What's Holding Up Same-Sex Marriage In New York

The New York State Senate continued to struggle over a same-sex marriage bill on Tuesday, one day after the session officially ended.

Same-sex marriage needs just one more supporter in the Senate, which is controlled by Republicans. Governor Cuomo exercised his power to call the body back into session after its expiration date, hoping, along with gay rights activists, to find that vote soon.

Negotiations over marriage equality are taking place in the context of a number of highly contentious bills that are the subject of horse-trading between Cuomo, Senate Majority Leader Dean Skelos, and Assembly Speaker Sheldon Silver, a Democrat. Gay marriage is vying for time on the Senate floor along with new rent regulations and a property tax cap.

If gay rights activists are to thread the needle this week, they hope for a quick end to those disputes -- and to a resolution over the contentious question of how many exemptions to provide for religious groups who don't want to recognize gay unions. Those exemptions might not account for more than "about fifteen words" in the final assessment, but they could be critical.

The same-sex marriage bill as passed by the state Assembly already includes exemptions for clergy so that they don't have to perform marriages. It also stipulates that benevolent organizations like the Knights of Columbus wouldn't have to rent out event halls for weddings.

Those exemptions were enough for the Assembly. But in the Senate, Andrew Lanza (R-Staten Island), one of the handful of Republicans considered sway-able on the issue has declared extracting further concessions from Cuomo his "line in the sand."

Some Republicans would like to see religious non-profits given special exemptions under the law as well.

Exactly what the several GOP senators on the fence are seeking -- and what Cuomo and gay rights groups would be willing to concede -- remains unclear, as discussions are taking place behind closed doors.

For LGBT activists, any proposal that undoes part of the state's Sexual Orientation Non-Discrimination Act, a hard-fought and high-profile victory from 2003, could be a poison pill. That is especially true when even opponents of same-sex marriage are now calling its passage "inevitable."

But an as-yet unspecified deal that tweaks the language in the same-sex marriage bill to give some space for GOP senators to lend their support is possible.

Sen. Greg Ball (R-Carmel) told HuffPost on Monday that he believes negotiations between GOP senators and Cuomo over exemptions may produce adjustments to the bill for religious institutions.

Ball, one of the critical undecided Republicans, said he was looking at the same-sex marriage bill from a "very pragmatic perspective."

"I understand that there's going to be certain areas where they're not going to be able to have religious protections because you open up a whole new can of worms," he said.

One example: a proposal by a Washington and Lee University professor that would create exemptions for individuals who don't want to provide marriage-related goods or services because of their religious beliefs.

Professor Robin Wilson believes, for example, that a baker should be able to reject a couple's request for a wedding cake if his religion prevents him from serving a same-sex -- or an interfaith, or even interracial -- couple. He would only be forced to bake the cake if his refusal created unnecessary hardship for the couple, because, Wilson said, "in a straight up contest [...] marriage equality trumps religious liberty."

Such a proposal would likely be a non-starter in New York state, particularly for individuals, as opposed to religiously-affiliated non-profits. "You can't institutionalize discrimination within the bill, nor would I ever want to," Ball said. Yet the proposal is an example of the issues that lawmakers may have to grapple with should they decide to broaden religious exemptions.

For their part, gay rights activists say the religious exemptions debate won't derail same-sex marriage.

"Things are progressing well and we remain very confident that we will win this thing," said Brian Ellner, senior strategist for the Human Rights Campaign.