It took a week (more, really) for New York Governor Cuomo to negotiate, with conservative GOP members, the "religious exemptions" which are now part of the marriage equality law of New York.
No doubt, absolutely critical to this compromise, was an "inseverability" clause, which says that if any part of the act is struck down by a court, the entire act is invalidated.
My question: is this legal?
It would seem that the opposite type of clause -- a "severability" clause -- is fairly standard in many laws. Such clauses say that, should any part of the law be struck down, the remaining sections of the law shall remain in force.
This clause reads:
THIS ACT IS TO BE CONSTRUED AS A WHOLE, AND ALL PARTS OF IT ARE TO BE READ AND CONSTRUED TOGETHER. 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. NOTHING HEREIN SHALL BE CONSTRUED TO AFFECT THE PARTIES' RIGHT TO APPEAL THE MATTER.
Whether or not such a clause will be respected by courts is a relevant question. In New Jersey, 2008, a lesbian couple sued a Methodist church, for denying them use of a beach-front open-air pavilion in which to solemnize their marriage. This pavilion was largely operated as a public accommodation, the court found, and so the court found for the couple. As a result, the state revoked the church's tax exemption for the property, costing the church $20K in taxes. The church is fighting the decision, saying that religious liberty is in jeopardy.
Given how deep many churches are in the marriage business, it is only a matter of time before an identical situation arises in New York. Someone is going to want to use an accommodation which appears in all ways entirely public, but is going to be owned some denominated church, which will refuse access to the same-sex couple. The couple will sue. The couple will likely win, since what defines a public accommodation is fairly well defined legally; and that could result in the exact same situation as occurred in New Jersey.
And if what happened in New Jersey happens in New York, if the inseverability clause is in force, the entire Marriage Equality Law would be struck down.
In fact, courts regularly ignore inseverability clauses(and severability clauses), applying their own tests for whether or not different clauses are severable.
Furthermore it is an open legal question whether or not such clauses are constitutional, the conclusion in this article being that they are not, because they test the limits of what the judicial branch has purvey to enforce as a legal remedy.
As such: it seems very likely that, even though a blank reading of the Marriage Equality Law, combined with the reasonable expectation that the religious exception challenge which happened in New Jersey will happen in New York as well, a court will have to consider if the inseverability clause is valid, and it seems likely it will not.