Same-Sex Marriage Opponents Mull Legal, Political Challenges if Bill Passes

Many opposed to the same-sex marriage bill being discussed in Albany say it's impossible to predict what specific legal challenges would surface if gay marriage passed in the state — but legal and political ramifications are likely, experts said.

Republicans are working to refine the wording on religious exemptions, and since the language of the bill has yet to be finalized it's difficult to map out an action plan in the event the Albany says "I do" to legalizing same-sex marriages after days of wrangling.

"There may be potential challenges in terms of religious liberty," said Dennis Poust of the New York State Catholic Conference, "but that will come up based on the final language of the bill. It's impossible to predict right now what kind of litigation there may be."

Those opposed to same-sex marriage say they are concerned that religious individuals or organizations that aren't covered by the bill's current exemptions will be slapped with lawsuits if they refuse to provide services or facilities for same-sex marriages. Protections for these religious groups is the final issue being discussed. 

The current bill – introduced by Governor Andrew Cuomo last Tuesday – prohibits civil claims against any "benevolent organization" or "religious corporation" that refuses to provide "accommodations, advantages, facilities or privileges" in connection with same-sex marriages.  

Poust said if the bill passes, he expects lawsuits against Catholic organizations that do not fit into those categories under state law.

It is currently illegal for a business to discriminate on the basis of sexual orientation in providing services or facilities, under New York's Sexual Orientation Non-Discrimination (SONDA) of 2003. But state law already allows an exemption for religious institutions and benevolent organizations.

"The bill doesn't add anything, but its language just makes it clear that it wasn't unintentionally amending prior law,” said Michael Dorf, a professor of law at Cornell University.

Dorf said any attempt to provide religious exemptions to private individuals would essentially represent a partial repeal of SONDA because private individuals — such as a florist who refuses to provide flowers for a same-sex wedding, or a caterer who doesn’t want to cook for a same-sex wedding reception— are not currently exempted under that law.

In 2006, the New York State Court of Appeals decided that there was no constitutional right to same-sex marriage, but did indicate that the legislature was free to change the law.   

Advocates say they have already begun mobilizing to mount political challenges against the bill's Republican supporters.  

"I think the only option for us is clean house with the legislature," said Duane Motley of New Yorkers for Constitutional Freedoms.  

Motley says "credible candidates" have already come forward to pledge they will run against Jim Alesi of Rochester and Roy McDonald of Saratoga in the next primaries — were the first two Senate Republicans to announce their support of the measure.  

Mike Long, who heads the state conservative party, has vowed he will yank support from all Republicans who vote yes on same-sex marriage.  

"I can assure you that as we look towards the election process in 2012, there will be ramifications," said Jason McGuire, executive director orf New Yorkers for Constitutional Freedoms. "Already people are popping up and asking, 'What can we do?'"