Monday, June 27, 2011

The Puzzling Insistence on a Non-Severability Clause

By Mike Dorf

During the last few days of negotiations over New York's same-sex marriage law, the swing Republican state Senators insisted on additional protections for religious institutions and individuals, as well as a "non-severability clause," i.e., a provision that states that in the event that any part of the law is held invalid, the whole law will be held invalid.  Here is the critical non-severability language in the new law: "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."

In contracts, a non-severability clause is sometimes called a "blowup" clause because it means that one defect "blows up," i.e., destroys, the whole contract. The core idea--whether in legislation or in private contracting--is that some seemingly secondary provision of the legislation or the contract is in fact vitally important to at least one party. By including a non-severability or blowup clause, that party ensures that he, she, or it won't end up getting the bitter without the sweet. A court left to its druthers might invalidate the secondary provision and leave the rest intact, but the non-severability/blowup clause ensures that if the secondary provision is invalidated--and thus the party who insisted upon it loses what he/she/it wanted--then the main provisions go down too.

With the non-severability clause, the Republican holdouts were trying to protect the religious exemptions.  However, as I see it, that effort was largely pointless.  Let's think about the reasons why the religious exemptions might be "adjudged . . . invalid" by a court. I can come up with two possibilities, one of which seems extremely unlikely, and the other of which seems remotely possible but self-defeating.  Allow me to explain.

We can imagine the religious exemptions being challenged as providing impermissible favors to religion.  That challenge would fail under the federal Constitution. Although the Free Exercise Clause, as interpreted by the U.S. Supreme Court in the peyote case, does not require religious exceptions, neither does the Establishment Clause forbid them.  (Justice Stevens once said that he thought that the Establishment Clause does forbid statutory exemptions from neutral laws for religious conduct, but he was alone in that view, he appears to have later changed his mind, and he's retired.)  Article I, Section 3, of the New York Constitution by its language forbids any "preference" with respect to religion, but this has not been interpreted to forbid denomination-neutral religious exemptions.  So there was no real need to worry about the religious exemptions in the Marriage Equality Act being invalidated on church-state separation grounds.

I suspect that the real worry of the holdout Republican Senators was that a court might say that the religious exemptions were inconsistent with equality. This does strike me as at least a barely legitimate worry. After all, New York family law does not specifically provide exemptions for religious institutions and their employees who oppose marriages on other grounds. E.g., if a church refuses to let out its facilities because of opposition to interracial (opposite-sex) marriage, or opposition to May-September (opposite-sex)  marriages, or whatever, the protections of the new law do not specifically shield the church. I doubt that a court would find that a church, other religious entity, or its employees would be compelled to officiate or sponsor any such wedding, but who knows? The exemptions in the new law even forbid the withdrawal of funding, and so it's conceivable that there are circumstances where a religious organization would lose funding for its stance on interracial marriage or interracial adoption but not for its stance on same-sex marriage.

So it's conceivable that a case could arise in which a judge could think that the religious exemptions to same-sex marriage but not other marriages deny equality in violation of either the federal or state Constitution. Such a judge would then invalidate the exemptions and--under the non-severability clause--be required to invalidate the whole Marriage Equality law.

But here's the thing: Any judge who thinks it's an unconstitutional denial of equality for a state to permit same-sex marriage with religious exemptions will almost certainly also think that it's a (much greater) denial of equality for a state to deny same-sex marriage entirely, which would be the result of a non-severability-based invalidation of the whole Act. Consequently, the non-severability clause will do its proponents no good. The moment the hypothetical judge invalidates the whole Act pursuant to the clause, the judge will find that the resulting state of affairs--no same-sex marriage--is unconstitutional (under the state or federal Constitution), and reinstate same-sex marriage as a matter of constitutional requirement rather than statute.

Thus, I conclude that the non-severability clause is basically pointless for its supporters and harmless for the rest of us.  Why, then, did Republican holdouts insist on it?  Here are three possibilities:

1) They didn't think it through the way I just have.  I judge this the most likely explanation.

2) They did think it through and reached another conclusion.  This strikes me as possible.  This area of the law is incredibly complicated so they could have just made an error in analysis somewhere.  Or, less likely { !  ;-) }, my analysis is wrong and theirs is right.

3) Whether or not they thought it through correctly or not, they never really cared about these exemptions or the non-severability clause, but were simply using them as a cover for opposition--and then the Governor and other supporters called their bluff.  I started out favoring this explanation, but upon reflection, I think the non-severability issue is such a technical lawyer's point that it's hard to see how anyone could have thought it would resonate with the public one way or the other.