Radical Feminists: tied to social conservatism and the Catholic Church

The birth-genital essentialist movement in the United States is composed of an unlikely alliance of social conservatives (whether they be populists, tea-partiers, Republicans or fundamentalist Christianists, Jewists or Islamists), the Roman Catholic Church’s Magisterium, and the proponents of the kinds of “radical feminism” that derive their creed from the Roman Catholic-influenced teachings of Mary Daly and her protégé, Janice Raymond (both of them Catholic, with careers teaching at Catholic universities).


Birth genital essentialism denies the reality experienced by people who identify as transsexual or transgender, a reality that was denied by medical experts in the 1960’s, but a growing body of medical scientific research in the past seventeen is proving that transsexual and transgender people are not delusional members of the sex we were assigned at birth.

The unfortunate victims of this birth-genital essentialist coalition are the various members of the trans community. I hasten to add that the “trans community” is not actually a community so much as it is a diverse collection of people who share a single characteristic of not being cisgender.

Let’s limit ourselves for the moment, to simplify things, to those whose identities are consistent with those of the opposite sex. (at the end, we can re-include the more gender-diverse)/

I’ve just read an otherwise rather intelligent article entitled Feminism, sex and gender, by someone whose handle is "No Anodyne" at the “radfem Hub” site.

I thought it read very well until the writer started going off the rails because of the writer’s cissexual, or rather cissexist, blindness to those who are different.

Here is a particularly troubling excerpt:

The way this conflation [of sex and gender] happens is through the concept of “gender identity” — that is, the person accepts the gender role of man or woman, regardless of that person’s biology. A biological male can “identify” as a woman and a biological female can “identify” as a man. Remember that there is absolutely no scientifically-proven evidence that gender (man and woman, masculinity and femininity) has a biological basis. The only thing that is provable is whether someone is female with XX chromosomes or male with XY chromosomes and has the primary sex characteristics that almost always accompany those genotypes. (Intersex conditions do nothing to refute this. Just as the fact that a very small percentage of people are born without arms does not convince us that having arms is not a standard state for humans.)

What happens when we say that anyone who says they are a woman is a woman, is that sex is erased as a meaningful category for a legal basis for discrimination. If sex is the same as gender and gender is whatever an individual says it is, then there is no way to create laws that protect females as a biological sex.

The writer’s concept of “gender identity” is oversimplified and startlingly similar to the primitive conception expressed by some Republican members of the New York State Assembly when they were debating the passage of the Gender Expression Non-Discrimination Act a couple of weeks ago.

Both the writer and these conservative Republicans have themselves hung up on the idea that “gender identity" means “a man” can just up and announce that today he’s “going to be a woman” and run into a women’s rest room so he can rape the female occupants.

However, that is just not the case. The person who asserts a gender identity that is that of the opposite sex often feels that way from the age of somewhere around four. After spending decades in trying to hide the true self beneath the façade, the individual starts transition. That is not some “man” just saying “I identify as a woman” without actually identifying as a woman.

The writer ignores 17 years of scientific evidence since 1995 that started with research identifying parts of the brain where trans women have the same neuronal density as cis women, and trans men have the same neuronal density as cis men, and has continued to the evidence of genetic predispositions explaining the mechanism by which a brain can develop along one sex’s blueprint, while the genital tact development follows the other.

Once we get out of the cissexual world in which gender identity, the 23rd chromosome pair and the genital tract development are all consistent, we have a tiny percentage of people who are different. Trans women are not and never were men. Trans men are not and never were women. Being trans is biologically-based, and the studies are there to prove it (and rather than list them again, just refer to the addenda to “My June 14, 2011 Letter to Dean Skelos on GENDA”essay posted to this blog on June 15, 2011. I recommend that the author read these scientific studies rather than assuming that the source for “gender identity” as an oversimplified concept involving a "choice" are the Roman Catholic Church, conservative politicians, or worse, the opaque and pretentious pseudo-academic writings by Judith Butler about gender as “performance.”

But the writer, starting with a false premise of “gender identity” that has nothing to do with the development of the brain and seems to be a matter of “free choice,” like deciding whether to have coffee or tea with breakfast, then goes on to ignore the fact that a small number of people are different and do not fit into the cissexual binary based on their birth genital tract development.  To the cissexist writer, people who are different are a tiny minority and just do not matter when it comes to the identities, rights, and feelings of the majority.

The blasé dismissal of “intesex conditions” as being relevant is a huge cissexist boo-boo on the writer’s part. Trans people with genetic and ontological differences should not be ridiculed, victimized and told that we do not belong where we belong, just because some cissexual woman feels that because she was born with a uterus, no one born without one can legitimately be a woman. (There is a “lite” version of that centered around the vagina that is used by some post-op separatists to differentiate themselves from those who are not “real.” To me, all they are doing is drawing a pseudo-cissexist bright line in a place where it accepts them, and only them, as an exception.)

The assertion that because the law might protect “gender identity and expression” that this somehow would have to replace “actual or perceived sex” as a protected class in human rights laws, is patently absurd. No one is replacing sex with gender. It’s either adding an added criterion for the class previously defined as sex, or adding a separate classification altogether. Nothing is taken away.

That idea that adding gender to human rights laws hurts sex as great a fallacy as the NOM position that allowing gender-neutral marriage will adversely impact opposite sex marriages. There is no connection.

Radical feminism needs to shake off its Catholic roots, and the error that has crept into feminist analysis.

Trans people, particularly trans women, were once  victimized by gender stereotyping as much as anyone else. And we still are victimized. In 1970, I was refused treatment for transsexualism because I was attracted to women – and the psychiatrist explained that “they wouldn’t cure me of one mental disorder to give me another.”

Others had to jump through hoops and convince their psychiatric gatekeepers that they were stereotypically ultra femme in order to get their surgery letters –the same psychiatrists (like Paul McHugh from Johns Hopkins) who later criticize the trans people for fitting into the stereotypes the gatekeepers insisted that fit.

Ultimately, neither transsexualism nor lesbianism is a mental disorder, though the psychiatric establishment is a little slow to acknowledge the former.

 
I get the fact that radical feminists want to transform themselves into the patriarchal ideal of reducing womanhood to being a walking, talking uterus, (the only difference being that the radfems rightly prefer to be walking, talking uteruses with a choice and control over their own bodies – that’s a good thing (having control over their own bodies, not the "walking, talking uterus" part!) and would still be there if they stopped oppressing my people.)

But womanhood is not that simple – how one identifies is based on our brain structures, and not our genitals or reproductive organs. A women with a hysterectomy does not stop being a woman.

In a comment, to the article, the author expands on the fallacies, stating that the trans argument is

“I FEEL like a woman therefore I AM a woman.”

That is partly true – the standard narrative dating back to the 1950’s for women born trans was that of feeling like “a woman trapped in a man’s body.”  But it ignores the modern science.  The reality is that we have women’s brains, at least in the relevant parts related to identity, and we have a male genital tract at birth.

The radfem comes back with:

“ there are females who don’t FEEL like “women” they FEEL like HUMANS, yet they ARE objectively females, so the trans argument is false for that reason alone”

There is no logical connection of one to the other. The fact that some people are weakly bigendered to the extent that they identify as a-gendered (neither male nor female, just “human”) is merely a different kind of identity. Nothing is refuted. There are also people assigned female at birth who identify as men and transition, they are men born trans and they were never really women at all.  We who are trans are WBT and MBT, and not M2F or F2M, (or the even worse radfem acronyms M2T and F2T, which reflects their erroneous birth genital essentialist-based assumptions).

She continues:

“ the socialization of females is important in our society, but that is what makes the discussion about GENDER important, but that has nothing to do with SEX (biological reality)”

With this, I’m getting gender as in “gender stereotypes” and “gender expectations based on sex assignment.” How much pain trans people go through as children because of the expectations based on the color of the blanket we were wrapped up in when we were born. Mid-life transitioners like me have to get a crash course in socialization – I think I was able to condense about 16 years into six months, but having had a daughter, I think I had a head start.  It's an important thought she has but not relevant to whether trans women are women - if we need help with socialization, it would be nice if help were provided rather than scorn.

She concludes the argument with

“ it is SEX, biological reality, that separates males from females. And it is not how we feel about that biological reality”

I agree that it’s about biological reality – but sex, and the biological reality of it is a lot more complicated and diverse for those who are intersex and trans than that XX XY genetic oversimplification, or the penis v. vagina oversimplification. Sex is not just the uterus v. the prostate. Some people, whether they are intersex in one way or another, including trans people, fall outside the stupid standard box.  And how we feel is often a reflection of that biolgical reality.

Those of us who do fit into the brain-based identity consistent with the opposite sex, ought to be allowed to socialize and be recognized on that basis. If there has to be a requirement that we no longer be reproductively capable with the OEM equipment, I can live with that, long term HRT does that pretty well – the one thing I can state with a certainty is that we are biologically different and never belong to the original sex. In a binary-based society, we belong with that opposite sex, or we need a special niche that hasn’t existed in Western culture since the rise of Christianity and the attempt to exterminate the gallae.

As to those I left out of the discussion at the outset - just like we have bisexual people, we have various kinds of bigender people whose identities, also highly likely to be biologically based, don't fit into the standard binary.  Just ebcasue they don't fit the binary assumptions does not mean we have to shoehorn them into the assumprions.  I may not fully uinderstand them, but I respect the fact that they are different.

Dismissing trans and intersex people because we are a tiny minority is cissexist oppression, and should be called out for what it is.

Until it can free itself of cissexist assumption about people who are not cissexual, the branch of radical feminism that rejects trans women only proves it is rooted in patriarchy and allied with the Roman Catholic Magisterium and conservative Christianists in an unholy alliance to oppress trans people for being different.

Until then, all the cissexist "radfemsplainin'" about  trans and intersex people is a lot like "mansplainin'" - explaining things to people who know exactly who we are, as if we didn't exist and don't count. I get it, but I don;t have to like it.

Editorial Pic-toon: BozObama Speaks on Marriage

Don't get me wrong, I am a supporter of the President, but when he is wrong . . .

In 1996, when running for the Illinois state senate from a district on the south side of Chicago (according to the Jim Croce song, the "meanest part of town"), Barack Obama strongly supported same-sex marriage, writing in a letter to Chicago's LGBT newspaper:

"6) I favor legalizing same-sex marriages, and would fight efforts to prohibit such marriages."

I grant that he was running for a state position, and that this is not inconsistent with his current statement that he sees the issue as a states' rights issue, but when he was running for president, and even now, he has also back-tracked, de-evolved, so to speak, and now only supports civil unions.

His current statement about mariage being a states' rights issue, is largely a correct one if one is speaking solely about the ordinary regulation of the various bundles of rights associated with marriage - but what he fails to take into account is that when the states run afoul of the federal constitution in regulating marriage, the federal government can step in and enforce the constitution.

There have been a good number of federal cases along these lines, most notably the Supreme Court decision in  Loving v. Virginia (388 U.S. 1 (1967).  The right to marry is a fundamental civil right.

In his dissent in Lawrence v. Texas, (539 U.S. 558 (2003), Justice Antonin Scalia, no friend to the LGBT community, points out the the court's decision to hold anti-"sodomy" laws unconstitutional would inevitably lead to the court recognizing the fundamental connubial right to marry for same-sex couples:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

The current Prop 8 case wending its way through the federal courts will test whether Justice Scalia's words are prophetic. Just as Lawrence followed the SCOTUS elimination of the racial "separate but equal" concept in Brown v. Board of Education (347 U.S. 483 (1954)), so it is that the Prop 8 case can follow Lawrence. Justice Scalia is not likely to be on the right side of this one, either, but one can always be pleasantly surprised.


President Obama, of all people, should recognize the federal constitutional implications of the right to marry.  Not only is he a law professor by profession, a brilliant man in many respects, he is also the son of an interracial couple who at the time he was born could not get married in more than 18 states - because of people maintaining a "states' rights" position on the subject of their connubium. In 1967, the SCOTUS held otherwise on connubium for interracial couples.  It is likely that a fair and just Court will do he same for the issue that the connubium right to marry must be understood on a gender-neutral basis under bedrock federal constitutional principles.

I'd like to share a quote from a sermon by the Rev. Theodore Parker, a Unitarian minister and Abolitionist leader, which was the inspiration for a similar quote attributed to Dr. Martin Luther King, Jr.:

"I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice."



- "Of Justice and the Conscience" (1853)

 I support President Obama in his presidency, even though I disagree with him on this and a number of other critical issues.  Despite those disagreements, he remains the most qualified candidate in the field for the 2012 election. Not a single Republican currently in the hunt for the Republican nomination is qualified for the presidency.  Not one. I am hoping that President Obama evolves on the issue of marriage and these other critical issues.  His second term will provide him with his legacy.  Will he be wearing a clown nose all that often?  (At least he doesn;t wear it all the time, like his anticipated opponents).

Looking toward 2016. In the meantime, I'm also seeing a strong Democratic candidate emerging for the 2016 presidential election - New York Governor Andrew Cuomo.  In his first year in office as Governor, he has pushed an amazing package of bills through what is perhaps the most dysfunctional state legislature in the nation.  And his popularity was recently reported at 64% in New York, higher than any other governor, including the Republican I expect will be Mr. Cuomo's 2016 opponent for the presidency, New Jersey's Chris Christie.

Is “Rev.” State Senator Diaz willing to violate his oath of office?

Ruben Diaz was quoted in the Christian Post as saying the following things:

“Pastors and religious leaders are supposed to remember that we are supposed to be Christians before being Democrats or being Republicans. Our responsibility is with Jesus and not with Democratic Party or Republican Party."

"We should always think first as Christians; we should not be concerned if that person is Republican or Democrat. We should be concerned if that person has Christian values and go all the way for that person."

Senator Diaz is in a special position, and is not just a pastor and religious leader, he is also a New York state senator. He took an oath of office that follows this format:

I [state your name] do solemnly swear [or affirm] that I will support the Constitution of the United States, and the Constitution of the State of New York, and I will faithfully discharge the duties of the office of New York State Senator according to the best of my ability [so help me God.]

When he wears his pastor hat, he should certainly feel free to act in accordance wioth the dictates of his personal religious beliefs (within reason, of course), but it may be argued that by putting his own particular and narrow religious views above the broad sweep of the federal and state constitutions when he is wearing his “state senator” hat, Diaz could be violating his oath of office.

That is not to say that his vote against the marriage equality bill or its additional religious protection amendment in and of itself violates the federal or state constitution. Indeed, the New York State Court of Appeals, in its 2006 decision that left the issue of marriage equality to the legislature, Hernandez v Robles (2006 NY Slip Op 05239), 855 NE 2d 1, 7 NY 3d 338, 821 NYS 2d 770 (2006) the New York Court of appeals expressly held that marriage on a gender-neutral basis was not required under the constitution of the State of New York or by the language of the existing statute.

But we have to note for the record, that even before the vote on the marriage equality bill and its additional religious protection amendment, out of state marriages have been understood to be recognized for all purposes under the law of the State of New York, when they are valid in the jurisdiction of origin. This is because they do not violate the express public policy of the State of New York, even if the marriage could not be performed in New York. Since New York had never passed a state-level Defense against Marriage Act, the Appellate Division in the 4th Department confirmed this on February 1, 2008, in Martinez v. County of Monroe (50 A.D.3d 189; 850 N.Y.S.2d 740).

However, it is the “Rev.” State Senator Diaz’s reasoning for his vote that makes me suspect that he would choose his religious bigotry over constitutional requirements.

It is interesting that Diaz ignores the express teachings of the Gospel in placing his religion first, over his constitutional obligations.

Jesus taught a basic separation of Church and State – see the synoptic gospels on “rendering to Caesar.” In all three, at Matthew 22:21, Mark 12:17, and Luke 20:25, we see that when confronted by a question as to the authority for a particular thing, whether it be secular or spiritual, the rules to follow ae those that go with the respective authority.  For religious marriage, by all means there is no problem with looking to one's own sacred scripture or the interpretation of it that one understands, but when dealing with the civil rights of the citizens of the state, one particular religious belief should not be the primary consideration to trump the civil rights of all the citizens.

If rendering to Caesar is not enough of a scriptural admonition, there is also the teaching “no man can serve two masters” that I find in two of the synoptic gospels, at Matthew 6:24 and Luke 16:13. While Jesus is specifically referring to God and money, the spiritual and temporal authority are still intended to be separable - and when there is a conflict, and it is not possible to do justice to the one or the other in a proper circumstance, stepping down from the obligation that cannot be met would be proper.

Even when he identifies himself, the “Rev.” State Senator (or the State Senator “Rev.”), he can’t seem to avoid combining his titles and his allegiances – and yet, he readily and constantly admits putting his “Rev.” hat above his “State Senator” hat. When the time does come that he has a conflict between his oath of office and his religion, he will put his religion first, and he openly admits it in nearly everything he says on the subject. Should such a time come, if he does not resign his office and it can be established conclusively that he violated his oath of office, he could suffer consequences.

Since it would be really hard to prove his motivations if he did not keep yapping about them, Diaz should perhaps take some additional precedent from Jesus himself, and just stop telling everyone that he puts his religion ahead of the constitution and his oath of office. This way we can only guess that he might be violating his oath of office, but we wouldn't actually be able to pin it on him.

See, in particular Matthew 21:23-27.

In this passage, Jesus remains opaque about how he interprets his own source of authority for his teaching in the temple courts. When asked by the religious authorities to explain his authority, Jesus responds with a question about the source of John’s baptism, from divine or human authority – and when they refused to answer that, he also refused to answer them himself. Were Diaz silent about his motives, it would be impossible to prove whether they violate his oath of office.

It is one thing to for him to take his religious beliefs into consideration in deliberating how he should vote on the legislation placed before him – and it is quite another to set aside all other considerations other than his religious belief in formulating that vote.

Diaz can get away with putting his religion first if only he doesn’t advertise his reasoning so obviously. Otherwise he might find himself accused of violating his oath of office, and his own words would be found to incriminate and condemn him.

I am not suggesting that he be removed from office, only that he be somewhat more discreet about his motives and his parody of reasoning.

Of course, he does not even really understand Christian teachings about marriage – most Christianists don’t understand the true meaning of the Good News - they look to the miracles and things that require a suspension of disbelief, and not to the social justice message.

Let’s look briefly at two passages:

In Matthew 19:6, Jesus refers to traditional opposite sex marriage, in which the two become “one flesh.”

But in the one same-sex marriage referred to in the Bible, we get this, in 1 Samuel 18:3 (the link is to the KJV for this passage), that essentially, David and Jonathan are knit together as one soul by their covenant.

One flesh, and one soul - and as if the beating of a single heart. The two relationships are the same sort of thing in bible terms, as far as establishing a family relationship (the connubium aspect, even though a same sex couple’s relationship (or the relationship between opposite sex couples in which one partner is infertile or menopausal) does not naturally produce children?

Senator Diaz should seriously consider looking more carefully at both his beliefs and the obligations he has under the two or more hats he wears.  He does not seem to be able to reconcile his obligations to both his masters, the constitution and his (erroneous) version of God.

Connubial rights the last step toward a fully gender-neutral domestic relations law

Connubium, which is the Latin term for the right to marry, is a right that has now completed in New York the gender-neutralizing of the state's domestic relations law.

Marriage is a right, and certainly not an obligation. The bundle of rights, responsibiliities, privileges and obligations that come with the issuance of a license and the performance of a ceremony in front of witnesses is not mandatory.

There was a time when there was no hope for connubial rights for same sex couples, and that went deeper than the different terms for spouses, "husband" and "wife."

Years ago, the law provided a different bundle to the male party than that provided to the female party, and if we go far enough back we see that the woman's bundle was often rather less, and then sometimes some aspects of the bundle were preferential to the woman. The idea was that there was a certain legal complementarity that could not heve existed under the law with two wives, or two husbands.

In those days, before the rest of the domestic relations law was gender-neutralized, there was not a hope for legal marriage in the L&G community - and as with the Fox in Aesop's fable involving the grapes that were so tempting but just out of reach, the community insulated itself with the idea that such unequal rights as were offered to the heterosexual parties to marriage only confirmed and expanded patriarchal dominance, or were in some other way just sour and inedible.

In the past couple of decades, the state legislature has gone so far as to smoothe out all the differences in the bundles of rights afforded the parties to marriage, until there was only one right that had not been made gender-neutral, and that was the connubium.

And now it has, at least in New York, five other states and several countries.

There are those for whom the grapes are still sour and will always be that way - and they still have the right to not get married.

For others, the right to form a family with the mutual rights and obligations appurtenant thereto, is a right that they would like to exercise - and having the right is a good thing.

Archbishop Dolan still disagrees.  Yesterday, after celebrating mass at St. Patrick's Cathedral in Manhattan, which is no longer on the route of the annual LGBT Pride March since New York City shortened the diustance for the sort of parade that requires street closures, he continued to assert that "marriage is between a man and a woman."  He has only 20-something days left for that to be true in New York.  After that, he will be able to truthfully say that "opposite sex marriage is between a man and a woman" or "the Sacrament of Matrimony in the Roman Catholic Church may be celebrated only by a man with a woman."  The connubium of marriage has been legislated to be gender-neutral in New York - and perhaps it would be wise for the archbishop to consider that there is a difference between civil marriage and the Roman Church's sacrament.  (But of course he can't do that.  As nice a man as he is on a personal level, he has no choice but to stick with the party line as ordered by the irrational minds that control the Vatican.  I am sure that Dolan is smart enough to know how silly he sounds, but that cardinal's hat is within reach, and this is a boat he would rather not rock. )

It's interesting to note that the Archbishop's position seems to be consistent with that of those in the L&G community who oppose marriage as a patriarchal institution, despite all the gender-neutralizing that has been done to the rest of the domestic relations law before the connubium was also made gender-neutral.

Neither Dolan nor the L&G folks who philosophically oppose marriage rights on a gender neutral basis seem to realize that the law has done all that smoothing-out of the respective rights of the parties to marriage, a smoothing of the way to last week's historic passage of marriage equality in New York.  Connubium is (or shortly will be) a gender-neutral right in New York.

The New York compromise should be a blueprint for other states to follow - even though the conservative anti-marriage churches are not happy with the extension of the connubium, and they are not openly celebrating the protections for those religious organizations that do not wish to celebrate marriages or host wedding receptions, I am sure that they are secretly pleased with the latter.

Maggie Gallagher’s Delusional Dream of Revenge in New York

In a piece for National Review entitled The GOP Will Pay a Grave Price, NOM’s Maggie Gallagher rattles her sword at New York’s Republican senators for daring to allow the recently-enacted marriage equality law to be brought to a floor vote.

Gallagher is well known for not having a really good grasp on the facts, but she tells the truth when she writes, concluding with a question:

“N.Y, Republicans did not have to bring gay marriage up for a vote: What does it mean that they passed gay marriage in N.Y.?”

The question from her perspective appears to be a rhetorical one, since she continues with a commitment of $2 million to “persuade” Republicans, stating “Voting for gay marriage has consequences.”

But let’s answer the question for her:

Maggie Gallagher does not understand what the New York GOP senators do - that the redistricting that will be coming prior to the 2012 elections will likely result in a possibly permanent loss of majority status, as the population of New York concentrates more in New York City. The Republicans in the Senate knew that this year was their best and possibly last chance for many years to make a deal to provide "religious protection" in a marriage bill, and that had they not made a deal now, marriage would have come to New York in January 2013, and without the express statutory "protections."

It was not just the three Republicans who voted “aye” to bring the bill one vote more than the minimum 32 required for passage.  It took at least 17 of the Republicans in the32 member  majority conference ( including many who did not actually vote for the bill) to tell the majority leader to let the bill go for a vote.

NOM previously promised $1million for each Republican who voted for the bill.  It seems that they can’t count up to $4 million necessary to make good that original threat

Maggie and her friend Archbishop Dolan seem to ignore the “religious protections” provisions that the Republicans worked very hard to make sure were added to the bill before they were willing to let ot go to a vote.  Perhaps the fear is that the compromise worked out in New York will snowball across the nation – since getting the marriage equality bill through was a more bipartisan effort than the final vote count reveals.

Remember, Maggie, it was not just the four who actually voted for the bill to bring it over the top. There are at least 13 more who had to be willing to allow it to go to a vote – and it is not going to be easy for you to figure out exactly who they are.

What exactly is the plan, though, Maggie?  Is it that you really want to encourage the election of  more Democrats to the State Senate in 2012? That will happen without your money, because of redistricting.  If you think it will mean that you will be working with Mike Long to elect Conservative Party candidates in three-way elections, you are much more likely to get even more Democrats elected.

That will make it easier for us to get GENDA passed in 2013.

So, Maggie, please do your worst!  But the arc of history bends toward justice, and you are on the losing side of history.

Nuances from last night's New York Marriage vote

The "Rev." State Senator Ruben Diaz, Sr.

I don't know how many people noticed it, but the "Rev." State Senator Ruben Diaz, Sr., a pentacostalist minister who admits to having become "one flesh" with a second wife while his first wife is still alive, and admitted in an interview this week that it was wrong to do this, did his best last night to try to derail the well-organized procedure for the marriage vote in the State Senate.

It wasn't just the length of his comments, which went well over the stipulated two minutes. (To be sure, Senator Duane and others also exceeded two minutes in their own comments).  But in his halting English, he kept insisting that he was "laying aside the bill." He became agitated, and repeated several times that he was getting no respect, that he had said to "lay aside the bill."  He said he had a right to "lay aside the bill."

What Diaz did not seem to understand, was:

(a) he was recognized solely for the purpose of explaining his vote on the bill" - and

(b) that there had been a bit of ledgerdemain when the amendment and the bill were first taken up, that precluded Senator Diaz being able to lay the bill aside (i.e., put it off until later).

Last night's women's discussion group at my local LGBT center trooped into The LOFT's library rather than meet.  We were watching the internet livestream feed on a large monitor, hoping it wouldn't crash (it didn't), but wen the Assembly bills were first taken up, we noticed that they were being laid aside.  At first, some thought that meant that the bills were not going to get a vote, but without missing a beat, the president of the Senate continued with the repartee with majority leader skelos about there being a message from the governor at the desk, for each bill.

After having each been laid aside, the bills were then taken up on the basis of the governor's message of necessity - first the amendment, and then the main bill (the reverse of the order they had been taken up in the Assembly).

So, when Diaz tried to lay the bill aside, he couldn't, because the bills had already been laid aside once, and because he had not been recognized for the purpose of laying a bill aside but for explaining his vote.

It turns out that Diaz is as poor in his senate procedural rules as he is on interpreting the bible, or in his command of the English language.  As to the last, I hope he is more proficient in Spanish, even if I don't understand a word of it.

As to his feeling of not being respected, I am sure that he is going to repeat that - he was trying to use every trick he knew to keep the bill from being considered.

Then in the other things he said, he chastized the Republicans for not all marching in lock-step (something he, as a Democrat, has always had a hard time doing).  He complained that the Republicans were responsible for letting the bill go to a vote.

On that last point, I think is was not grounds for complaint, but for admiration, despite the fact that nearly all of them disapproved of the purpose of the bill.

As one of them pointed out, had they not let the bill go to a vote then, it would have come up in a couple of years, and when it came up again, it would not have all the "religious protections" they were able to build into it.

Before the final language came out yesterday, I was quite frankly worried that the poison pill provisions were going to be wayy more onorous than they were.  I grant that the in terrorem clause (the one that invalidates the whole law in the event one provision is set aside by a court) was way over the top, but not totally unexpected.

Essentially, on the issue of marriage, the proponents and opponents are so polarized, that no one on either side trusts the motivations of the "other side."  We are fond of demonizing each other. 

Diaz showed that he was possibly the only member of the Senate not willing to lay that aside in the chamber and move forward.

Unlike the advocates on both sides, like me, who operate outside the chamber, the senators have the responsibility of actually making the law, despite their sometimes almost insurmountable differences.

Some senators, mostly Democrats, were justly pushing for the extension of the connubium of marriage on a gender neutral basis.

Other Senators, mostly Republicans, were justly (and with the bill safely passed, I can state this) trying to protect their religious institutions from what they perceived as an assault that goes against their most deeply-held religious views.

Frankly, I do believe the Republican majority is well aware of the fact that 2012 may be the last time they have a majority in the near future, so they set out to get the best deal they could get, to protect the mostly religion-based interests of the opponents,knowing that in 2013, a democratic majority senate could pass marriage without all the bells and whistles that were written into this bill.

I don't really think the bells and whistles were wholly necessary, though I can understand the fears that led to their adoption.

While I really do see the concerns of the opponents to be rooted in bigotry and prejudice, I can admire the way a few of the Republicans were able to negotiate a deal with the Governor to work a way to get the bill passed in a way that could reasonably protect the religious prejudice without harming the legal rights of the proponents.  I also have to admire the willingness of  most of the 28 Republicans who voted no on the main bill, to allow it to go to a vote.  I only wish that they would have used the amendment that was voted on first, to signal who they were - that they were among the at least 17 in the majority conference that were needed to let the bill get the vote.

And that is the truth.  If there were not 17 members of the majority who understood that there were enough votes for the bill to pass, and were at least comfortable with, if not fully satisfied by the "religious protections" that had been negotiated (what I still tend to call a poison pill even though it did not turn out to be fatal"), there would have been no vote last night.

Last night's vote was the result of the democratic process at work - not a perfect bill for either side, but one that gave each the things that they needed the most.

A victory for "our side," and, though they may not want to admit it openly, a victory for "them," too.

Diaz, though, made it clear that he was not part of any solution, only part of the problem.

Like Archbishop Dolan, he will not acknowledge the victory that the opponents won on religious protections.

State Senator Greg Ball

Senator Greg Ball wanted more of a poison pill.  And to be honest, I don't know if he was willing to let it go to a vote as it was.  His principal role in the past couple of days was to signal to me that the poison pill provisions were not going to be fatal, when he announced his NO vote in advance. 

Senator Tom Duane, who in the moment of victory took the time to call for passage of GENDA next, was gracious - he chivalrously referred to all of his colleagues as heroes for their work in the process, even those who voted agaisnt the bill, even Diaz.

So, the marriage canary tells me that the only hope for GENDA next year would be if there is something the Republicans feel a need to do to protect some legitimate constituency of theirs.  Sadly, the way the opposition to GENDA is shaping up, I don't think there is anything that we can offer in compromise.  All we want is the same protection that has been provided to other minorities under the hate crimes and human rights laws.

The trans community has to organize and lead the charge for GENDA.  I am hopeful that we will not be forgotten by the marriage people, but many of them will be moving on to other states and to federal issues,  Some, however, will do everything they can to help us out - but we have to find a way to take the lead.

The latest draft of the amendments to the Assembly bill - PASSES!

The canary is not dead, just a little sick:

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

8520

2011-2012 Regular Sessions

I N ASSEMBLY

June 24, 2011

Introduced by M. of A. O'DONNELL -- (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; 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 OTHER PROVISION OF 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 INCORPORATED 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, BENEVOLENT ORDER, OR A NOT-FOR-PROFIT CORPORATION AS DESCRIBED IN THIS SUBDIVISION, SHALL BE DEEMED TO BE IN ITS NATURE DISTINCTLY PRIVATE AND THEREFORE  SHALL NOT BE REQUIRED TO PROVIDE SERVICES, ACCOMMODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES FOR RELATED TO THE SOLEMNIZATION OR CELEBRATION OF A MARRIAGE.  2. A ANY SUCH REFUSAL BY A BENEVOLENT ORGANIZATION OR A RELIGIOUS CORPORATION, INCORPORATED UNDER THE EDUCATION LAW OR THE RELIGIOUS CORPORATIONS LAW, TO PROVIDE SERVICES, ACCOMMODATIONS, ADVANTAGES, FACILITIES, GOODS, OR PRIVILEGES IN CONNECTION WITH SECTION TEN-A OF THIS ARTICLE 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 AGAINST SUCH RELIGIOUS CORPORATION, BENEVOLENT ORDER, 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, BENEVOLENT ORDER, OR A NOT-FOR-PROFIT CORPORATION.






2. 3. PURSUANT TO SUBDIVISION ELEVEN OF SECTION TWO HUNDRED NINETY-SIX OF THE EXECUTIVE LAW,  NOTWITHSTANDING ANY STATE, LOCAL OR MUNICIPAL LAW OR RULE, REGULATION, 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 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, TO LIMIT FROM LIMITING   EMPLOYMENT OR SALES OR RENTAL OF HOUSING ACCOMMODATIONS OR ADMISSION TO OR GIVE 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.






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 CLERGYMAN 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.




The bottom line?  It's really not a lot worse than it was before - and to boot, all it really does is extend to marriage a number of the religious exemptions that were included in SONDA, just with a lot more teeth to make sure there are no challenges.

The in terrorem clause, threatening to invalidate the whole law if any part of it is successfully challenged, is a particularly interesting touch - it might have been added at the suggestion of a GOP senator with a trusts and estates practice, familiar with the value of simmilar in terrorem clauses in the drafting of wills.

While I might feel a little queasy that the Republicans felt necessary to throw all this in, I think that if and when this passes in both Assembly (and perhaps a single bill incorporating all the changes in the Senate), it should be time for a minor and muted celebration.  They're not doing anything with GENDA.

But if they do want similar "religious protections" in GENDA, I guess I will have to take a close look at them - as long as they apply acoss the board, as these seem to, then it should be fine.

So, if a religion does not want to perform interracial marriages or the local Masonic Lodge does not want to allow an interracial couple to have their wedding reception at their hall, this bill will protect the Masons, and not a thing can be done about that.

UPDATE: The amendment passed in the Assembly first, and then the Senate first passed the Amendment, and then the underying bill.  ha maon bill passed 33-29 - with one vote more than the 32 needed for passage.  Upstate Senatr Grisanti was vite #33 - and his explanation of his vote was nearly as well received at The LOFT as Senator Duane's emotional and stirring words.

I cannot help but be pleased that marriage has passed - it's as close to equality as one could reasonably expect, given the power and influence of the Roman Catholic Church. 

In the final analysis, the opponents got what they really felt they needed - keeping weddings that don't want out of their churches and affiliated organization reception halls - and the proponents got the word maddiage and civil equality, at least  outside those churches and affiliated organizations.

Cassandra reads the tea leaves: NY Marriage bill may be a canary for GENDA strategy

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.

Hereis 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 

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.