can accomplish that.”
But it’s not entirely clear whether—or how—the language of Mr. Cuomo’s bill is being modified.
Robin Fretwell Wilson, a law professor at Washington & Lee University who has helped draft exemptions in other states, has sent letters to both Mr. Cuomo and Mr. Ball suggesting how the exemptions might be strengthened. “In other jurisdictions where we’ve done this work, I’ve had a relationship with one person, like a member of the Legislature or the governor’s chief of staff or whoever,” she told The Observer. “In this case, I’ve just been sending letters to the Legislature and hoping somebody reads them.”
Ms. Wilson praised this year’s bill as “a vast improvement” over the bill that failed in 2009, but she said it still lacks the kind of protections that could insulate groups like the Salvation Army and Catholic Charities from being denied tax exemptions and state contracts.
In a detailed letter to Mr. Ball, she cited several cases where New York’s bill fails to offer the same kinds of protections for individual objectors and businesses that have been afforded in states like New Hampshire, Connectict and Vermont. And while opponents have seized on her critique as a reason not to pass the bill, Ms. Wilson said that properly-crafted exemptions could help advance it.
“Exemptions should actually lower the temperature of this debate, not torque it up,” she said. “I think if they put more robust exemptions in, it’s going to put them over the top.”
For now, the uncertainty over exemptions is buying Mr. Skelos some time to negotiate same-sex marriage, alongside a host of other end-of-session issues. “We don’t want to pass a bill and all [of a sudden] there’s a slew of litigation, you know, on a number of these exemptions, so we’re looking to tighten that up,” Mr. Skelos told reporters last week, after a couple of four-hour caucus meetings failed to determine whether Republicans will bring the bill for a vote.
Even with exemptions, the law could face substantial legal challenges. “There will likely be some court cases,” said Jason McGuire, a reverend and executive director of New Yorkers for Constitutional Freedoms, the leading opponents to same-sex marriage in New York. Standing outside Mr. Skelos’s office on Monday, Mr. McGuire, cherub-faced and slightly perspiring, said: “I can see some action occurring, probably no matter which way it goes at this point.”
But there’s some disagreement among the bill’s opponents about how to fight the next phase of the battle, should it come to pass. “The use of the courts to impose same-sex marriage is what the other side typically does,” said Brian Brown, the president of the National Organization for Marriage. “Our focus will be on reshaping the Legislature.” He said it would be “devastating to the Republican Party to have same-sex marriage pass in New York” with the tacit acceptance of Mr. Skelos’s caucus. “There will be primaries,” he promised. “There’s no doubt that any Republican who supports it will be primaried.”
For its Democratic supporters, passing the bill would mark a tremendous victory, at a time when President Barack Obama and the party continue to “evolve” on the issue. New York would become the sixth state to legalize same-sex marriage, but only the second to do so legislatively, and it would be the most populous by far—nearly doubling the number of citizens eligible for such a marriage.
“If the Legislature passes it, it just transforms everything,” said Michael Wald, an emeritus professor of law at Stanford, who said he had just been talking about the potential impact with a colleague when The Observer reached him on Monday. According to Mr. Wald, a victory in New York’s Legislature might prod the Supreme Court to defer on same-sex marriage, as cases from other states begin climbing their way up the appellate courts.
“To not give deference to the legislative determination that gay and nongay couples are married couples—and to allow that to stand in terms of access to Social Security and all the things that the Defense of Marriage Act allows—would be very hard,” Mr. Wald said. “I just think it would put more pressure on the Court to say the federal government can’t make those distinctions.”
In Mr. Wald’s estimation, New York’s Legislature could have a more profound impact on the Court than even President Obama’s executive decision not to defend certain provisions of the Defense of Marriage Act.
And, after being defeated in referendums in California and Maine, a legislative victory in New York could breathe new life into the national movement to legalize same-sex marriage. “I hope other states will look at New York,” Mr. Cuomo said last week. “I believe this is the way of the future. I believe history 10 years from now will look back and say, ‘What took so long?’ I believe this is like interracial marriages. Some states outlawed interracial marriages as late as 1968. Nineteen sixty-eight sounds like a long time ago. It’s not that long ago. I have a car from 1968. It still works. I still drive it.”
“And,” he continued, “I think New York should be at the head of that parade for justice and equality and I believe it will be.”
It’s a parade that could make Mr. Cuomo a national champion for liberal groups—despite an austerity budget passed earlier this year that alienated a number of traditional Democratic allies—and could help advance whatever national aspirations Mr. Cuomo might harbor.
“[M]arriage equality is one of the most vital issues to much of the Democratic base nationwide, especially among activists who volunteer in Presidential primary campaigns,” wrote Ethan Geto, a prominent gay Democratic operative, in an email to The Observer. “Cuomo’s aggressive leadership in this struggle shows guts and an unequivocal commitment to fighting for progressive values.”
Mr. Geto also cited the steady increase in public support for same-sex marriage across the country. “If Governor Cuomo should decide to run for national office in the future, electoral support for marriage equality will no longer be a close call,” he wrote.
But that appeal might be limited to a small group that cares deeply about the issue. “While America’s views on gay marriage have evolved, he’s going to be defined by an issue that doesn’t register with people,” Republican consultant Rick Wilson told The Observer. “His first national exposure will be on an issue that nobody cares about … unless it affects you personally.”
“If it passes, he lives up to everyone’s expectations of a New York liberal,” Mr. Wilson said.
For now, advocates and legislators are left to watch and wait. Last week, Democratic State Senator Joseph Addabbo, who voted against the bill in 2009, stood in a hallway of the Capitol during what was scheduled to have been the session’s last full week.
There is “a lot of misinformation,” Mr. Addabbo said. “There’s a lot of fear of the unknown.” He said his job was “to get the message out there” and to try to be a voice of reason about the potential impact of the bill—such as it is.
“The world will still turn on the same axis; day comes before night, or what have you, and everything will be O.K.,” he said.
apaybarah@observer.com
