The canary, a songbird species, was used as recently as 1987 in the coal mining industry to warn miners of the danger of toxic gas buildup.  It’s not that the canaries were trained to sing out a warning, but rather, they would succumb to the toxic gases before human miners could – and the cessation of the chirping would also provide an audible indication that something could be amiss.

The three ring circus in the closing days of the 2011 New York legislative session, with controversy swirling around the extension of rent control, the imposition of a 2% cap on school tax increases, and the marriage “equality” bill, is providing advocates for GENDA (The Gender Expression Non-Discrimination Act) a foretaste of what the scenario might be for the 2012 session, if GENDA were to be taken up by the Republican-controlled state senate.

There were two marriage bills considered by the Assembly, both of them chiefly sponsored by Assemblymember Danny O’Donnell, who, like his celebrity sister Rosie, is openly gay.

In this blog essay, I am going to set both of them out and analyze the evolution of the “poison pill” up to last week.Here is the original bill, A7600:

S T A T E  O F  N E W  Y O R K

7600

2011-2012 Regular Sessions

I N ASSEMBLY

May 10, 2011

Introduced by M. of A. O’DONNELL — read once and referred to the Committee on Judiciary

AN ACT to amend the domestic relations law, in relation to the ability to marry

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

Section 1. Legislative intent. Marriage is a fundamental human right. Same-sex couples and their children should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society. For the welfare of the community and in fairness to all New Yorkers, this act formally recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex. It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law. The omission from this act of changes to other provisions of law shall not be construed as a legislative intent to preserve any legal distinction between same-sex couples and different-sex couples with respect to marriage. The legislature intends that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage, or which in any other way may be inconsistent with this act, be construed in a gender-neutral manner or in any way necessary to effectuate the intent of this act.

S 2. The domestic relations law is amended by adding a new section 10-a to read as follows:

S 10-A. SEX OF PARTIES. 1. A MARRIAGE THAT IS OTHERWISE VALID SHALL BE VALID REGARDLESS OF WHETHER THE PARTIES TO THE MARRIAGE ARE OF THE SAME OR DIFFERENT SEX.

2. NO GOVERNMENT TREATMENT OR LEGAL STATUS, EFFECT, RIGHT, BENEFIT, PRIVILEGE, PROTECTION OR RESPONSIBILITY RELATING TO MARRIAGE, WHETHER

DERIVING FROM STATUTE, ADMINISTRATIVE OR COURT RULE, PUBLIC POLICY, COMMON LAW OR ANY OTHER SOURCE OF LAW, SHALL DIFFER BASED ON THE PARTIES TO THE MARRIAGE BEING OR HAVING BEEN OF THE SAME SEX RATHER THAN A DIFFERENT SEX. WHEN NECESSARY TO IMPLEMENT THE RIGHTS AND RESPONSIBILITIES OF SPOUSES UNDER THE LAW, ALL GENDER-SPECIFIC LANGUAGE OR TERMS SHALL BE CONSTRUED IN A GENDER-NEUTRAL MANNER IN ALL SUCH SOURCES OF LAW.

S 3. Section 13 of the domestic relations law, as amended by chapter 720 of the laws of 1957, is amended to read as follows:

S 13. Marriage licenses. It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state and to deliver said license, within sixty days, to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed. In case of a marriage contracted pursuant to subdivision four of section eleven of this chapter, such license shall be delivered to the judge of the court of record before whom the acknowledgment is to be taken. If either party to the marriage resides upon an island located not less than twenty-five miles from the office or residence of the town clerk of the town of which such island is a part, and if such office or residence is not on such island such license may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage licenses, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this section with the town clerk of such town. NO APPLICATION FOR A MARRIAGE LICENSE SHALL BE DENIED ON THE GROUND THAT THE PARTIES ARE OF THE SAME, OR A DIFFERENT, SEX.

S 4. Subdivision 1 of section 11 of the domestic relations law, as amended by chapter 319 of the laws of 1959, is amended to read as follows:

1. A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union; PROVIDED THAT NO CLERGYMAN, MINISTER OR SOCIETY FOR ETHICAL CULTURE LEADER SHALL BE REQUIRED TO SOLEMNIZE ANY MARRIAGE WHEN ACTING IN HIS OR HER CAPACITY UNDER THIS SUBDIVISION.

S 5. This act shall take effect immediately.

Now, let’s take a look at the bill introduced by Assemblymember O’Donnell, at the request of Governor Andrew Cuomo, who is reported to have had discussions with at least some Republican leaders before hammering out some “poison pill” language for the bill  I am going to enbolden the differences, or at least the ones I find:

S T A T E  O F  N E W  Y O R K

8354

2011-2012 Regular Sessions

IN ASSEMBLY

June 14, 2011

Introduced by M. of A. O’DONNELL, GOTTFRIED, GLICK, TITONE, KELLNER, BRONSON, J. RIVERA, SILVER, FARRELL, SAYWARD, LENTOL, NOLAN, WEISEN BERG, ARROYO, BRENNAN, DINOWITZ, HOYT, LIFTON, MILLMAN, CAHILL, PAULIN, REILLY, BING, JEFFRIES, JAFFEE, ROSENTHAL, KAVANAGH, DenDEKKER, SCHIMEL, HEVESI, BENEDETTO, SCHROEDER, J. MILLER, LAVINE, LANCMAN, LINARES, MOYA, ROBERTS, SIMOTAS, ABINANTI, BRAUNSTEIN — Multi-Sponsored by — M. of A. AUBRY, BOYLAND, BROOK-KRASNY, CANESTRARI, COOK, DUPREY, ENGLEBRIGHT, LATIMER, V. LOPEZ, LUPARDO, MAGNARELLI, McENENY, MORELLE, ORTIZ, PRETLOW, RAMOS, N. RIVERA, P. RIVERA, RODRIGUEZ, RUSSELL, SWEENEY, THIELE, TITUS, WEPRIN, WRIGHT, ZEBROWSKI — (at request of the Governor) — read once and referred to the Committee on Judiciary

AN ACT to amend the domestic relations law, in relation to the ability to marry

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

Section 1. This act shall be known and may be cited as the “Marriage Equality Act”.

My comment – The original bill didn’t have a title, and a bill like this, even with the “poison pill” provisions we are going to review, really should not have a name with “Equality” in it – because the poison pills expressly allow discrimination.

S 2. Legislative intent. Marriage is a fundamental human right. Same sex couples

and their children

(the words “and their children” were removed from the bill)

My comment – I have no idea why on earth the Republicans insisted that the words “and their children” be stricken from the declaration of legislative intent.  It appears to me to be more than a mere oversight, and I think that the omission is an outrage.

should have the same access as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage. Stable family relationships help build a stronger society. For the welfare of the community and in fairness to all New Yorkers, this act formally recognizes otherwise-valid marriages without regard to whether the parties are of the same or different sex. It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law. The omission from this act of changes to other provisions of law shall not be construed as a legislative intent to preserve any legal distinction between same-sex couples and different-sex couples with respect to marriage. The legislature intends that all provisions of law which utilize gender-specific terms in reference to the parties to a marriage, or which in any other way may be inconsistent with this act, be construed in a gender-neutral manner or in any way necessary to effectuate the intent of this act.

S 3. The domestic relations law is amended by adding two new sections 10-a and 10-b to read as follows:

S 10-A. PARTIES TO A MARRIAGE. 1. A MARRIAGE THAT IS OTHERWISE VALID SHALL BE VALID REGARDLESS OF WHETHER THE PARTIES TO THE MARRIAGE ARE OF THE SAME OR DIFFERENT SEX.

2. NO GOVERNMENT TREATMENT OR LEGAL STATUS, EFFECT, RIGHT, BENEFIT, PRIVILEGE, PROTECTION OR RESPONSIBILITY RELATING TO MARRIAGE, WHETHER DERIVING FROM STATUTE, ADMINISTRATIVE OR COURT RULE, PUBLIC POLICY, COMMON LAW OR ANY OTHER SOURCE OF LAW, SHALL DIFFER BASED ON THE PARTIES TO THE MARRIAGE BEING OR HAVING BEEN OF THE SAME SEX RATHER THAN A DIFFERENT SEX. WHEN NECESSARY TO IMPLEMENT THE RIGHTS AND RESPONSIBILITIES OF SPOUSES UNDER THE LAW, ALL GENDER-SPECIFIC LANGUAGE OR TERMS SHALL BE CONSTRUED IN A GENDER-NEUTRAL MANNER IN ALL SUCH SOURCES OF LAW.

S 10-B. APPLICATION. 1. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PURSUANT TO SUBDIVISION NINE OF SECTION TWO HUNDRED NINETY-TWO OF THE EXECUTIVE LAW, 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 LAWS SHALL BE DEEMED TO BE IN ITS NATURE DISTINCTLY PRIVATE AND THEREFORE, SHALL NOT BE REQUIRED TO PROVIDE ACCOMMODATIONS, ADVANTAGES, FACILITIES OR PRIVILEGES RELATED TO THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE.

2. A REFUSAL BY A BENEVOLENT ORGANIZATION OR A RELIGIOUS CORPORATION, INCORPORATED UNDER THE EDUCATION LAW OR THE RELIGIOUS CORPORATIONS LAW, TO PROVIDE ACCOMMODATIONS, ADVANTAGES, FACILITIES OR PRIVILEGES IN CONNECTION WITH SECTION TEN-A OF THIS ARTICLE SHALL NOT CREATE A CIVIL CLAIM OR CAUSE OF ACTION.

My comment – Sections 10-b 1 & 2 are not objectionable – all it means is that if the local Knights of Columbus, American Legion, Lions Club, etc., as well as the churches and schools, can arbitrarily deny the use of their halls or other facilities for weddings.  It doesn’t mean that they can deny a celebration for other purposes than a “solemnization or celebration of marriage” – so maybe one of the extras the GOP Senators might be looking for here would be additional rights to discriminate.

3. PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW, NOTHING IN THIS ARTICLE SHALL BE DEEMED OR CONSTRUED TO PROHIBIT 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 OR RENTAL 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.

My comment – This Section 10-b.3., already in the Assembly version, should be a deal breaker unless there is a provision added that this does not apply to any of these entities or organizations if they receive any source of public funding, and I would also add “or exemption from taxation” – though I don’t think that would go over very well.  I am appalled because this piece of the bill goes beyond marriage rights – we are dealing with a broad range of things, and a broad range of entities.  This may well be intended to be a legislative overturning of the 2001 New York Court of Appeals decision in Levin v. Yeshiva University, 96 N.Y.2d 484, 730 N.Y.S.2d 15, in which the Court held that Yeshiva University’s restriction of housing to those with legally recognized family relationships with a student violated the New York City Human Rights law provisions on discrimination on the basis of sexual orientation.  This provision, without the addition of a ban on public funding for entities that so discriminate, will be a rather legislative rollback of both the New York City human rights law and the New York State Human Rights law, as amended by the Sexual Orientation Non-Discrimination Act in 2002 – I wonder whether the people and organizations supporting marriage equality right now understand that the poison pills already in the bill may well go too far?  Or are they so blinded by a single-minded desire to not have to take a drive or train trip to Connecticut to get married there and have the same full legal rights in New York as anyone else, with no poison pill?  

The thing is, the passage of the original bill without a specific addressing of the Yeshiva University case, would have been enough to overturn the specific facts of the case – since the unmarried lesbian couple would under the new law have the right to marry, the school’s housing rule would no longer be violative of the human rights law because refusing accommodation an unmarried couple would not be discriminatory on the basis of sexual orientation.  Of course, if they would in fact be legally married, then we’d be in the same situation of having the school run afoul of the human rights law.  So it should be an acceptable “poison pill” but only if the law provides the school may take no public money if it intends to discriminate.  If they do, the law should prohibit the discrimination.

.

S 4. Section 13 of the domestic relations law, as amended by chapter 720 of the laws of 1957, is amended to read as follows:

S 13. Marriage licenses. It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state and to deliver said license, within sixty days, to the clergyman or magistrate who is to officiate before the marriage ceremony may be performed. In case of a marriage contracted pursuant to subdivision four of section eleven of this chapter, such license shall be delivered to the judge of the court of record before whom the acknowledgment is to be taken. If either party to the marriage resides upon an island located not less than twenty-five miles from the office or residence of the town clerk of the town of which such island is a part, and if such office or residence is not on such island such license may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage licenses, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this section with the town clerk of such town. NO APPLICATION FOR A MARRIAGE LICENSE SHALL BE DENIED ON THE GROUND THAT THE PARTIES ARE OF THE SAME, OR A DIFFERENT, SEX.

S 5. Subdivision 1 of section 11 of the domestic relations law, as amended by chapter 319 of the laws of 1959, is amended and a new subdivision 1-a is added to read as follows:

1. A clergyman or minister of any religion, or by the senior leader, or any of the other leaders, of The Society for Ethical Culture in the city of New York, having its principal office in the borough of Manhattan, or by the leader of The Brooklyn Society for Ethical Culture, having its principal office in the borough of Brooklyn of the city of New York, or of the Westchester Ethical Society, having its principal office in Westchester county, or of the Ethical Culture Society of Long Island, having its principal office in Nassau county, or of the Riverdale-Yonkers Ethical Society having its principal office in Bronx county, or by the leader of any other Ethical Culture Society affiliated with the American Ethical Union; PROVIDED THAT NO CLERGYMAN OR MINISTER AS DEFINED IN SECTION TWO OF THE RELIGIOUS CORPORATIONS LAW, OR SOCIETY FOR ETHICAL CULTURE LEADER SHALL BE REQUIRED TO SOLEMNIZE ANY MARRIAGE WHEN ACTING IN HIS OR HER CAPACITY UNDER THIS SUBDIVISION.

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.

S 6. This act shall take effect on the thirtieth day after it shall have become a law.

My comment – the original bill was to take effect immediately.  I suspect that the idea of providing a 30 day window would be to allow opponents of connubial marriage rights being legally permitted on a gender-neutral basis, an opportunity to take their case to the courts to try to block the bill from becoming effective.

Now, as I am writing this, the GOP senators should be meeting as a majority conference, and it is possible that the fate of the marriage bill is in their hands.  We will not get a chance to see the final draft of the bill as they amend it to add more “poison pill” provisions

Further negotiations have been had between the Governor and Senators Andrew J. Lanza from Staten Island, Kemp Hannon from Long Island, and Steven Saland from Dutchess County, who have been pressing to enlarge the “poison pill” aspects beyond those already added to the Assembly bill.  In addition, there have been the “three men in a room” meetings among Governor Cuomo, Senate majority leader Dean Skelos, and Assembly speaker Sheldon Silver, that have, or may have, touched on the addition of additional poison pill language that would make the marriage bill less one of “equality” and more one of a second class status.  Perhaps the opponents have decided that we are the kind of fools who are willing to take a legal right under the same name but with a different outcome.

If what the Albany legislative meat grinder does to the marriage bill results in an enactment of a bill with the objectionable provisions already noted, as well as others, what would the GOP-controlled senate do to GENDA, assuming that the Republicans were to decide to take it up today, or in 2012?

Well, the marriage tale has not yet been fully spun out – but when I analyze the final result, I am sure it will be a cautionary tale, a canary that will have succumbed to the poisonous vapors exhaled by the members of the Republican majority that controls the New York State Senate.

The worse the marriage poison pill, the less likely it will be that the friends and advocates of GENDA will be able to avoid a similar fate in 2012.

If the marriage bill does in fact turn out to be a dead canary, I would suggest that the 2012 legislative strategy for GENDA, with a Republican controlled state senate, should be to expend enough effort to pass the Assembly the fifth time, but to concentrate the trans community’s meager assets on influencing the outcome of the 2012 elections.

We will have an advantage – the 2010 census results are likely to create enough additional Democratic seats ao that even with the GOP drawing the lines, there should be at least 35 Democratic senators taking office in January 2013.  We will not have to swallow a poison pill in 2012 for GENDA, we just have to make sure that those 35 Democrats (with the exception of Ruben Diaz Sr., who appears to be a lost cause) are all going to support GENDA the way it was written.  

I have been posting and tweeting about the marriage bill poison pill for the past several days.  The juggernaut is in the hands of the GOP Senate majority – I do not want to give them GENDA to add the same sort of poison.

Joann Prinzivalli

Joann Prinzivalli

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