N.Y. clerks opposed to gay 'marriage' have lawful options, legal group says
Posted on Jul 19, 2011 | by Whitney Jones
ALBANY, N.Y. (BP)--With gay "marriage" now legal in New York, Christian town clerks across the state have feared that they must either sign marriage licenses for same-sex couples or refuse and lose their job. But those clerks have another option, says the Alliance Defense Fund.
That third choice is to delegate signing the licenses to a deputy clerk or other municipal employee.
The law goes into effect Sunday.
"It is disturbing that public officials have so blithely dismissed New Yorkers' sincerely held beliefs even though millions of New Yorkers believe that marriage is only between a man and a woman," said a legal memo ADF wrote for clerks throughout the state. "But New York law does protect an employee's sincerely held religious beliefs."
New York is the largest and most influential state yet to legalize "gay marriage." Its population is double that of the combined populations of the other five states that allow same-sex couples to marry.
Town clerks are an elected position.
The Alliance Defense Fund, a Christian legal group, pointed to New York law, specifically Executive Law § 296(10)(a), which requires employers to accommodate their employees' religious practices with one exception: "unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's or prospective employee's sincerely held religious observance or practice ... without undue hardship."
And municipalities are easily able to adjust for clerks who believe signing marriage licenses for same-sex couples violates their religious beliefs, according to ADF.
The Domestic Relations Law § 15(3) states that a clerk can designate a deputy clerk or any other city employee "to receive application for, examine applications, investigate and issue marriage licenses in the absence or inability of the clerk ... to act, and said deputy and/or employees so designated are hereby vested with all the powers and duties of said clerk relative thereto."
Therefore, ADF argues, clerks with objections to gay "marriage" because of religious beliefs do not have to sign marriage licenses for same-sex couples and can be completely removed from the process. The clerks only have to request permission for passing the duty to someone else.
"It should be a simple matter to delegate those duties to others who do not object to issuing and signing marriage license for same-sex couples," said the ADF memo.
New Yorkers for Constitutional Freedoms, a Christian group, applauded the ADF memo.
"It is good to be reminded that New York State Law protects all Empire State citizens equally," said the Rev. Jason McGuire, executive director of NYCF. "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."
Democratic Gov. Andrew Cuomo has said town clerks must issue the licenses.
"The law is the law. You enforce the law as is; you don't get to pick and choose those laws.... If you can't enforce the law, you shouldn't be in that position," he said, according to the Times-Union newspaper.
At least two town clerks have resigned or said they will resign. Town Clerk Ruth Sheldon of Granby, N.Y., resigned after praying over the matter, the Times-Union reported. Elsewhere, Barker town clerk Laura Fotusky's last day on the job will be this week.
"The Bible clearly teaches that God created marriage between male and female as a divine gift that preserves families and cultures," Fotusky wrote in her resignation letter. "Since I love and follow Him, I cannot put my signature on something that is against God."
Whitney Jones is a student at Union University in Jackson, Tenn., and an intern with Baptist Press. The ADF legal memo can be read at http://www.nyfrf.org/albanyupdate/New_York_Clerk_Accommodation_Memo.pdf