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Mitchell Bard

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I'm Not in a New York State of Mind, Thanks to 38 State Senators

Posted: 12/03/09 08:23 PM ET

But now I need a little give and take/The New York Times, The Daily News/It comes down to reality And it's fine with me 'cause I've let it slide/Don't care if it's Chinatown or on Riverside/I don't have any reasons I've left them all behind/I'm in a New York state of mind
- Billy Joel, "New York State of Mind," 1976

I am often in a New York state of mind. After living most of my life in New York, I recently moved to Madison, Wisconsin, to go back to graduate school. But being a New Yorker is a strong part of my identity. Which only made it harder to accept the New York State Senate voting down a gay marriage bill on Wednesday (my birthday of all days). Eight Democrats joined all 30 Republicans in shamefully telling millions of New Yorkers that they are less deserving of rights in the State of New York.

There is a viral video making the rounds in which a man, speaking directly to the camera, attempts to shoot down the arguments against gay marriage. While, obviously, I agree with the bulk of what he has to say, the issue is far, far simpler to me.

I look at the issue in legal and constitutional terms. (I may not practice law anymore, but I can't seem to put my legal education and short time practicing completely behind me. I guess it doesn't help that my wife is also an attorney, so the law is always buzzing around me.) And when you look at the gay marriage question through this lens, it is easy to see the anti-gay marriage folks for what they are: religiously fueled bigots.

Marriage has two essential elements to it. First, it is a union recognized by most of the world's major religions as being between a man and a woman. Second, and completely separate from the issue of religion, marriage is a contract between two individuals recognized by the 50 states. You will note that I identify the second element as completely separate from the first one because of a nifty little amendment to the U.S. Constitution (the first one, in fact) that reads, in relevant part:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

Thanks to more than a century of U.S. Supreme Court decisions, we can safely conclude that, among other things, the First Amendment prevents the government (states are bound by the First Amendment via the Fourteenth Amendment, ratified after the Civil War) from enforcing religious decisions in carrying out its business. As such, it is not incumbent on the states to enforce religious laws on marriage, nor may the states force religious leaders to carry out certain policies that violate their faiths.

So there is religious marriage (based on the rules of a couple's faith) and state marriage (essentially a civil contract under which certain rights and responsibilities become enforceable under state law).

Now, there is no doubt that many American religious leaders feel that the marriage of two men or two women violates the rules of their faiths. While I can't support their bigoted views, I would be quick to defend their right not to marry two men or two women. That is a decision the state has no place getting involved in. And religions are not bound by any responsibility to treat their followers fairly or to extend them equal rights. If Catholics do not want to let women become priests, or if Orthodox Jews do not want to allow women onto the bimah (altar) during services, or if any other religion chooses to extend fewer rights under the rules of the faith to one group or another, that is the right of those religious institutions to do so. It's up to the members of the religious institutions to decide if they want to be part of a religion that discriminates in these manners.

But the government doesn't enjoy the same leeway as the religions. In fact, the Constitution, federal law and state law are filled with provisions that assure just the opposite, that every American should be treated equally under the law. So if a state decides to grant the right of two men or two women to marry, that is the state regulating state business (and I would argue it's both the legal and moral obligation of the state not to pick and choose to whom it extends these rights and responsibilities). The state isn't telling any priest, reverend, rabbi or imam to marry two men or two women, nor is it requiring the religions to accept the couples as being married under their faiths (in the same way that if a Jew and a Baptist are married by the state, the state doesn't require Orthodox rabbis or Baptist ministers to recognize the marriage in their faiths).

In other words, religious marriage is the domain of the religions, and state marriage is the domain of the states. And under the First Amendment, the states are not supposed to force religious rules on its people, nor are they to interfere in the beliefs of the religions. Seems simple enough.

In light of the understanding of the two elements of marriage, what can be a rationale for opposing gay marriage? You can't say it violates your religious beliefs, because nobody is asking you to change, in any way, your religious beliefs. Nobody is asking you to accept the gay marriages in your church, or for your religious officials to perform same-sex marriages. No, the only reason to oppose same-sex marriage is because you believe that gay men and lesbians do not deserve the same rights as heterosexuals. It's really that simple. Everything else is just a smoke screen, a way of diverting attention from the bigotry at the heart of those who oppose same-sex marriage.

The only senator to have the balls to stand up in the New York Senate and speak against the same-sex marriage bill (which had overwhelmingly passed in the New York Assembly), even though 38 of them eventually voted against it, was Ruben Diaz Sr. of the Bronx, and his remarks made clear how intellectually bankrupt the anti-same-sex-marriage position is. After Sen. Eric Adams of Brooklyn, noting the secular job of legislators, said that when he walks into the senate chamber, "my bible stays out," Diaz, a pastor, declared in response, "That's the wrong statement. You should carry your Bible all the time."

(Some of Diaz's exploits include being sentenced to probation in the 1960s after being arrested for possessing heroin and marijuana and getting investigated by the FBI for corruption in 2007. He serves as a nice reminder that being religious does not necessarily mean that you behave ethically and morally.)

In other words, Diaz was happy to impose his religion-based belief that homosexuals were not entitled to the same rights as heterosexuals under the law on all New Yorkers as part of his duties as a New York State senator. Note, he didn't reference state law. He referenced the bible.

What is it to be an American if you do not support equal rights under the law? And when you clear away baseless threats that legalizing same-sex marriage somehow has an effect on how religions handle marriages in their faiths, all that's left for those opposed to same-sex marriage is bigotry. It's really that simple.

One of the few bright spots of the debate was the remarks of Sen. Diane Savino of Staten Island, who told a funny story about the explanation she gave a pedicab driver of why she supports same-sex marriage. She explained to him they could go to City Hall and get a marriage license, even though they just met and were in no way ready for such a serious commitment. She then offered what I think is as elegant and simple a point as anyone has made about same-sex marriage:

"We in government don't determine the quality or worthiness of people's relationships. If we did, we would not issue three-quarters of the marriage licenses we do."

Again, there are two marriages: one recognized by religion and one recognized by the state. I'm not asking the religions to open their minds, but I am demanding that the states (or at least, in this case, New York State) provide all of their citizens with equal rights. Because as Sen. Savino makes clear, the state has no business in judging the two people that step forward to ask for a license to marry and avail themselves of the rights and responsibilities the state offers to married couples.

As much as Senators Adams and Savino make me proud to be a New Yorker, legislators like Diaz make me wonder what has happened to my beloved state. I think it's time for New Yorkers to stand up and tell the 38 senators that voted to deny equal rights to millions of New York citizens that they don't represent the beliefs of true New Yorkers. That would put me back in a New York state of mind.

 

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