New York Clerk Could Face Lawsuit for Marriage License Refusal

By Julie Bolcer

Originally published on Advocate.com September 15 2011 8:35 PM ET

The decision by a town clerk in Ledyard, N.Y., not to issue marriage licenses for same-sex couples could result in the first lawsuit against public servants who refuse to perform their duties under the state’s new marriage equality law.

Last month Ledyard town clerk Rose Marie Belforti sent a letter to the town board announcing her decision not to sign marriage licenses for same-sex couples based on her Christian religious beliefs. She proposed that she assign the task to a deputy.

That arrangement posed a problem August 30 when a lesbian couple from Florida, Katie Carmichael and Deidre Dibiaggio, applied in person for a marriage license. The women, who own a home in Cayuga County, where Ledyard is located, met all the legal requirements, but they were asked to return when a deputy would be available.

“She told them they would have to schedule an appointment, because of course the deputy clerk was not there,” said Arthur Bellinzoni, a friend who accompanied the women to the clerk’s office. “But she will not do it. That’s illegal.”

People for the American Way agrees, and over the weekend, with law firm Proskauer Rose, the group sent a letter to Belforti and town supervisor Mark Jordan before the board’s regular meeting on Monday. The letter demanded that the board direct Belforti to either perform her job or resign, or else the clerk and the town could face the possibility of further legal action. The letter included an earlier memorandum from the state to city and town clerks explaining that failure to issue marriage licenses to same-sex couples would constitute a misdemeanor violation under the new law.

“Elected officials don’t get to pick and choose what laws they follow,” said PFAW spokesman Drew Courtney. “A county clerk that doesn’t like hunting doesn’t get to not issue hunting licenses. People for the American Way will be the first ones to defend her freedom of conscience, but she signed up to do a job. If she doesn’t want to do that job, she should resign.”

Clerks from Broome and Oswego counties have already resigned rather than issue same-sex marriage licenses, an action that Gov. Andrew Cuomo called the appropriate choice. The potential lawsuit against Belforti and the town of Ledyard would be the first of its kind since the marriage equality law took effect in July.

The Monday board meeting did not result in any action against Belforti, who this week told local media that she would not resign. However, the controversy appears to have split the board and drawn considerable attention to the rural town of about 2,000 residents near Ithaca.

“It was the sole agenda item at the meeting,” said Greg Robbins, a resident of Ledyard for more than five years, who attended with his partner. “Many, many, many people told her that their opinion was that she should do her job or resign. There were lots of interesting questions raised.”

Key questions involve the arrangement between Belforti and the town that resulted in her not signing any marriage licenses and delegating the task to a subordinate. Deputy town supervisor Jim Frisch said that her letter from August, a public record that he could not immediately locate for review, notified the board that she refused to serve same-sex couples and would appoint a deputy.

He said the board in response consulted its attorney, who advised appointing a deputy as soon as possible. Frisch and supervisor Jordan then met with Belforti in August, and the deputy supervisor offered his personal opinion that it would only be fair for the clerk to take an “all or nothing” approach and issue no marriage licenses rather than single out same-sex couples.

“I guess you’d say we were outside the board because the board had not directed us to do this,” said Frisch. “This is really fuzzy.”

Their independent attempt to address the problem generated confusion and more questions. Some wondered why the supervisor and deputy supervisor would confer with Belforti if, as Frisch insists, the clerk “does not take marching orders” from the board. He maintains that the board cannot force the clerk, an elected official, to resign.

“They were very evasive,” said Bellonzini, a PFAW board member and resident of Aurora, a village in Ledyard, who attended the meeting Monday. “It was clear that some members of the town board were not happy with this, the way the process had unfolded.”

Frisch acknowledged the arrangement may not be ideal, but he described it as a short-term attempt to comply with “the spirit of the law” in a manner satisfactory to all the parties concerned. He said that the Ledyard town clerk married fewer than 10 couples per year and that most of them called before visiting the office.

“Are we talking about a horde of people standing outside the door? We are not,” he said. “Are we talking about an inconvenience? We are. Are we talking about discrimination? We are not. It doesn’t make any difference whether it’s a homosexual couple or a heterosexual couple. If they show up, they are told they will need to make an appointment.”

That answer does not satisfy People for the American Way, which following the Monday town board meeting launched a petition demanding that Belforti sign all marriage licenses or resign. The clerk is up for reelection this November, and some local activists are considering a push for a write-in candidate to challenge her.

“We’re continuing to explore our options,” said PFAW’s Courtney, who declined to provide a timetable for legal action. “It didn’t happen, so we still have a problem.”

New Yorkers for Constitutional Freedoms, which filed suit against the State Senate over the marriage equality law over the summer, is connecting Belforti and other clerks to legal support through its Courage Fund. The evangelical Protestant group argues that state law allows clerks to delegate their responsibilities and requires employers to accommodate religious observances and practices. New Yorkers for Constitutional Freedoms did not respond to a request for comment.

According to records, Belforti earned $19,116 last year for her part-time position as clerk. She owns a dairy business, the Finger Lakes Dexter Creamery, where a woman who answered the phone Thursday afternoon said Belforti was not available.