Alliance Defense Fund Defends New York Clerks

By Julie Bolcer

Originally published on Advocate.com July 18 2011 11:55 AM ET

The Alliance Defense Fund has issued a legal memo in defense of New York municipal clerks who object to issuing marriage licenses to same-sex couples and officiating the ceremonies on the grounds of religious belief.

New Yorkers for Constitutional Freedoms, an evangelical Protestant organization that opposes the new marriage equality and plans to protest this Sunday, the first day same-sex couples are legally able to marry, reports on the memo. Earlier this month, Laura Fotusky, the town clerk of Barker in Broome County, resigned from her position, which paid $24,205 per year, rather than marry same-sex couples, citing her religious beliefs.

“But according to a recently released Alliance Defense Fund memorandum New York Law requires employers to accommodate sincerely held religious beliefs under Executive Law § 296(10)(a),” reports New Yorkers for Constitutional Freedoms, “This section of the law requires employers to accommodate an employee's religious observance or practice, ‘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.’

“Furthermore, 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. 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,” according to New Yorkers for Constitutional Freedoms.

The Marriage Equality Act, which passed the state legislature last month with bipartisan report, includes exemptions for religious institutions that do not want to solemnize same-sex weddings or provide facilities for the celebrations. However, Gov. Andrew Cuomo said last week that because they are assigned to enforce the laws of the state, Fotusky and other clerks should follow the law, or step down from their positions.

"You don't get to say, 'I like this law and I'll enforce this law, or I don't like this law and I won't enforce this law' — you can't do that," said the governor.

The Alliance Defense Fund, a conservative Christian group, is offering free legal counsel to municipal clerks in New York who have concerns about the new marriage equality law.