senate Bill S5857

2011-2012 Legislative Session

Relates to the ability to marry; amends a chapter of the laws of 2011, as proposed in legislative bill number A. 8354, in relation to the statutory construction of such chapter

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Jun 24, 2011 referred to rules

S5857 - Bill Details

See Assembly Version of this Bill:
A8520
Current Committee:
Law Section:
Domestic Relations Law
Laws Affected:
Rpld & add §10-b, amd §11, Dom Rel L; add §5-a, Chap of 2011 (as proposed in A. 8354)

S5857 - Bill Texts

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Relates to the ability to marry; amends a chapter of the laws of 2011, as proposed in legislative bill number A. 8354, in relation to the statutory construction of such chapter.

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BILL NUMBER:S5857

TITLE OF BILL:

An act
to amend the domestic relations law, in relation to the ability
to marry; and to amend a chapter of the laws of 2011, amending the
domestic relations law relating to the ability to marry, as proposed
in legislative bill number A.8354, in relation to the statutory
construction of such chapter; and repealing
certain provisions of the domestic relations law relating
to parties to a marriage

PURPOSE:

This bill would amend the Marriage Equality Act, which was added by a
chapter of laws of 2011.

SUMMARY OF PROVISIONS:

Section 1 of this bill would repeal Domestic Relations Law (DRL)
§10-b, as added by a chapter of the laws of 2011, and create a new DRL
§ 10-b to provide that no religious entity, benevolent organization,
not-for-profit corporation operated, supervised or controlled by a
religious entity, or employee being managed, directed or supervised
by any of the aforementioned entities shall be required to solemnize
or celebrate a marriage, including marriages between same-sex
couples, and such entity or employee would not be subject to legal or
regulatory action by state or local governments for refusing to
solemnize or celebrate a marriage. Further, Section 1 would re-affirm
constitutional and statutory principles afforded to religious entities.

Section 2 of this bill would amend DRL § 11(1), as added by a
chapter of the laws of 2011, to make dear that no member of the
clergy acting in that capacity may be required to perform a marriage
or be subject to legal or regulatory action for refusing to solemnize
or celebrate a marriage.

Section 3 of this bill would add a new Section 5-a to a chapter of the
laws of 2011, amending the DRL to provide that all parts of this act
shall be read together and that if any part of the act is ultimately
deemed invalid through the judicial process, the remainder shall be
considered invalid. This section would also affirm an aggrieved
party's right to appeal any judicial action arising under the Act.

Section 4 of the bill sets forth the effective date, which shall be
the same date as such chapter of the laws of 2011 takes effect.

EXISTING LAW:

The DRL outlines the requirements and criteria two people must satisfy
to enter into a civil marriage in the state, Although the DRL
contains no specific prohibition against, or allowance for, marriages
between individuals of the same sex, the New York Court of Appeals has
held that the law limits marriage within New York State to different,
sex couples. See Hernandez v. Robles, 7 N.Y .3d 338 (2005).


In recognition of well, established common law, however, New York
courts have also held that marriages between individuals of the
same sex legally performed in other jurisdictions are "entitled to
recognition in New York in the absence of express legislation to the
contrary." See Martinez v. City of Monroe, 50 A.D.3d 189 (4th Dep't
2008); see also, Godfrey v Spano, 15 Misc. 3d 809 (Sup.Ct,
Westchester County 2007) and Funderburke v, N.Y. State Dep't of
Civil Service, 49 A.D. 3d. 809 (2d Dep't 2008).

Because civil marriage is a relationship sanctioned, licensed and
recognized by the state, it does not require the blessing or
involvement of any religious institution. The federal and state
Constitutions, as well as the New York Human Rights Law, guarantee
that religious institutions cannot be forced to marry individuals in
violation of their religious beliefs or otherwise have their freedom
of worship curtailed as the result of same,sex couples being allowed
to legally marry in New York, N.Y. Exec. Law § 296(11). Furthermore,
while the New York Human Rights Law makes it unlawful
to discriminate on the basis of sexual orientation, it carves out
exemptions for religious institutions and benevolent organizations,
See N.Y. Exec. Law § 296 (11) (1), N.Y. Exec. Law § 292(2) (2)

STATEMENT IN SUPPORT::

The "freedom to marry" is, in the words of the United States Supreme
Court, "one of the vital personal rights essential to the orderly
pursuit of happiness by free people."(3) In New York, however, certain
couples who seek to exercise this personal right may not do so solely
because they are of the same sex, The bar against same, sex couples
entering into marriages exists regardless of whether they are
committed to each other, whether they have lived together for six
months or 30 years, whether they have joined their finances or
purchased property together, or whether they have conceived or
adopted children, Rather, same sex couples are simply unable to marry
in this State, and therefore are denied the equal freedom to enter
into a state,created and legally secured bond of personal, social and
economic significance, This bill removes the
barriers in New York law that currently deprive individuals of the
equal right to marry the person of their choice.

Civil marriage provides a comprehensive structure of state-sanctioned
protections, benefits and mutual responsibilities for couples who are
permitted to marry. In such areas as health care, hospital
visitation, child custody. pension benefits, property ownership,
inheritance, taxation, insurance coverage, and testimonial
privileges, married couples receive important safeguards against the
loss or injury of a spouse, and crucial assurances against legal
intrusion into their marital privacy. New York's more than 50,000
same-sex couples and their families confront many of the same life
challenges as their different-sex counterparts, but are denied these
basic protections. Further, couples who are denied the State's
recognition are denoted, by force of law and policy, as not equal to
couples in other comparable relationships. Couples who are excluded
from marriage are told by the institutions of the State, in essence,
that their solemn commitment to one another has no legal weight.


Just as the right to marry confers important benefits on individuals,
the institution of marriage produces incalculable benefits for
society by fostering stable familial relationships.
Same-sex couples who wish to marry are not simply looking to obtain
additional rights, they are seeking out substantial responsibilities
as well, to undertake significant and binding obligations to one
another, and to lives of "shared intimacy and mutual financial and
emotional support.(4) Granting legal recognition to these
relationships can only strengthen New York's families, by extending
the ability to participate in this crucial social institution to all
New Yorkers.

For more than two centuries, New York has stood at the forefront in
advancing equal rights for all -- from hosting the women's rights
convention at Seneca Falls, to breaking baseball's color barrier, to
starting the modern "gay rights movement" in New York City four
decades ago. New York legislators and other political leaders, of all
parties, have played important roles in advancing civil rights
protections for all New Yorkers, and in the extension of equal
treatment to lesbians and gay men in particular. For example, in
1983, New York State banned discrimination based on sexual
orientation in state employment by Executive Order. In 2002, the
state extended the same principle to the private sector by enacting
the Sexual Orientation Non-Discrimination Act. That same year, the
state, for the first time, legally recognized same-sex relationships
by extending workers' compensation benefits to all those who lost a
partner on 9/11.

Despite these advances, the institution of civil marriage remains
closed to loving same sex couples. Passage of this bill would remedy
this exclusionary policy, and represent yet another significant step
in granting full and equal rights to all citizens of New York State.

To ensure that the bill does not improperly intrude into matters of
conscience or religious belief, the bill affirms that no member of
the clergy can be compelled to solemnize any marriage.
By doing so, this bill grants equal access to the government-created
legal institution of civil marriage, while leaving the religious
institution of marriage to its own separate, and fully autonomous,
sphere.

Beyond the freedom that clergy will retain over marriage decisions,
the bill also ensures that the statutory protections for religious
organizations found in the New York Human Rights law remains intact,
including, guaranteeing that religious institutions remain free to
choose who may use their facilities and halls for marriage ceremonies
and celebrations, to whom they rent their housing accommodations, or
to whom they provide religious services, consistent with their
religious principles. Further, the bill contains language to ensure
that benevolent organizations, like the Knights of Columbus, remain
exempt from New York prohibitions against discrimination in public
accommodations, and are not be required to rent social halls to
weddings of same-sex or other couples they choose not to
accommodate. N.Y. Exec. Law § 292(9).(5)

BUDGET IMPLICATIONS:


The bill will require additional state expenditures for spousal
benefits for those partners of state employees who are not eligible
for such benefits under current law, and who are married under this
legislation. Under current law, state expenditures for spousal
benefits for same-sex couples are permitted if a couple was legally
married in a different state or if the couple is recognized by the
State of New York as a domestic partners.

At the same time, however, allowing same-sex marriage would have
numerous positive fiscal impacts. A 2007 report by the New York City
Comptroller detailed numerous sources of added revenue that would
result from enacting marriage equality in New York State, including
tax revenue from additional weddings, higher intake of marital
licensing fees and reduction of means-tested benefit payments as a
result of aggregated marital income. Moreover, any negative budgetary
impact from added benefit payments will be limited, as many same-sex
couples already enjoy such benefits through a variety of
administrative schemes, or as a result of out-of-state marriages.

EFFECTIVE DATE:

This bill takes effect on the same date as such chapter of the laws of
2011 takes effect.

FOOTNOTES:

(1) NY. Exec Law § 296(11) states: "Nothing contained in this
section shall be construed to bar any religious or
denominational institution or
organization, or any organization operated for charitable or
educational purposes, which is operated, supervised or controlled by or
in connection with a religious organization, from limiting employment
or sales of housing accommodations or admission to or giving
preference to persons of the same religion or denomination or from
taking such action as is calculated by such organization to promote
the religious principles for which it is established or maintained.

(2) N.Y. Exec, Law § 292(9) states: "...a corporation incorporated
under the benevolent orders law or described in the benevolent
orders law but formed under any other law of this state or a religious
corporation incorporated under the education law or the religious
corporations law shall be deemed to be in its nature distinctly
private."

(3) Loving v. Virginia, 388 U.S. 1 (1967).

(4) Hernandez v. Robles, 7 N.Y. 3d 338 (2005) (Kaye, C.J dissenting).

(5) New York Human Rights Law exempts from the public accommodations
non-discrimination law a long list of organizations "incorporated
under the benevolent orders law." N.Y. Exec. Law § 292(9). This list
of exempt organizations expressly includes the Knights of Columbus,
N.Y. Ben. Ord. Law § 2(12), as well as, for example,
Masons organizations, id. at § 2(1)-(3), and the Catholic Daughters
of America, id at § 2(23).


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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5857

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 24, 2011
                               ___________

Introduced by COMMITTEE ON RULES -- (at request of the Governor) -- read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Rules

AN ACT to amend the domestic relations law, in relation to  the  ability
  to  marry;  and  to  amend a chapter of the laws of 2011, amending the
  domestic relations law relating to the ability to marry,  as  proposed
  in  legislative  bill  number  A.  8354,  in relation to the statutory
  construction of such chapter; and repealing certain provisions of  the
  domestic relations law relating to parties to a marriage

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 10-b of the domestic relations law, as added  by  a
chapter  of the laws of 2011, amending the domestic relations law relat-
ing to the ability to marry, as proposed in legislative bill  number  A.
8354, is REPEALED and a new section 10-b is added to read as follows:
  S  10-B.  RELIGIOUS  EXCEPTION. 1. NOTWITHSTANDING ANY STATE, LOCAL OR
MUNICIPAL LAW, RULE, REGULATION, ORDINANCE, OR OTHER PROVISION OF LAW TO
THE CONTRARY, A RELIGIOUS ENTITY AS DEFINED UNDER THE EDUCATION  LAW  OR
SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW, OR A CORPORATION INCORPO-
RATED  UNDER  THE  BENEVOLENT  ORDERS LAW OR DESCRIBED IN THE BENEVOLENT
ORDERS LAW  BUT  FORMED  UNDER  ANY  OTHER  LAW  OF  THIS  STATE,  OR  A
NOT-FOR-PROFIT  CORPORATION  OPERATED,  SUPERVISED,  OR  CONTROLLED BY A
RELIGIOUS CORPORATION, OR ANY EMPLOYEE THEREOF, BEING MANAGED, DIRECTED,
OR SUPERVISED BY OR IN CONJUNCTION WITH A RELIGIOUS CORPORATION, BENEVO-
LENT ORDER, OR A NOT-FOR-PROFIT CORPORATION AS DESCRIBED IN THIS  SUBDI-
VISION,  SHALL  NOT  BE  REQUIRED  TO  PROVIDE SERVICES, ACCOMMODATIONS,
ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES FOR  THE  SOLEMNIZATION  OR
CELEBRATION  OF A MARRIAGE. ANY SUCH REFUSAL TO PROVIDE SERVICES, ACCOM-
MODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES SHALL NOT CREATE
ANY CIVIL CLAIM OR CAUSE OF ACTION OR  RESULT  IN  ANY  STATE  OR  LOCAL
GOVERNMENT  ACTION  TO  PENALIZE,  WITHHOLD  BENEFITS,  OR  DISCRIMINATE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12066-08-1

S. 5857                             2

AGAINST SUCH RELIGIOUS CORPORATION, BENEVOLENT ORDER,  A  NOT-FOR-PROFIT
CORPORATION  OPERATED,  SUPERVISED,  OR CONTROLLED BY A RELIGIOUS CORPO-
RATION, OR ANY EMPLOYEE THEREOF BEING MANAGED, DIRECTED,  OR  SUPERVISED
BY  OR IN CONJUNCTION WITH A RELIGIOUS CORPORATION, BENEVOLENT ORDER, OR
A NOT-FOR-PROFIT CORPORATION.
  2. NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW  OR  RULE,  REGU-
LATION, ORDINANCE, OR OTHER PROVISION OF LAW TO THE CONTRARY, NOTHING IN
THIS  ARTICLE SHALL LIMIT OR DIMINISH THE RIGHT, PURSUANT TO SUBDIVISION
ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE  LAW,  OF  ANY
RELIGIOUS  OR  DENOMINATIONAL INSTITUTION OR ORGANIZATION, OR ANY ORGAN-
IZATION OPERATED FOR CHARITABLE OR EDUCATIONAL PURPOSES, WHICH IS  OPER-
ATED,  SUPERVISED  OR  CONTROLLED  BY  OR IN CONNECTION WITH A RELIGIOUS
ORGANIZATION, TO LIMIT EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMO-
DATIONS OR ADMISSION TO OR GIVE PREFERENCE TO PERSONS OF THE SAME  RELI-
GION OR DENOMINATION OR FROM TAKING SUCH ACTION AS IS CALCULATED BY SUCH
ORGANIZATION  TO PROMOTE THE RELIGIOUS PRINCIPLES FOR WHICH IT IS ESTAB-
LISHED OR MAINTAINED.
  3. NOTHING IN THIS SECTION SHALL BE DEEMED OR CONSTRUED TO  LIMIT  THE
PROTECTIONS AND EXEMPTIONS OTHERWISE PROVIDED TO RELIGIOUS ORGANIZATIONS
UNDER  SECTION  THREE OF ARTICLE ONE OF THE CONSTITUTION OF THE STATE OF
NEW YORK.
  S 2.  Subdivision 1-a of section 11 of the domestic relations law,  as
added  by a chapter of the laws of 2011, amending the domestic relations
law relating to the ability to marry, as proposed  in  legislative  bill
number A.8354, is amended to read as follows:
  1-a. A refusal by a clergyman or minister as defined in section two of
the religious corporations law, or Society for Ethical Culture leader to
solemnize  any  marriage under this subdivision shall not create a civil
claim or cause of action OR RESULT IN  ANY  STATE  OR  LOCAL  GOVERNMENT
ACTION TO PENALIZE, WITHHOLD BENEFITS OR DISCRIMINATE AGAINST SUCH CLER-
GYMAN OR MINISTER.
  S  3.  A  chapter of the laws of 2011, amending the domestic relations
law relating to the ability to marry, as proposed  in  legislative  bill
number  A.  8354,  is  amended  by  adding  a new section 5-a to read as
follows:
  S 5-A. THIS ACT IS TO BE CONSTRUED AS A WHOLE, AND ALL PARTS OF IT ARE
TO BE READ AND CONSTRUED TOGETHER.  IF ANY PART OF  THIS  ACT  SHALL  BE
ADJUDGED  BY  ANY  COURT  OF  COMPETENT  JURISDICTION TO BE INVALID, THE
REMAINDER OF THIS ACT SHALL BE INVALIDATED.   NOTHING  HEREIN  SHALL  BE
CONSTRUED TO AFFECT THE PARTIES' RIGHT TO APPEAL THE MATTER.
  S  4.  This  act shall take effect on the same date as such chapter of
the laws of 2011, takes effect.

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