hunter of justice

Toward a sensible religious accommodation in DC

In my view, when the legal consequences of same-sex marriage or civil rights laws affect religious providers of social services, both the law enforcement authorities and the sectarian groups should stretch to find a solution that allows the anti-discrimination principle to take effect while not forcing the religious entity to actively endorse a tenet which runs counter to its faith.  When this cannot be achieved and when the religious groups are receiving public funds, human services officials should have the discretion to suspend enforcement of an anti-discrimination mandate until equivalent services can be obtained, with the caveat that a transition must genuinely go forward.

In other words, I support a phase-in period when applying an anti-discrimination law to government contractors that claim a religious objection, if necessary to protect a vulnerable population.

In DC, this kind of situation has arisen because Archbishop Wuerl has threatened to stop providing a variety of services to indigent residents, for which Catholic agencies receive roughly $20 million a year in government funds. The top priority should be to insure that the people receiving those services experience no harm if a changeover to other providers is required, but there is no reason that an orderly transition cannot take place.

Compromise may still avert this kind of hostage-taking of defenseless people. Negotiations in DC are ongoing to find language that could be adopted a week from Tuesday (Dec 15), when the Council takes its final vote and will, with or without a workaround for the Archdiocese, adopt the marriage bill. (Because DC laws must remain in limbo for potential Congressional review, same-sex marriages are not likely to become actually available until sometime in the spring.)

From a Washington Post editorial:

Catholic Charities's intransigence is mystifying. The fight going on in the District today took place 13 years ago in San Francisco.

When that city's Board of Supervisors unanimously passed a law requiring city contractors to provide spousal benefits to domestic partners, Archbishop William J. Levada protested. He raised the same objections we're hearing today. But a compromise was reached after a meeting with then-Mayor Willie Brown and four supervisors. A business or agency with a city contract is in compliance with the law if it "allows each employee to designate a legally domiciled member of the employee's household as being eligible for spousal equivalent benefits." Georgetown University provides another model. It provides medical, dental and vision coverage to an employee's spouse or a "legally domiciled adult" defined as someone 18 or older who has lived with the employee for at least six months. A "Legally Domiciled Adult Certification Form" must be filed.

These two models [now being offered by DC Councilmembers] are worthy compromises that should allow the Catholic Charities to be within the law without violating church principles.

Who's on first? Congress and states reshuffle lgbt issues - Updated

In  last week's election, Maine, New Jersey and Virginia delivered a triple whammy to progressives.  Although it is a mistake to treat these results as a herald of conservative resurgence - polls also show strong support for a public option in health reform, for example - it is nonetheless silly to deny that winning the elections in those three states (or two, or one) would have been a lot better than losing all of them. Instead, marriage bit the dust in yet another ballot contest; and Dems in Congress are spooked by the loss of the two governorships, no matter how many op-eds proclaim that the results were driven by local issues.

So what happens as a result?  As one of the most vulnerable and expendable of Dem priorities, lgbt issues look considerably shakier than they did two weeks ago.

In Congress, Rep. Barney Frank - who, whatever his faults, often speaks realpolitik to wishful thinking - now says that ENDA will likely get to the House floor in February.  This is not what advocates were thinking two weeks ago, when the sense was that mark-up in the House, followed by a floor vote, could happen before Thanksgiving, certainly before Christmas.  Instead, Barney is predicting that domestic partner benefits for federal employees is likely to jump the queue, moving ahead of ENDA in the sequence of lgbt rights legislation. Okay, federal employee benefits is an important issue. But ENDA is the bill that will shift workplace dynamics and help achieve basic material equality for every lgbt person in the nation who is employed. 

The difference between the two? ENDA includes transgender persons; partner benefits does not implicate that issue. In other words, this is ugly. And dangerous. It is ESSENTIAL that both the House and the Senate pass ENDA before the 2010 election season begins in a few months, around spring break in academic-speak. (In some, mostly Beltway, politics-obsessed quarters, it began on November 5, 2008.)

(UPDATE 11/17 - The mark-up in the House committee on the Domestic Partners Benefits and Obligations Act will be next Wednesday, November 18. You can watch it here. The mark-up on ENDA was originally set for the 18th, but has been postponed, with no new date set.)

And in the states -

In New Jersey, the plan was always that the lame duck legislative session would enact a marriage law, regardless of who won the governor's race. That is still the plan, but it looks less like a lock than it once did.  Soon to be ex-Governor Jon Corzine will sign a marriage law if it gets to him in the two months remaining in his term. After that, incoming Governor Chris Christie has vowed to veto such a bill. Although the top job changed hands, there was essentially no change in the party breakdown in the legislature. So will the deal to pass a new marriage bill hold, or will the Maine vote scare off enough legislators to delay any possibility in NJ for another four years? Apparently, there is little doubt that a marriage bill would make it through the state house, but the state senate vote is likely to be a squeaker.

And New York ...What can I say -- New York's state legislature has been dysfunctional for so long that even the smallest sign of adulthood looks like up from here. Governor David Paterson, who is as strong a supporter of marriage equality as any non-gay politician anywhere, has apparently struck a deal with state senate leaders to guarantee that there will be vote on the issue before Christmas. (See Gay City News for a fascinating account of the machinations.) Which side will win this vote is anybody's guess.

If we get to New Year's Day 2010 and neither New York nor New Jersey has legalized gay marriage, that campaign will be hitting its lavender ceiling much sooner than the advocacy groups expected.

State lgbt equality laws lag behind popular opinion

According to an article in the current American Political Science Review (103 APSR 367), popular support for enacting anti-discrimination and relationship recognition laws is significantly ahead of legislative action in most states. The authors find "a surprising amount of noncongruence [between public opinion and policy adoption]—for some policies, even clear supermajority support seems insufficient for adoption. When noncongruent, policy tends to be more conservative than desired by voters; that is, there is little progay policy bias."

The NY Times Economix blog illustrates this finding in the chart below:

Bubbles are placed to represent public opinion on a gay rights issue, with bubbles farther to the right indicating greater public support. For example, the red bubble on the line for California shows that slightly less than half of Californians say same-sex couples should have the right to marry. Filled-in bubbles signify that the policy has been adopted in that state (either by legislative or judicial action). The red bubble for California, for example, is not filled in, indicating that gays in the state are not currently allowed to marry.

Let’s take a look at the graphic [below], keeping an eye on the dashed vertical line in the middle that designates 50 percent support for any given policy. Bubbles to the right of that line have support from the majority of a state’s population; bubbles to the left of the line have support from less than half the state’s population. Notice that there are many more unfilled bubbles on the right side of the line (representing policies that the majority of people support but that have not been put into effect) than there are filled bubbles on the left side of the line (representing policies that the majority of people do not support, but that have been implemented anyway).

The big outlier is Iowa, where polls show only slightly more support for gay marriage than in Virginia, but where the state supreme court last year struck down the marriage exclusion. And if this chart is correct, the anti-gay marriage forces in Maine should be able to win the referendum there next week. If they don't, it may signify the ability of lgbt rights groups to use an election to nudge public opinion over the halfway mark, at least in some situations.

Even more statistically dramatic, though, is the gap between support for and enactment of laws protecting against job discrimination. In only 2 states does public support fall (barely) below 51% - Oklahoma and Arkansas - yet there are 29 states where legislatures have rejected anti-discrimination legislation. If this chart isn't a powerful argument for Congress to step up to a politically safe plate and pass ENDA, I don't know what is.

Critical moments in New England campaigns for marriage equality

The Boston History Project sponsored a panel discussion recently in which GLAD Legal Director Gary Buseck posed questions to two of the leading advocates for gay marriage: GLAD lawyer Mary Bonauto and Vermont Freedom to Marry lawyer Beth Robinson.  The result is a window into the history of the litigation and legislative efforts across New England, beginning more than a decade ago. Listening to the video below (excerpts of the discussion, compiled by GLAD) reminded me of how profoundly local these decisions are. I found especially interesting the background on the civil unions law in Vermont - its enactment and the almost successful attempt to repeal it. And there's a very funny story about then Vermont Governor Howard Dean at the end of the first excerpt.

DC should not eliminate domestic partnerships when it authorizes gay marriage

One of the questions associated with legalizing gay marriage is the question of what to do about existing domestic partnership laws which create some meaningful form of legal recognition for relationships in addition to the standard conjugal couple form. Unfortunately, DC City Councilmember David Catania's bill to legalize gay marriage also would terminate access to domestic partnerships. 

Big mistake.

In DC, domestic partnerships are open not just to gay or even straight unmarried couples, but also to any two people in "a committed, familial relationship." I don't have any problem with eliminating civil union laws, because typically they create only a marriage mimic status, with all of the rights and responsibilities of marriage, open only to same-sex couples. If same-sex marriage becomes legal in one of those states, there is no reason to preserve civil unions, which really are just a segregated, second-class form of marriage. But DP laws such as the one in DC have created rights for non-gay folks and/or non-couples, and they shouldn't be dropped because gay couples acquire the right to marry.

Happily, there has been something of a revolt against this part of the bill within the DC lgbt community. A Council hearing on the bill tonight, at which more than 250 people have signed up to testify, will center mostly on the merits of legalizing gay marriage and the religious arguments pro or con, and will doubtless produce a massive amount of noise and probably not a single new argument on either side. However, some of the testimony in support of the marriage bill will also oppose the DP sunset provision. I endorse the arguments being made by Nancy Polikoff, who will testify about the importance of not limiting legal protections to couples, but extending them to other family forms as well.

Other jurisdictions that move from a domestic partnership system to marriage rights for gay couples will also have to decide whether to extinguish recognition for the different sex couples and others who can qualify as DPs. Currently, coverage varies from state to state. The next place where this issue will have to be addressed will probably be New Jersey. Thinking through how non-marital family recognition laws should be structured after gay couples have the right to marry is an important issue, for the gay and straight couples who choose not to marry, for people in various other forms of familial relationships, and for family law in general.

UPDATE - The provision phasing out domestic partnerships was dropped by the committee.

Safer schools in North Carolina

Since one of the first posts on this blog, a little more than a year ago, was about the failure of the North Carolina legislature to pass an anti-bullying bill because it would protect gay and transgender kids, I thought it only fair to note that this year, the legislature got the job done. 

The NC School Violence Prevention Act was signed into law by the Governor on June 30. It requires each local school district to adopt, publicize and enforce explicit anti-bullying policies. The new law squeaked by in both houses of the state legislature: by votes of 26 to 22 in the state senate and 63 to 51 in the house.

The act is the first state-wide law in NC to protect against any form of discrimination based on sexual orientation or gender identity and the first state-wide law in any southern state to protect against gender identity discrimination. Congrats to Equality NC!

Will the New Hampshire religious exemption become a model for new marriage laws?

From The National Journal:

...When the New Hampshire law goes into effect Jan. 1, it will override the state's employee nondiscrimination laws that protect gays and lesbians. Religious organizations will be able to deny gay couples housing designated for married people and marriage counseling, and fraternal societies like the Knights of Columbus won't have to offer benefits to their employees' same-sex spouses, according to Robin Fretwell Wilson, a law professor at Washington and Lee Law School who lobbied for the New Hampshire protections.

In the Granite State, such exemptions were crucial to the bill's passage. Gov. John Lynch, who personally opposes gay marriage, refused to sign the bill until wide-ranging religious exemptions were added....

"At some point you've got to say, 'We're gonna get that law, and we've got to salvage religious liberties as the next best option,'" said William Duncan, president of the conservative Marriage Law Foundation....

Leading the charge on conscience exemptions are a half-dozen lawyers, some of whom support gay marriage and others focused on safeguarding religious freedoms. They lobbied Lynch this spring and even pressed for broader exemptions that would have allowed small-business owners to deny services to gay couples ...

In a May 22 letter to Lynch, law professors Andrew Koppelman (Northwestern), Michael Perry (Emory) and Douglas Laycock (University of Michigan), along with Marc D. Stern of the American Jewish Congress, argued that the exemptions would not "enshrine bigotry" but rather "enshrine religious liberty and the live-and-let-live traditions of the American people."

Many of those same lawyers and others are trying to push the needle this summer in New York, where they are encouraging lawmakers to include religious protections in a same-sex marriage bill there....

"In California, you only needed to flip 2 percent of voters," Laycock said, referring to Proposition 8's victory last November by a 52-48 margin. "If you put in the religious exemption, I think you flip that 2 percent."

That still leaves a sizable minority who support marriage restrictions, and talk of a truce may be premature. "This doesn't go to our deepest concern, which is that changing the definition of marriage is bad for society, because we believe children need a mother and a father," Duncan said. "I think the ideological polarization is a little bit sharper than some people think."...

NY State Senate: The farce goes on

For a fourth day, pandemonium reigned in Albany.

Republicans used a mysterious set of keys to force their way into the Senate chamber for the first time since their leadership coup on Monday. Protesters chanted “Senate not for sale” and banged on the chamber’s windows while Republicans tried to convene. And the Republicans’ vow to resume the session fizzled after one of the two dissident Democrats they were depending on for a quorum, Hiram Monserrate of Queens, walked out of the chamber shortly after the proceedings began.

Both sides continued to battle in court; a hearing is set for Friday morning, and Democrats will argue that the Republicans’ coup was illegitimate.

“The dysfunction and chaos in the Senate has wasted an entire week of the people’s business,” a clearly irritated Gov. David A. Paterson said in a statement released Thursday. He has been largely relegated to the sidelines during the dispute.

By day’s end, it was clear that the balance of power in the state’s upper house — and the very gears of state government — continued to rest in the hands of Mr. Monserrate, who was indicted in March on charges of slashing his female companion with a broken glass.

As he was leaving the Senate chamber, a Republican staff member dashed after him, pleading, “Senator, we need you back in there.” But Mr. Monserrate said he was committed to recruiting more Democrats to join the coalition and would be holding meetings all day in hopes of doing so, even as those Democrats were simultaneously trying to woo him back to their side.

There were many other developments throughout the day. The Senate’s new president, Pedro Espada Jr., a Bronx Democrat sharing power with Republicans, tried to lure his former Democratic colleagues back to the chamber by offering to bring same-sex marriage legislation to the Senate’s floor next week, for the first time in the Senate’s history.

His comments prompted the Senate’s only openly gay member, Thomas K. Duane, to say he was open to abandoning the Democratic caucus, a day after his staff insisted he was staying put. “Today, I’m in the Democratic conference, and I’m a Democrat,” he added. “There’s no way to predict what’s going to happen tomorrow, let alone what’s going to happen when everyone comes back on Monday.”

Democrats also huddled behind closed doors to decide the fate of their leader, Malcolm A. Smith, whom many blame for losing control of the first Democratic Senate majority in four decades after just five months. Senator John L. Sampson, a Brooklyn Democrat, is seen as Mr. Smith’s most likely potential successor, though Democrats cautioned that they were not yet prepared to depose Mr. Smith.

Further complicating matters, Mr. Monserrate reiterated his support for Mr. Espada, but would not answer when asked repeatedly if he still supported Dean G. Skelos, a Long Island Republican who was named majority leader on Monday, in a power-sharing deal with Mr. Espada.

Certainly, the rising political fortunes of Mr. Espada and Mr. Monserrate have given many pause. Mr. Monserrate has his pending criminal case. Mr. Espada has been fined more than $60,000 for failing to disclose his campaign contributions; the attorney general is investigating whether a nonprofit group he founded misappropriated money, and the Bronx district attorney is investigating whether his primary residence is in his district.

As Senate president, he would become governor if David A. Paterson were incapacitated, though a court temporarily blocked Mr. Espada from becoming second in the line of succession Thursday. If he remains president, it appears that the State Constitution gives Mr. Espada the authority to issue pardons even if Mr. Paterson is merely traveling out of state — potentially even to himself — though there is some dispute about the legal fine points.

Source: NY Times

NY state legislature outdoes even itself, Senate flips back to Republicans

You know that update on the NY state legislative session that I posted this morning, that's one down the blog's main page from this one -- well, as the late great Gilda Radner would say, never mind. And if you thought I was exaggerating in my description about how dysfunctional the NY legislature is, boy were you wrong.

Republicans in the State Senate staged a bloodless coup this afternoon, and took back majority control. Exactly what it will mean for the marriage bill that the Dems lost control of the Senate I can't say, except that it can't be good. But then, who knows -- maybe these clowns will flip back tomorrow. To quote the apparently deposed majority leader: I'm still trying to figure it out.

Republicans regained control of the New York State Senate on Monday afternoon, winning support from two dissident Democrats in a surprise power-sharing deal. The sudden coup effectively ended Democratic control of Albany after five months and allowed Dean G. Skelos of Long Island to reclaim the title of majority leader, replacing Malcolm A. Smith of Queens.

The shakeup also left Pedro Espada Jr., a Bronx Democrat, as president of the Senate. He becomes the highest ranking Latino in the state’s history, but will have to share power with Mr. Skelos.

Concern over a failure to adopt new Senate rules, coupled with anger over a tax increase included in the recently passed state budget deal, was said to have led to the switch.

The two Democratic defectors said they remained Democrats, and even after the vote, Mr. Smith was not conceding defeat. “This was an illegal and unlawful attempt to gain control of the Senate and reverse the will of the people who voted for a Democratic majority,” according to a statement from Senator Smith’s office. “Nothing has changed; Senator Malcolm A. Smith remains the duly elected temporary president and majority leader.”

Democrats — who regained control in January after more than four decades of Republican rule — were caught off guard by the insurrection. As the events were unfolding on the floor, Senator Smith, huddled in the hall just off the Senate chamber and consulted with his staff. When asked what was occurring, he responded, “I’m trying to find out right now.”

The change of power upends the legislative debate in Albany and changes the landscape on any number of issues, from mayoral control of New York City’s schools to gay marriage.

The raucous leadership fight erupted on the floor of the Senate around 3 p.m., with two Democrats, Mr. Espada and Hiram Monserrate of Queens, joining the 30 Senate Republicans in a series of parliamentary maneuvers. Democrats tried to stall, storming from the chamber and even turning off the lights, but Republicans continued the session and elected new leadership....

Mr. Monserrate was indicted in March on charges that he stabbed his companion late last year with a drinking glass, leaving a gash that required 20 stitches to close.

Source: NY Times

NY State legislative session winds down and heats up

Maybe somewhere there is a state legislature more dysfunctional than New York's, but I doubt it. New Yorkers practically cry in gratitude when a budget is adopted or meaningful legislation enacted.  New York, in other words, has the Mississippi of state legislatures.

This year, one of the bills which might or might not be enacted is one legalizing gay marriage. The Assembly starting passing gay marriage bills several years ago, but they always died in the Republican-controlled Senate.  Last November, with the help of a wave of gay dollars from around the country, the Dems won a one-vote majority in the Senate. 

No one, however, knows whether the new Senate leadership can stitch together a majority, given that some Dems have announced their opposition. Nate Silver, whose reputation was built on predicting political outcomes by focusing on data analysis, delved into the numbers relevant to the New York marriage debate, and he concluded that ... he couldn't tell - the bill probably has about a 50-50 chance.

By contrast, openly gay State Senator Tom Duane said in a speech on June 1 that he has the votes to pass the marriage bill. Here is Paul Schindler's (Gay City News) latest take:

New Hampshire becomes 6th state to legalize gay marriage

In what must have been a long day in Manchester, a bill clearing the path to same-sex marriage passed both chambers of the New Hampshire legislature and was signed by the governor. The Senate followed by the House passed a bill containing the compromise language worked out in committee to protect the religious liberty rights of gay marriage opponents. Governor Lynch added his signature about an hour after it cleared the final legislative hurdle. The new law will take effect in January 2010.

The new language changes only two aspects of the original bill passed last month:

• It adds a sentence specifying that all religious organizations, associations or societies have exclusive control over their doctrines, policies, teachings and beliefs on marriage
• It clarifies that organizations related to faith groups are exempt from having to provide insurance and other benefits to same-sex spouses if the organization serves charitable OR educational purposes.

Conservative-gay bedfellows derail NH marriage bill

The Boston Globe reports that anti-gay marriage Republicans in the New Hampshire House, joined by a small number of marriage equality proponents, have halted the revised marriage bill containing the expanded religious exemption requested by the governor.  Now the two chambers, presumably with the governor's office, will attempt to negotiate a compromise.

...A handful of gay-rights proponents sided with Republicans in the Democratic-controlled House to vote down the bill 188-186 Wednesday, hours after the Senate approved the gay-marriage legislation by 14-10 along party lines. ...

The vote against the governor's amendment sends the bill to a committee where lawmakers from both chambers will try to resolve their differences. "We recognize this is part of the normal process of passing significant legislation and I look forward to working with my House colleagues on this bill," said Senate President Sylvia Larsen, a Democrat.

The governor has said he would veto gay marriage if his wording was not adopted. "The governor articulated strong principles that needed to be included in order for him to sign the bill," said the governor's spokesman, Colin Manning. "While he will continue to talk with lawmakers, those principles must be maintained in any final version of the bill."

State Representative Steve Vaillancourt, an openly gay Republican, was a leading voice against the amendment securing religious liberties, saying the House should not be "bullied" by the governor....

"We are pleased that common sense prevailed," said Kevin Smith, executive director of Cornerstone Policy Research, which has campaigned against same-sex marriage in New Hampshire. ...

Race, sex and lobbying in a purple state

From the Durham News, Pam Spaulding recounts lobbying for equality in North Carolina:

I recently attended the Equality NC Day of Action at the state legislature, where average citizens met with lawmakers to discuss pro-equality bills and urge them to oppose a constitutional amendment bill banning same-sex marriage.

The real story, however, is what happened when a group of us -- black lesbian, gay, bisexual and transgender North Carolinians -- met with members of the Legislative Black Caucus. It was a shocking experience.

It's hard for some people to acknowledge that LGBT rights issues are social justice issues, but to see this play out in person was disturbing. We stopped in to see Rep. Alma Adams (D-Guilford). She supports the anti-bullying bill and opposes the marriage amendment. However, there was a very strange dynamic going on during the meeting.

We let actual constituents of the lawmaker take the lead. In this meeting, it was a young gay white man from Adams' district. Longtime social justice advocate and fellow Bull City resident Mandy Carter and I, and at least four other black LGBTs were present when the constituent asked if Adams, as chair of the black caucus, would speak with her colleagues who support the marriage amendment.

The answer she gave was pretty astonishing.

1. The amendment "isn't going anywhere," therefore there isn't any point to discuss it with those caucus members. (It is buried in four committees in the House; on the Senate side it was assigned to a committee that hasn't met since 2001);

2. It's not her job to try to educate those black members who support the amendment about why it's an affront to our state constitution;

3. Adams actually said, "your issues are not the black caucus's issues" -- social justice for black LGBTs is not a matter of their concern, even as several black LGBTs stood right there before her. We were all stunned into silence. The lawmaker was apparently unaware of the recent letter released by NAACP national board chair Julian Bond and President Ben Jealous that fully supports LGBT rights, including the right to marry.

Ironically, the Legislative Black Caucus's own Web site says: "Justice - Assure equal protection under the law for African-Americans, other racial/ethnic minorities, the mentally ill and the poor."

I guess that means "except if you're black and LGBT."

We also met with a member of the black caucus who supports the marriage amendment, Rep. Earline W. Parmon (D-Guilford; my rep on the caucus, Larry Hall, was unavailable). She is in favor of the Healthy Youth Act and the anti-bullying bill. But on marriage, she parts ways, citing these reasons:

1. It's a "personal issue" for her. (as opposed to representing her voters' interests)

2. "I'm a minister." (church-state separation, anyone?)

3. "I'm not against anyone, one to one."

That last statement suggests she only wants to "protect marriage," but is sympathetic to same-sex couples' legal concerns. Yet the amendment would eliminate any legal recognition. No civil unions, no domestic partnerships, nada:

"Marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."

If either lawmaker stepped into a time machine that took them just a few generations back in time, they couldn't vote, never mind hold office, or even marry a person of the same race, let alone another race -- all justified by the Bible.

The day taught me that spending face time with our lawmakers is essential, and for black LGBTs it's critical. We left committed to return because lawmakers need to see us and hear our stories.

You can read my full report, with video and photos, here: http://tinyurl.com/c5ynol

Vermont legalizes gay marriage by super-majority vote of legislature

Together with the Iowa Supreme Court's unanimous decision, this was the week that made the inevitable, well, inevitable. VIdeo of the debate and vote is here. 

UPDATE: The newspaper of record is recording this week as a "watershed." The Washington Post is reporting on the angst among Republican strategists about how to handle the issue.  A Quinnipiac Institute pollster is skeptical that there will be much national impact, especially in Congress. A Dallas Morning News columnist calls for resistance to gay marriage, which he describes as "ideological fantasy and bloviation." Washington Times columnist and super conservative Cal Thomas admits the new reality: "The battle over gay marriage is on the way to being lost."

Will court nudge the legislature in New York?

New York's highest state court, the Court of Appeals, granted review yesterday in two cases in which conservatives challenged lower court decisions recognizing out-of-state same-sex marriages as valid. The Alliance Defense Fund, which represents the parties who just persuaded the court to hear their cases, is probably ecstatic. Since lgbt rights groups had won the lower court decisions, they tried - unsuccessfully - to persuade the court not to hear the appeals.

One case, Godfrey v. Spano, 871 N.Y.S.2d 296, stems from the Westchester County executive’s 2006 decision to begin officially honoring out-of-state marriage licenses for gay couples the same way it did for heterosexual couples.

The other case, Lewis v. New York State Department of Civil Service, 872 N.Y.S.2d 578, was filed after the department agreed in 2007 to begin recognizing out-of-state, same-sex marriages for the purpose of extending health insurance to spouses of public employees.

So, on the face of it, not good news for the lgbt team.  Meanwhile, there is another major battle brewing in the state. The marriage equality bill is bottled up in the wildly dysfunctional New York State Senate, creating such a mess that the Majority Leader told an HRC dinner that it was a no-go for this year.  That really slapped a wet blanket on the crowd, not least because it was lots and lots and lots of gay dollars from around the country that fueled the Dems' takeover of that particular legislative body.

So, the worst case scenario is that everything goes to hell in New York this year: the court rules that out-of-state marriages can't be recognized until New York's legislature clearly signals that the state's public policy has changed and the NYS Senate sinks deeper into the morass of budget crisis and paralysis.

On the other hand ... maybe the pendency of these two cases will jolt the Senate out of its perennial coma. If the Court of Appeals reverses the lower court decisions, there will be a fair number of New York couples stuck in a weird position very similar to that of the 18,000 in California: they were married where the marriage was lawful (probably most in Massachusetts) at a time when their state of residence (NY) recognized the marriage. But suddenly, their marriage is in legal limbo. This situation - or even the threat of it materializing - makes it urgent for the legislature to do something.

If that scenario plays out, yesterday's court's decision will have produced a very big silver lining for lgbt advocates and a pyrhhic victory for ADF.