NEW YORK (Reuters) - Fear of a slew of litigation arising from a possible religious exemption to New York’s proposed same-sex marriage law may be overstated, legal experts said.
The exemption, the main sticking point in negotiations on the measure before the New York state Senate, would allow religious officials and organizations to refuse to perform services or lend space for same-sex weddings.
Critics of the legislation -- which remained one vote from passage on Wednesday -- have expressed concern that the exemption does not protect nonprofits groups affiliated with religious organizations, or individuals with religious objections. They also said that the bill does not mention municipal discrimination laws, which could lead to a wave of lawsuits.
“What is going to wind up happening is years of litigation on individual cases at all levels of government,” Edward Mechmann, an attorney for the New York Catholic Archdiocese, said on Monday.
Senate Majority Leader Dean Skelos echoed that concern. “We don’t want to pass a bill and (then) there’s a slew of litigation on a number of these exemptions,” he said on Monday. “So, we’re looking to tighten that up.”
In Connecticut, Vermont, New Hampshire, and the District of Columbia, all of which have passed gay-marriage legislation with religious exemptions, similar fears of lawsuits have not been borne out.
“There have been very few lawsuits, and the lawsuits that are filed usually have been resolved amicably,” said William Eskridge, a professor at Yale Law School in Connecticut.
New York legislators have proposed expanding the exemption to protect any “individual or business with religious objections.” This would mirror the exemption in Connecticut, where, religious-affiliated adoption centers may refuse to serve gay couples.
It is unclear whether New York Governor Andrew Cuomo, who has indicated his willingness to include broader protections, will agree to that language.
“This is marriage as defined by government, not by a religion; the law has to protect that separation,” Cuomo told reporters on Friday.
Regardless of the scope of the exemption, the issue serves as a proxy for “hardliners” on both sides of the issue, said Douglas Laycock, a law professor at the University of Virginia and an expert on religious liberty.
“When most of the people on the religious side say we want exemptions, it means we want no same-sex marriage,” he said. “On the other side, when they say they want marriage, they don’t want exemptions for anyone.”
Still, Laycock said he believes the exemption is useful. “There won’t be a whole lot of cases, but think about those cases -- they will create a martyr, generate publicity and inflame feelings,” he said. “Religious exemptions are needed to defuse this and allow both sides to live their own values.”
Editing by Jesse Wegman, Barbara Goldberg and Greg McCune