When Governor Andrew Cuomo’s pen signed same-sex “marriage” legislation into law, many municipal clerks believed that beginning July 24^th they would be required to issue gay “marriage” licenses and officiate for same-sex couples.

As a result, Laura L. Fotusky, Barker Town Clerk, became what is believed to be the first New York State clerk to actually resign, rather than place her name on a same-sex “marriage” license. On July 11^th, the Broome County clerk tendered her resignation to the Barker Town Board. In her resignation letter, Fotusky wrote:

“I would be compromising my moral conscience if I participated in the (same-sex “marriage”) licensing procedure. Therefore, I will be resigning as of July 21.”

The gay nuptial legislation has left numerous civil servants in a moral quandary. Their conscience objects to participating in an exercise that violates their sincerely-held religious beliefs, but some powerful elected officials have indicated that a refusal to do so would cost these officials their jobs. On July 8^th, Nassau County District Attorney Kathleen Rice released a letter to town clerks stating:

“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.”

Nassau County DA Rice is not alone, even Gov. Cuomo has perpetuated this notion when he stated:

“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. So if you can't enforce the law, then you shouldn't be in that position.”

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). 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.

Rev. Jason J. McGuire, Executive Director, New Yorkers for Constitutional Freedoms, said, “It is good to be reminded that New York State Law protects all Empire State citizens equally. 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.”

Municipal clerks should review the Alliance Defense Fund Memo and if they desire free legal counsel, contact the Alliance Defense Fund.