NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8354
SPONSOR: O'Donnell (MS) TITLE OF BILL: An act to amend the domestic relations law, in
relation to the ability to marry
PURPOSE: The Marriage Equality Act amends the domestic relations law
to grant same-sex couples the ability to enter into civil marriages in
New York, while preserving the well-established constitutional and stat-
utory principles that no member of the clergy may be compelled to
perform any marriage ceremony. The Act also re-affirms that religious
institutions and benevolent organizations cannot be required to partic-
ipate in same-sex marriage ceremonies or celebrations.
SUMMARY OF PROVISIONS: Section 1 of this bill is the short title,
"Marriage Equality Act."
Section 2 of this bill would set forth legislative intent.
Section 3 of this bill would add a new Section 10-a to the Domestic
Relations Law (DRL) providing that: (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 shall differ based on the parties to the marriage
being or having been of the same sex rather than a different sex; and,
(3) all relevant gender-specific language set forth in or referenced by
New York law shall be construed in a gender-neutral manner.
Section 3 of this bill would add a new Section 10-b to the DRL to re-af-
firm that legalizing marriage for same-sex couples would not limit the
protections and exemptions provided to benevolent organizations and
religious institutions.
Section 4 of the bill amends DRL § 13 to provide that no application for
a marriage license shall be denied on the ground that the parties are of
the same, or a different, sex.
Section 5 of the bill amends DRL § 11(1) to make clear that no member of
the clergy acting in such capacity may be required to perform any
marriage.
Section 6 of the bill sets forth the effective date.
EXISTING LAW: New York's Domestic Relations Law outlines the require-
ments and criteria two people must satisfy to enter into a civil
marriage in the state. Although the Domestic Relations Law contains no
specific prohibition against, or allowance for, marriages between indi-
viduals 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 legal-
ly performed in other jurisdictions are "entitled to recognition in New
York in the absence of express legislation to the contrary." See Marti-
nez 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 Funder-
burke 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 recog-
nized 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 orien-
tation, it carves out exemptions for religious institutions and benevo-
lent 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 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 indi-
viduals 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, taxa-
tion, 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 seek-
ing 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 recogni-
tion 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 conven-
tion 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 discrimi-
nation 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. In short, 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 organiza-
tions 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 it chooses
not to accommodate. N.Y. Exec. Law § 292(9).{5}
BUDGET IMPLICATIONS: The bill will require additional state expendi-
tures 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 spous-
al 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 domestic partners.
At the same time, however, allowing same-sex marriage would have numer-
ous positive fiscal impacts. A 2007 report by the New York City Comp-
troller 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 bene-
fit 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 thirtieth day after it
shall become law.
{1} N.Y. 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 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."
{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 corpo-
ration incorporated under the education law or the religions corpo-
rations 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).
STATE OF NEW YORK
________________________________________________________________________
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, DenDEKK-
ER, SCHIMEL, HEVESI, BENEDETTO, SCHROEDER, J. MILLER, LAVINE, LANCMAN,
LINARES, MOYA, ROBERTS, SIMOTAS, ABINANTI, BRAUNSTEIN -- Multi-Spon-
sored 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 Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "Marriage
2 Equality Act".
3 § 2. Legislative intent. Marriage is a fundamental human right. Same-
4 sex couples should have the same access as others to the protections,
5 responsibilities, rights, obligations, and benefits of civil marriage.
6 Stable family relationships help build a stronger society. For the
7 welfare of the community and in fairness to all New Yorkers, this act
8 formally recognizes otherwise-valid marriages without regard to whether
9 the parties are of the same or different sex.
10 It is the intent of the legislature that the marriages of same-sex and
11 different-sex couples be treated equally in all respects under the law.
12 The omission from this act of changes to other provisions of law shall
13 not be construed as a legislative intent to preserve any legal
14 distinction between same-sex couples and different-sex couples with
15 respect to marriage. The legislature intends that all provisions of law
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD12066-04-1
A. 8354 2
1 which utilize gender-specific terms in reference to the parties to a
2 marriage, or which in any other way may be inconsistent with this act,
3 be construed in a gender-neutral manner or in any way necessary to
4 effectuate the intent of this act.
5 § 3. The domestic relations law is amended by adding two new sections
6 10-a and 10-b to read as follows:
7 § 10-a. Parties to a marriage. 1. A marriage that is otherwise valid
8 shall be valid regardless of whether the parties to the marriage are of
9 the same or different sex.
10 2. No government treatment or legal status, effect, right, benefit,
11 privilege, protection or responsibility relating to marriage, whether
12 deriving from statute, administrative or court rule, public policy,
13 common law or any other source of law, shall differ based on the parties
14 to the marriage being or having been of the same sex rather than a
15 different sex. When necessary to implement the rights and responsibil-
16 ities of spouses under the law, all gender-specific language or terms
17 shall be construed in a gender-neutral manner in all such sources of
18 law.
19 § 10-b. Application. 1. Notwithstanding any other provision of law,
20 pursuant to subdivision nine of section two hundred ninety-two of the
21 executive law, a corporation incorporated under the benevolent orders
22 law or described in the benevolent orders law but formed under any other
23 law of this state or a religious corporation incorporated under the
24 education law or the religious corporations laws shall be deemed to be
25 in its nature distinctly private and therefore, shall not be required to
26 provide accommodations, advantages, facilities or privileges related to
27 the solemnization or celebration of a marriage.
28 2. A refusal by a benevolent organization or a religious corporation,
29 incorporated under the education law or the religious corporations law,
30 to provide accommodations, advantages, facilities or privileges in
31 connection with section ten-a of this article shall not create a civil
32 claim or cause of action.
33 3. Pursuant to subdivision eleven of section two hundred ninety-six of
34 the executive law, nothing in this article shall be deemed or construed
35 to prohibit any religious or denominational institution or organization,
36 or any organization operated for charitable or educational purposes,
37 which is operated, supervised or controlled by or in connection with a
38 religious organization from limiting employment or sales or rental of
39 housing accommodations or admission to or giving preference to persons
40 of the same religion or denomination or from taking such action as is
41 calculated by such organization to promote the religious principles for
42 which it is established or maintained.
43 § 4. Section 13 of the domestic relations law, as amended by chapter
44 720 of the laws of 1957, is amended to read as follows:
45 § 13. Marriage licenses. It shall be necessary for all persons
46 intended to be married in New York state to obtain a marriage license
47 from a town or city clerk in New York state and to deliver said license,
48 within sixty days, to the clergyman or magistrate who is to officiate
49 before the marriage ceremony may be performed. In case of a marriage
50 contracted pursuant to subdivision four of section eleven of this chap-
51 ter, such license shall be delivered to the judge of the court of record
52 before whom the acknowledgment is to be taken. If either party to the
53 marriage resides upon an island located not less than twenty-five miles
54 from the office or residence of the town clerk of the town of which such
55 island is a part, and if such office or residence is not on such island
56 such license may be obtained from any justice of the peace residing on
A. 8354 3
1 such island, and such justice, in respect to powers and duties relating
2 to marriage licenses, shall be subject to the provisions of this article
3 governing town clerks and shall file all statements or affidavits
4 received by him while acting under the provisions of this section with
5 the town clerk of such town. No application for a marriage license shall
6 be denied on the ground that the parties are of the same, or a differ-
7 ent, sex.
8 § 5. Subdivision 1 of section 11 of the domestic relations law, as
9 amended by chapter 319 of the laws of 1959, is amended and a new subdi-
10 vision 1-a is added to read as follows:
11 1. A clergyman or minister of any religion, or by the senior leader,
12 or any of the other leaders, of The Society for Ethical Culture in the
13 city of New York, having its principal office in the borough of Manhat-
14 tan, or by the leader of The Brooklyn Society for Ethical Culture,
15 having its principal office in the borough of Brooklyn of the city of
16 New York, or of the Westchester Ethical Society, having its principal
17 office in Westchester county, or of the Ethical Culture Society of Long
18 Island, having its principal office in Nassau county, or of the River-
19 dale-Yonkers Ethical Society having its principal office in Bronx coun-
20 ty, or by the leader of any other Ethical Culture Society affiliated
21 with the American Ethical Union; provided that no clergyman or minister
22 as defined in section two of the religious corporations law, or Society
23 for Ethical Culture leader shall be required to solemnize any marriage
24 when acting in his or her capacity under this subdivision.
25 1-a. A refusal by a clergyman or minister as defined in section two of
26 the religious corporations law, or Society for Ethical Culture leader to
27 solemnize any marriage under this subdivision shall not create a civil
28 claim or cause of action.
29 § 6. This act shall take effect on the thirtieth day after it shall
30 have become a law.
