Ashley Dunn, Staff Attorney at Gay & Lesbian Advocates & Defenders, argues that despite the legalization of same-sex marriage in New York, legal discrimination remains in the form of federal legislation and the increasing trend of broad religious exemptions…

The efforts of both parties and the tireless work of advocates on the ground which led to the passage of legislation bringing marriage equality to New York last week must be applauded. It is no doubt an important step forward in the movement. However, we cannot forget the pervasive discrimination that LGBT people, including those who will take advantage of the freedom to marry in New York, still face in its wake.

While different-sex couples who marry can expect automatic eligibility for spousal protections from many federal programs, including Social Security, family health insurance, and family medical leave, same-sex couples who marry are categorically excluded from these critical legal safety nets because of the Defense of Marriage Act (DOMA), which defines marriage as between one man and one woman for all federal purposes. There are several ongoing lawsuits challenging DOMA’s constitutionality, including Gill v. Office of Personnel Management. In that case, Judge Joseph Tauro of the US District Court for the District of Massachusetts ruled that DOMA’s wholesale refusal to recognize the marriages of same-sex couples violates the constitutional guarantee of equal protection under the law. The case is currently on appeal in the US Court of Appeals for the First Circuit. While President Obama and the Department of Justice decided they could no longer defend the constitutionality of this blatantly discriminatory law in February, it will remain in effect until repealed by Congress or a final resolution is issued by the Supreme Court.

Additionally, across the country, there has been an increasing trend of including ever-expanding religious exemptions within marriage equality and civil union laws, and New York is no exception. Exempting clergy from solemnizing same-sex marriages is harmless, albeit redundant. However, these new religious exemptions propose to do far more—perhaps more than people tend to realize. The language of New York’s marriage equality legislation provides that religiously affiliated and benevolent organizations may take “such action as is calculated … to promote the religious principles for which it is established or maintained.” In essence, the law enshrines discrimination. While it is unclear exactly what the ramifications of such a provision will be, there is concern that it allows religious organizations to choose not to recognize the legal marriages of same-sex couples. For example, a Catholic hospital could choose not to allow a woman to make medical decisions on behalf of her wife, and a Catholic university could deny family medical leave to gay employees.

Even more troubling is the final clause of New York’s marriage equality legislation which essentially works as a “poison pill” for any same-sex couple who would challenge the constitutionality of these discriminatory practices in litigation—it contains a severability provision providing that if a court declares any part of the legislation to be invalid, the “remainder of this act shall be invalidated” as well. Therefore, if any part of the religious exemption language is successfully challenged in court, marriage equality will disappear in New York.

Thus, while the passage of marriage equality in New York is a momentous occasion, it does not bring an end to the discrimination faced by same-sex couples in the Empire State.

Ashley Dunn is a graduate of Harvard Law School. Before joining GLAD, she was a legal fellow from the New York law firm Dewey & LeBoeuf LLP. Dunn has previously worked in Pittsburgh for the Office of the United States Attorney for the Western District of Pennsylvania and the Department of Economic Development in Allegheny County.

Suggested citation: Ashley Dunn, New York Marriage Bill Does Not End Legal Discrimination, JURIST – Hotline, July 1, 2011, http://jurist.org/hotline/2011/07/ashley-dunn-new-york-discrimination.php.