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.


Paul Scott said...

Option 4, they are particularly devious and plan on having cases brought in NYS Court AND they are counting a Justice to be sympathetic to their views. This Justice would then find in favor of a plaintiff and strike down the portion of the statute allowing personal discrimination and in doing so he would then strike down the entire law. Since he is not a Justice that in fact thinks that the religious exemptions to same-sex marriage but not other marriages deny equality in violation of either the federal or state Constitution, but is instead a results driven Justice, he strikes down the entire law on non-severability grounds but does not follow up by finding same-sex marriage required by the State or Federal Constitution.

Plausible? Probably not. Depends on the degree of cynicism one generally holds the Legislative process. My degree is pretty high, but not quite high enough to believe this. I thought I would get it on record just in case, though.

Michael C. Dorf said...


I love a good conspiracy theory, and this one is downright diabolical, but with you, I think it's implausible. For this scheme to work, the NY Court of Appeals would have to let such a ruling stand, which is nearly inconceivable.

Meanwhile, it reminds me a bit of a hypothetical law I once concocted in a law review article: A "fallback" provision that stated that if a court invalidated Don't-Ask-Don't-Tell, funding for air force parachutes would be canceled. I worried a little about giving Congress ideas but ultimately concluded that this was beyond anything even they would try.

The example appears at page 308 of the following:

Howard Wasserman said...

Could all these issues be raised and resolved together in a single case? Are there procedural, jurisdictional, and justiciability limitations (at least in federal court) that may allow this to work?

Think of how the case would have to be framed: A plaintiff challenges one of the religious exemptions (say, a woman who was not allowed to adopt through a Catholic agency) under the religion clauses and then also argues that, if she prevails on that claim and the whole thing falls on the non-severability clause, then the ban on same-sex marriage that remains violates equal protection.

Could one plaintiff do all that in one case? How does she frame that complaint? If she can't do it all, then we see a way this could make a difference: That plaintiff successfully challenges a religious exemption and the whole thing falls. Then a different plaintiff must sue to challenge the ban that remains--perhaps before a different judge and having to deal with all the arguments against judicial (as opposed to legislative) recognition of same-sex marriage.

And this gets even more complicated if the path into court is a religious organization (say, the Catholic Church) seeking a declaration of the validity of the exemptions and losing.

Michael C. Dorf said...


I think the answer to your question is almost certainly yes, these issues would arise in the same suit, assuming competent counsel. I can imagine two sorts of cases that would present the validity of the exemptions: 1) A suit by a same-sex couple against a religious entity; or 2) An action by a religious entity state against the state, arguing that it is being somehow punished in violation of the exemptions.

In the first case, the couple would argue that the exemptions are invalid, whereupon the religious entity would say that if so, there's no statutory right to marry, and then the couple would say that the same factors that lead to the invalidity of the exemption entail a constitutional right to marry--and with it, an obligation on private actors to respect that. Indeed, that could be part of the affirmative complaint. I'm not saying this is a persuasive argument, but if it's not persuasive for a constitutional right to marry, then it's also not persuasive for a statutory right to marry without exemptions--and thus there was no need to worry about these issues.

As for a case between a religious entity and the state, the same applies: the state would invoke the exemptions' invalidity and the constitutional necessity of recognizing same-sex marriage.

Finally, even if a court thought that last issue collateral (which I think would be wrong given its potential to be dispositive), all of the issues would end up in the NY Court of Appeals, so initial assignment to different judges would not have any lasting impact.

AF said...

I'm skeptical that a judge would reason in the way you suggest: hold that the religious exemptions are unconstitutional, strike down the law as a whole, but then hold that gay marriage is constitutionally required.

Though logically consistent, such a decision would be an extremely aggressive assertion of judicial supremacy in the wake of a political compromise that was seemingly accepted by both sides of the debate and widely seen as politically legitimate.

More likely, a judge (or even a litigant) that might otherwise have been disposed to take seriously a challenge to the religious exemptions will be deterred from doing so by the non-severability clause, because he or she will be unwilling to take the aggressive position you outline. Because the non-severability clause raises the political stakes for a court that might otherwise be inclined to strike down the religious exemptions, I think it actually does achieve its backers' goal of making hat outcome less likely.

Michael C. Dorf said...

AF: To the extent that you're right, the non-severability clause is what I call a "coercive fallback" in the article to which I linked in my response to Paul's comment. Coercive fallbacks are problematic as a matter of separation of powers.

AF said...

I'll take a look at your article.

I suppose you could argue (and I'm sure someone has argued) that any severability or non-severability clause is problematic as a matter of separation of powers because they purport to tell judges how to rule.

My intuition is that it's legitimate for legislators to signal to courts, and for courts to take into account, whether or not the provisions of a bill are the product of a conscious political compromise in determining whether to strike down the bill as a whole or only part of it. Unrelated "poison pill" provisions such as your parachute hypothetical are different, of course.

Michael C. Dorf said...

AF: Right. In my article, I make just the distinction you do (with a germaneness test). I reject the notion that severability or non-severability clauses (which I treat as a subset of fallback clauses) are categorically problematic on separation of powers grounds. I didn't consider in the article whether a non-severability clause could, under particular circumstances, be a poison pill, but I think it could be.

bjn said...

I think your option 3 is closest to the truth, but as follows: The "public" don't care about such legal technicalities, but certain important constituencies do, were concerned about the loss of their exception, and have enough pull with Republican legislators to get the blow-up provision included. One obvious candidate, some element of the New York Catholic church, which as we know is opposed to same sex marriage, and has a history of litigating these types of issues (see, e.g., Catholic Charities of Sacramento, Inc. v. Superior Court
32 Cal.4th 527 (Cal.,2004)).

tjchiang said...

Two other options. Neither of which I think actually motivates them, but which are worth thinking about from a philosophical perspective.

4. If a judge does as you say (strikes down the exemption, invalidates the statute, and then imposes same-sex marriage as a matter of constitutional right), it deprives the decision of the sheen of democratic legitimacy. The same-sex marriage movement got a great boost by having this law democratically passed, and getting a judicial decision is not the same thing.

5. Which leads to a corollary: a judge that is otherwise very sympathetic to striking down the religious exemptions might be rather more reluctant to strike these particular religious exemptions down. So if you were looking to establish favorable precedent on broad legislative rights to create religious exemptions, this is potentially one way to induce liberal Democratic judges to buy it.

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