Equality 1, Homophobic Fear-Mongering 0

CHEERS!!!

source:nytimes

The New York State Senate passed a bill legalizing same-sex marriage last night. This is such a huge win for the gay rights community and Governor Andrew Cuomo. But it's also a victory for everyone that simply believes that we all have basic rights as human beings. The ability to marry who you love (or even that hooker you took shots with in Vegas!) is central to the ideas of individual freedom and determination of which politicians love to pay lip service.

After extended wrangling in the Republican-controlled senate, the final vote tally was 33-29 in favor of the legislation. Couples will be able to wed in about 30 days. According to the Washington Post:

The decision was welcomed by gay rights groups, who had been hungry for a win after similar measures failed this year in Maryland and Rhode Island.

The bill’s passage also was viewed as a milestone nationally because it was the first time a GOP-controlled chamber has approved gay marriage.

Several wealthy Republicans backed the effort, and it was ultimately Republican senators who cast the tiebreaking votes. Four Republicans joined with the vast majority of the Senate’s Democrats to pass the bill. The Republicans hold a one-member majority in the chamber.

The fact that this bill gained momentum based on republican action in the senate is important to note. As  national republican politicos move farther and farther to the right, at the behest of corporations, the Tea Party, and various Koch-brother affiliated organizations, the lawmakers in New York seemed to step out on the side of equality. I use the term seemed because this bill comes packaged with two "religious exemptions".  The first is that religious corporations and non-profits cannot be stripped of state or local funding for refusing to perform same-sex marriage ceremonies, furthermore, said organizations are also protected from discrimination litigation.  However, the second provision is by far the most critical. The New York Times described it this way:

Finally, the legislation contained what is known as an inseverability clause. If a court found any part of the act to be invalid, the entire legislation would also be invalid. The clause is an important provision to Republicans because it means that the marriage legislation would be at risk if the religious exemptions were successfully challenged in court.

See that trick the Republicans just performed? Not only can religious organizations bar same-sex couples from utilizing their facilities and accessing their services, if an advocate challenged the legality of any portion of the bill, then theoretically the entire law can be scrapped.  This is referred to as an "Inseverability Clause". The actual language of the bill reads as follows (emphasis is my own): 

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.

The more common clause used in typical legislation is what's known as the "Severability Clause". Severability is essentially the idea that, if any portion of a law is unconstitutional, unenforceable, etc. then that portion of the law will be struck down, while the rest of the law remains in effect. However, what we see above is evidence of Republicans using insidious language and a questionable legal maneuver in order to maintain some symbolic level of social conservatism. I can imagine the senators thinking "Yes, we voted for this bill, but all we need is one wild-eyed hippie to file a lawsuit and it's all over with baby"! Unfortunately for them it's been noted that courts routinely ignore both severability and inseverability clauses, choosing instead to employ their own criteria in determining severability.

If all goes well, the entire nation will be hearing wedding bells from Manhattan in a month.

I for one, will be toasting my New York gays tonight!