A Not-So-Minor Change to the Same-Sex Marriage Bill

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At 3:51 p.m., today, WPRI’s Ted Nesi tweeted: “Nesselbush: OK’d version of SSM bill sunsets civil unions Aug 1, replacing w/ marriage. Also technical fixes. Tells supporters: don’t fret.”*

That’s not what I’m seeing. It looks to me like the substitute amendment made a sloppy attempt to grab some of the religious protections that were included in Senator Ciccone’s proposal to send the issue to the voters. Indeed, that’s what Nesselbush herself suggested to Providence Journal reporter Randal Edgar, yesterday (minus the “sloppy” part, of course).

But it’s difficult to understand what the language is even intended to do, and the whole thing may be a poison pill to prevent the legislation from passing.

Here’s the religious protection language from the original bill:

Protection of freedom of religion in marriage. – (a) Consistent with the guarantees of freedom of religion set forth by both the First Amendment to the United States Constitution and Article I Section 3 of the Rhode Island Constitution, each religious institution has exclusive control over its own religious doctrine, policy, and teachings regarding who may marry within their faith, and on what terms. No court or other state or local governmental body, entity, agency or commission shall compel, prevent, or interfere in any way with any religious institution’s decisions about marriage eligibility within that particular faith’s tradition.

(b) Consistent with the guarantees of freedom of religion set forth by both the First Amendment to the United States Constitution and Article I Section 3 of 1 the Rhode Island Constitution, no regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination as described and authorized in sections 15-3-5 and 15-3-6 of the general laws to officiate at a civil marriage, is required to solemnize any marriage. A regularly licensed or ordained clergyperson, minister, elder, priest, imam, rabbi, or similar official of any church or religious denomination shall be immune from any civil claim or cause of action based on a refusal to solemnize any marriage under this chapter. No state agency or local government may base a decision to penalize, withhold benefits from, or refuse to contract with any church or religious denomination on the refusal of a person associated with such church or religious denomination to solemnize a marriage under this chapter.

As Andrew has pointed out, this protection isn’t very strong, as a matter of either political theory or comparison with other states. It’s essentially limited to what religious organizations say and protects religious clergy only from being forced to conduct objectionable marriage ceremonies.  No church premises are protected; no decisions about handling employees and other non-doctrinal matters are protected; and no organization not immediately engaged in religious services is protected.

The Ciccone alternative that would have gone to the voters (but lost 6-5 in committee) had a long list of protections, including for small businesses in their own conduct guided by religious faith.

In addition to closing a possible loophole that might have allowed churches to permit bigamy and incest, here’s the language inserted in the amended version of the Nesselbush bill that passed:

(c) Notwithstanding any other provision of law, a religions organization, association, or  society, and any nonprofit institution or organization operated, supervised or controlled by a religious organization, association or society, or a fraternal benefit or service organization that has among its stated purposes the promotion and support or protection of a religious organization, association or society and that restricts membership to practicing members of that religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods, or privileges is related to:

(1) The solemnization of a marriage or the celebration of a marriage, and such solemnization or celebration is in violation of its religious beliefs and faith; or

(2) The promotion of marriage through any social or religious programs or services, which violates the religious doctrine or teachings of religious organization, association or society. Any refusal by an entity described above or an officer, employee or member thereof acting in an official capacity on behalf of that entity to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this subsection shall not create any civil claim or cause of action. This subsection shall not be construed to limit a religious organization, association, or society, or a fraternal benefit or service organization as described in this subsection, from selectively providing services, accommodations, advantages, facilities, goods, or privileges to some individuals with respect to solemnization or celebration of a marriage but not to others.

(d) Nothing in the marriage laws of this state shall be deemed or construed to limit the protections and exemptions provided to religious organizations under GL paragraph 28-5-6(7)(ii) and subsection 34-37-4.2(a).

(e) A fraternal benefit or service organization that is operated, supervised or controlled by a religious organization and a fraternal benefit or service organization which has among its stated purposes the promotion, support or protection of a religious organization and which restricts its membership to practicing members of that religious organization shall not be required to admit any individual as a member or to provide benefits to any individual. A refusal by a fraternal benefit or service organization by a member, officer or employee thereof acting in an official capacity on behalf of a society described herein, to admit an individual as a member or to provide benefits related to a marriage which is in violation of the religious doctrine or teachings of the religious organization to which its members are required to adhere, shall not create a civil claim or result in any government action to penalize, withhold benefits from the fraternal benefit or service organization or discriminate against a society or a member, officer or employee described herein.

Disregard (I guess) the obvious grammatical errors. Subsection (d) prevents the legislation from undoing preexisting religious exemptions for labor and housing laws.  Subsection (e) allows fraternal/service organizations (such as the Knights of Columbus) a special exception to continue applying their religious beliefs to the services and benefits that they offer members.

But subsection (c) is difficult to understand.  For one thing, it appears only to apply if the organization completely restricts membership to believers, which is at odds with the way many of these organizations operate.  Being, for example, baptized and confirmed into the Church isn’t required for most activities; this language might force them to become less inclusive of people who are interested in their activities but aren’t fully persuaded about or inducted into their beliefs.

But the real confusion comes in this sentence, under (c)(2):

This subsection shall not be construed to limit a religious organization, association, or society, or a fraternal benefit or service organization as described in this subsection, from selectively providing services, accommodations, advantages, facilities, goods, or privileges to some individuals with respect to solemnization or celebration of a marriage but not to others.

What does it mean “to limit X from doing Y”?  In typical legislative grammar, one would expect a “not be construed” clause to narrow the possible meanings of the law.  If not being limited from doing something means that the organizations can do that and more, then it would be more clearly stated to say that the organization can “selectively provide” services and such to some people and not to others.  On the other hand, if not being limited from selective provision means that the organizations cannot limit their activities selectively, then it would mean that the organization could not do anything related to marriage unless it accepts all definitions of marriage, thus minimizing the value of the subsection.

The bigger issue, however, may be evident in Nesi’s tweet about Nesselbush.  To the extent that the new language is not some trick to offer a protection and then to “construe” it out of existence, it’s in no sense a “technical fix,” and others of her allies have vehemently fought against such broad religious protections.  Indeed, Nesselbush told Edgar that her “barometer” was whether the religious protections could “be used as a sword to discriminate.”  How “selectively providing” services passes that threshold, from her point of view, isn’t easy to understand.

That may make the new language a poison pill that ultimately dooms the legislation, keeping the issue alive for another year of large political donations, grassroots enthusiasm, and distraction from the long list of governmental problems that plague the state (and that ought to plague its elected officials).

* The “technical fixes” statement may have been a reference to changes made even after the amended religious protection language was applied and might have therefore been fully accurate. Be that as it may, the change still has to bounce back and forth between the House and Senate until they agree, and the difference is not an insignificant one.

 

Correction: This post initially put Nesi’s tweet at 12:51 p.m.; it was 3:51 p.m.



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