Why has New York's gay marriage bill been stalled for days?

Republicans in the Senate say they are concerned about protections for religious groups that don't want to perform a gay marriage, but more-political calculations could also be playing a role.

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    New York Gov. Andrew Cuomo speaks during a news conference in the Hall of Governors at the Capitol in Albany, N.Y., on Tuesday. The Senate is considering a bill that would legalize gay marriage.
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New York’s gay marriage law remains stuck in the Republican-controlled state Senate, where legislators are considering the law’s potential impact on religious groups – and, some analysts say, their own political fortunes.

The Democratic-dominated Assembly last week approved the bill, which would make New York the sixth and most populous state to permit same-sex marriages. Since then, the Senate’s Republican majority has held a series of closed-door meetings – several with Democratic Gov. Andrew Cuomo – to discuss the bill and whether it should be brought to a full vote.

The holdup has centered on whether exemptions in the bill to protect religious groups from civil lawsuits if they refuse to preside over or host same-sex ceremonies are sufficient.

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To some legal analysts, Republicans' concerns are well founded. Religious-affiliated nonprofits such as Catholic Charities or the Salvation Army lack certain protections, as do individuals who are morally opposed to gay marriage, says Robin Fretwell Wilson, a law professor at Washington and Lee University in Lexington, Va.

Moreover, municipalities could penalize religious groups that refuse to serve married gay couples.

“Just because the state has this idea that they’ll write these exemptions in doesn’t mean that local governments won’t come in and say, 'We’ll punish you,' ” Professor Wilson adds.

In particular, she says municipalities could refuse to enter into contracts with or give tax breaks to groups that violate their antidiscrimination policies.

Defenders of the marriage bill, however, say these concerns are unfounded and that overly broad religious exemptions would conflict with New York’s existing human-rights law.

The state law bars discrimination based on sexual orientation, but makes certain exceptions for religious institutions. If the marriage law expanded the exemptions to include individuals or businesses, the law would be seriously weakened, says Susan Sommer, director of constitutional litigation for Lambda Legal, which supports same-sex marriage.

“This would be a rollback on civil rights, setting us back decades,” she says.

Ms. Sommer calls the threat of municipal penalties or lawsuits against religious-affiliated nonprofits “red herrings.” “Allowing people to marry within the state doesn’t change the preexisting [non-discrimination] requirements or necessarily create new conflicts that weren’t already there and being navigated fine in New York,” she adds.

Indeed, the real sticking point in the negotiations might have nothing to do with protecting religious groups, says Gerald Benjamin, a political scientist at the State University of New York at New Paltz.

“The fundamental issue is their fear about losing their majority in the Senate,” he says.

Republican senators – the majority of whom oppose the bill – may have real moral concerns about gay marriage, but they also may have used the debate about the exemption language to let them avoid bringing the controversial measure to a vote, Professor Benjamin says.

“I think, at bottom, they’d prefer not to act, and they’d like to find reasons not to act,” says Benjamin.

Part of their reluctance may stem from threats by conservative groups to punish any Republicans who support the bill. The state’s Conservative Party, which makes influential endorsements, threatened to oppose Republicans who vote for the bill.

Until Republicans bring the bill to the floor, debate on the bill will continue behind closed doors.

For government watchdog Common Cause, that highlights a problem. "Each member of the public is entitled to know the position of their elected representative,” says Executive Director Susan Lerner.

Legislators Wednesday told reporters they had made progress on the religious exemption language and could soon bring the bill to the Senate floor. But that was far from set in stone.

“I don’t ever feel confident what the New York state Legislature is going to do,” says Ms. Lerner, “until I see them do it.”

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