Anti-Gay Group to NY Clerks: On-the-Job Discrimination Against Gays is Legal

by Kilian Melloy

EDGE Staff Reporter

Wednesday July 20, 2011

An anti-gay legal group is telling clerks in New York state that if they feel like denying service to gay and lesbian families while on the job, state law says they are perfectly free to do so -- as long as their discrimination is based on religious beliefs, reported LGBTQ Nation on July 18.

The Alliance Defense Fund, a Christian group whose motto is "Defending Our First Liberty," has advised anti-gay clerks who are unhappy at the prospect of issuing marriage licenses to same-sex couples that they may refuse to do so in spite of a new state law that takes effect July 24 and grants gay and lesbian families the right to enter into wedlock.

The ADF points to another state law that requires employers in the state to "accommodate sincerely held religious beliefs," LGBT Nation reported.

Another anti-gay Christian organization, New Yorkers for Constitutional Freedoms, has also taken up that argument, and theorizes that if clerks are not willing, they can delegate the issuance of marriage licenses to deputies, the article added.

"A specific provision of New York's Domestic Relations Law § 15(3) allows all of the clerk's duties in issuing marriage licenses to be delegated to a deputy clerk or other municipal employee," New Yorkers for Constitutional Freedoms advised. "It would seem reasonable to conclude that a locality could appoint a deputy clerk or another civil servant, that does not have an objection to same-sex 'marriages', to issue these licenses."

The use of quotation marks around the word "marriages" is a commonplace among anti-gay groups, which deny the legitimacy of legal recognition for any committed couples save those of opposite genders.

"It is good to be reminded that New York State Law protects all Empire State citizens equally," stated the group's head, the Rev. Jason J. McGuire. "Contrary to what some elected officials have indicated, those with sincerely-held religious beliefs do not have to leave their faith at government's door.

McGuire might have been referring to the district attorney of Nassau County, Kathleen Rice. Earlier this month, in response to a clerk's publicly stated objections to issuing marriage licenses to same-sex couples, Rice issued a stern warning to clerks considering denying the necessary paperwork to same-sex families. In essence, a letter from AD Kathleen M. Rice tells the county's clerks to do their jobs -- or face the prospect of criminal charges.

"Recently, a local clerk in upstate New York made headlines when she said she would not issue marriage licenses to same-sex couples," Rice's letter, dated July 8, read. "The Marriage Equality Act provides that an application for a marriage license cannot be denied on the grounds that the applicant parties are of the same sex and the law affords no discretion to public officials charged with granting marriage licenses. Therefore, any such refusal may be subject to criminal prosecution."

The clerk referred to in the letter, Barbara MacEwen, serves the city of Volney, in Oswego County, located in the northwestern part of the state.

"I'm not objecting to having it done here in the office, but I'm objecting to being forced to sign my name to something that is against my morals and my God," MacEwen told the press.

"I don't want to have to leave my position, and I still feel strongly about not wanting to sign, but I'm not sure if there's another way around it," she added.

Laura Fortusky, a clerk in the tiny town of Barker, New York, announced her resignation after having been in contact with McGuire. Her letter of resignation was posted at the New Yorkers for Constitutional Freedoms website.

"I believe that there is a higher law than the law of the land. It is the law of God in the Bible," Fortusky wrote in her letter of resignation. "In Acts 5:29, it states, 'We ought to obey God rather than men.' "

Text at the anti-gay group's site seized in the resignation as a portent of dark days for Christendom.

"For licensed Christian counselors, not directly affiliated with a church, a day may come when the state may refuse licensure to those who practice reparative or ex-gay therapy," the site's text warned.

"Wedding photographers and caterers will similarly find no protection. Refuse to photograph or serve a gay nuptial and people with strong convictions concerning the authentic definition of marriage will find themselves vulnerable to a lawsuit," suggested the text. "Soon town clerks and justices will also be required to issue gay 'marriage' licenses."

For others, however, the idea of issuing marriage licenses to legally entitled gay and lesbian families did not precipitate a crisis of conscience. Rather, they saw carrying out the duties inherent in their jobs as a matter of professionalism.

"If the law says I issue them, then I issue them," New Haven clerk said Debra Allen told the media. "The law does not allow us to pick and choose who we're going to issue licenses to."

Though New York's marriage equality law guarantees that churches and religiously affiliated groups will not be punished if they decline to allow the celebration of same-sex weddings, the same exemptions do not extend to public employees.

"The religious exemptions in the Marriage Equality Act are inapplicable to town and city clerks serving in their license-granting roles, and a public official's intentional refusal to issue marriage licenses to qualified same-sex couples may constitute Official Misconduct, a Class A misdemeanor defined in section 195.00 of the New York State Penal Law," Rice's letter warned.

"The New York State Department of Health will promulgate information to assist you with issuing same-sex marriage licenses before the Marriage Equality Act is effective on July 24, 2011," the letter added. "I am confident that public officials in Nassau County will comply with the law and my office is prepared to offer any assistance necessary to ensure that same-sex couples have access to marriage licenses without issue."

Rice has a gay brother, a fact that she emphasized to gay voters when running for the office of district attorney.

The situation is a virtual re-enactment of how some clerks in Iowa responded when marriage equality came to that state. "Victoria Hutton of the Iowa Department of Public Health informed recorders that the ruling has the force of law statewide," the Des Moines Register reported at the time.

"All county recorders in the state of Iowa are required to comply with the Varnum decision," Hutton informed the clerks, "and to issue marriage licenses to same sex couples in the same manner as licenses issued to opposite gender applicants."

Opponents of marriage equality in Iowa also encouraged recorders there to deny service to gays and lesbians while on the job when marriage equality first became law in that state. According to an April 24, 2009, article at the Chicago Tribune, Republican Iowa state Sen. Merlin Bartz has been accused by a former state lawmaker, Ed Fallon, of attempting to incite refusal to grant marriage licenses to gay couples, despite marriage equality having become legal.

In addition to questioning Bartz's support of the petition, Fallon also posed questions about whether taxpayer money was going toward a Web resource supporting the effort to coax county recorders to flaunt the law. Fallon said that the individuals listed as contacts at the site are also staffers who are paid out of public funds.

In 2008, at the opening of the six-month window between the commencement of marriage equality in California and the passage of Proposition 8 -- which snatched that right from gay and lesbian families once more -- there was some question as to whether clerks in that state should be allowed to opt out of issuing licenses to same-sex couples.

Gavin Newsom, at the time the mayor of San Francisco and now the state's lieutenant governor, told the media, "This is a civil marriage that civil servants have a responsibility to provide. So for civil servants on religious grounds to start passing judgments, they are breaking the core tenet of what civil service is all about."

Lambda Legal attorney Jenny Pizer told EDGE in a June 19, 2008, article, "The employment rules require accommodation of religious beliefs -- and that's an important principal.

"But the duty to accommodate does not go so far as to authorize public employees not to do their jobs or do their jobs in a discriminatory manner," Pizer added.

Kilian Melloy serves as EDGE Media Network's Assistant Arts Editor. He also reviews theater for WBUR. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.

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