A DISCUSSION OF LAW AND JOURNALISM

A Guilty Conscience?

By Drew Carroll and Halina Schiffman-Shilo

On June 24, the Empire State Building was lit up by the rainbow colors of gay pride in celebration of the passage of the Marriage Equality Act, which legalizes same-sex marriage in New York. Many lauded the bill’s passage. Somewhere in a small town in upstate New York, Rose Marie Belforti, for one, was less thrilled.

For 10 years, Ms. Belforti has served as the town clerk in Ledyard, a small farming community near Syracuse. A farmer, cheese maker, and mother of four, Ms. Belforti is now at the center of a fierce debate over whether religious beliefs can exempt public officials from performing mandated duties. A devout Christian, Ms. Belforti condemns homosexuality.  Though part of her job is to issue marriage licenses, when a gay couple showed up a few weeks after the Marriage Equality Act took effect in July, she refused to issue one. The couple should come back when her deputy was there, she told them, and ask the deputy to issue the license.

Represented by People for the American Way and the New York firm Proskauer Rose, the couple has threatened to sue, maintaining that the new law requires government employees to issue same-sex marriage licenses. Resign or give us a license, is their message to Ms. Belforti. And New York Governor Andrew Cuomo seems to be on their side.  After the Act passed, Governor Cuomo stated, “The law is the law. When you enforce the laws of the state, you don’t get to pick and choose.” In addition, the Department of Health sent a memorandum to every town clerk in New York indicating that refusal to issue marriage licenses to gay couples would be a misdemeanor offense.

Ms. Belforti, in turn, has a message for the Governor and the gay couple: “This is about my religious freedom.”

They each have a point.

The First Amendment protects everyone’s right to practice her religion, and Ms. Belforti clearly feels that her right to practice is being compromised. But here’s the problem: Ms. Belforti is an elected public official. Can she refuse to perform her duties if they conflict with a personal belief? The media ask the question but haven’t come to any clear conclusion. As we’ve said, no lawsuits have been filed yet, but LASIS analyzes the chances of Ms. Belforti saving her job if they were.  

Following the Supreme Court’s decision in Roe v. Wade, which established a woman’s constitutional right to an abortion, the Senate passed The Church Amendments, which exempt individuals and organizations who receive public funds from performing an abortion if it “would be contrary to their religious beliefs or moral convictions.” The Amendments, or “conscience clauses,” have been expanded over time to cover certain duties that health care providers can opt out of, such as offering access to contraception. But the Obama Administration recently repealed some of these exemptions, and neither Congress nor the courts has ever extended conscience clause exemptions to cover governmental officials.

And though a Facebook page in support of Ms. Belforti says that forcing her to issue marriage licenses to same-sex couples would violate her right to express her religious beliefs, the Supreme Court disagrees. In its 1990 opinion Employment Division v. Smith, the Court stated that religious beliefs do not “relieve the citizen” from carrying out her “political responsibilities.” So unless laws target specific religious groups in a discriminatory way, these laws are safe from judicial scrutiny.

New York’s Marriage Equality Act, far from singling out any religious group, extends the right to marry to a class of individuals who were previously excluded. Though the Act may have the incidental effect of putting a handful of local officials in an uncomfortable position because of their religious beliefs, it has not compromised religious freedom. In fact, the Act already contains a conscience clause—it immunizes religious organizations from lawsuits and exempts them from state penalties if they refuse to marry gay couples.  Because, the thinking goes, those are religious organizations, whose very function is, well, religious.

But — and pay attention now — the Act does not allow civil servants to refuse to perform their duties; civil servants like Ms. Belforti are meant to act within the arena of the civic public. Further, in capital letters (you can’t miss it), the Act states: “NO APPLICATION FOR A MARRIAGE LICENSE SHAL BE DENIED ON THE GROUND THAT PARTIES ARE OF THE SAME, OR A DIFFERENT, SEX.”  In addition, the New York Human Rights Act prohibits discrimination against same-sex couples.

In July, the Alliance Defense Fund, a religious group “defending the right to hear and speak the Truth through strategy, training, funding, and direct litigation,” issued a memorandum to all New York State clerks outlining how they could avoid issuing marriage licenses to gay couples, and referred to two laws: Executive Law § 296 requires employers to accommodate an employee’s religious beliefs if it does not cause them “undue financial hardship,” or interfere with the employee’s performance of her “essential duties.” And Domestic Relations Law § 15(3) allows town clerks to delegate the issuance of marriage licenses to a deputy in the “absence or inability” to do it themselves, after seeking permission from their Town Councils. (The memo also included a sample letter for clerks to send to their Town Councils to seek permission to hire a deputy.) Ms. Belforti followed the Alliance’s advice and sent a letter to the Ledyard Town Council saying she would not issue marriage licenses and that it should appoint a deputy clerk to perform those duties. The Town Council appointed an interim deputy but statements made by some Council members suggest that they consider the assignment of deputy clerks for marriage licenses a band-aid, and hope for a permanent solution.

Ms. Belforti’s decision to stop issuing marriage licenses comes at a perilous time for her politically. Her fifth consecutive term as Ledyard’s town clerk is set to expire after next month’s election, and a serious challenger has emerged in what has become a closely watched campaign. Ed Easter, a local resident, is mounting a write-in campaign against Ms. Belforti because he says that Ms. Belorti’s “beliefs are not letting her do her job.” The issue took center stage at a recent forum between the candidates at Wells College and drew a packed crowd. Jim Wilcox, who runs the Wilcox General Store in Ledyard, received his marriage license from Ms. Belforti several years ago. He believes her decision to no longer issue marriage licenses has split the Republican-leaning community about “50-50.”

LASIS will continue to follow this story as it develops, so be sure to check back for updates as the campaign unfolds.

Update:   Ms. Belforti wins re-election.

Comments

10 Comments »

10 Responses

  1. Carrie says:

    Terrific article.

  2. Kim says:

    Ridiculous that the position of gay people who want to wed is taken into account but not the position of someone with sincere religious beliefs. PC bullcrap.

  3. Anonymous says:

    Freedom of speech—yes
    Religious beliefs—absolutely yes
    In reading this article, I agree with
    The writers.

    They presented the facts. Bottom line whether
    You like it or not. Its the law….

    Great article!

  4. BJohnM says:

    There are several issues here that need to be examined. First, Belforti is not being prevented, by the government, from the exercise of her religion. Nothing in this law is preventing her from attending whatever church or religious ceremony she wishes. She’s not prevented, in her private prayers, from praying to whatever God she chooses. I don’t even think they are requiring to work on her Sabbath.

    I think it is also clear, given the many laws and rules in the Bible, that Belforti’s objections are not really based on a profound religious belief. She has clearly issued marriage licenses in the past to divorce’s and others who would not, under Biblical law, qualify to marry. Heck, I don’t even think she does a virginity check. So this isn’t about religion, but pure animus against a category of people.

    As for the accommodation the town has apparently made by appointing an assistant? First, she is an elected official who took an oath to uphold the laws (not a particular religious belief). There is no reasonable accommodation for an official of the government who desires to ignore the law. If she objected, on religious grounds, to interracial marriage, would anyone consider it reasonable to appoint an assistant to accommodate that belief?

    But the town did make an effort. It appears they appointed someone for this one specific task, who apparently works only when a gay couple wants a license. So any other couple can walk any time during the posted office hours of the clerk’s office and get a license, but a gay couple must call in advance to schedule an appointment. This places an additional burden in a specific group of people who are otherwise legally qualified for a marriage license, and is therefore, clearly an unequal application of the law. If you accept the premise the town must make a reasonable accomodation (which I don’t), then that assistant must be available for the same hours Belforti is available. If the town can’t afford that, then it is not a reasonable accomodation.

    I’m not a lawyer, but this is not a particularly complex issue in my mind.

  5. BJohnM says:

    Oh, and lest we forget, there are certainly religious institutions and churches (with the number growing daily) who believe that gay and lesbian people are entitled, and ought to be encouraged, to marry. Gay people may elect to have their marriage conducted by a clergy person in a church. So the fact is, Belforti’s refusal to provide those people a license (given that she has decided to put marriage into a religious, rather than a civil, context), means that she is, and as such the State is, encroaching on the religious freedom of same-sex couples. And clearly the State cannot infringe on religious freedom, especially according to Belforti.

  6. Scott Rose says:

    I believe that Rosemarie Belforti is a thief. At the time the local property-owning lesbian couple arrived at the Ledyard Clerk’s office for a marriage license, they had already paid for the service Belforti refused them. She as good as stole their money. Or to put it another way, did the Ledyard Clerk’s office estimate the expenses to the couple (including their travel expenses to the office) and then send them a refund? Belforti is all about “Me, Me, Me, Look at Me, Me, Me” and doesn’t give a damn about the couple she insulted and refused and stole from. To top all, Belforti the gay-bashing witch appeared in a fund-raising video for the so-called National Organization for Marriage. In it, she claims that she is being “persecuted” for her religious beliefs. The brainwashed gay-bashing zombie for Jesus doesn’t know from persecution! In the video, she whines that she has done a good job for Ledyard for so long, and now is at risk of losing her job (as though anybody were guaranteed re-election in an elective office). Belforti is like a waitress refusing to serve black patrons, except that she works for the government not a private business. The proper thing for her to do, in any event, was to resign. Whether she personally touches the same sex marriage licenses, she’s still part of the organization that’s issuing them. The religious alibi for gay-bashing is hearsay BS. “God said so” — who cares? That hearsay is supposed to be a valid legal argument?

  7. NYLSBlog says:

    LASIS posted this article on three conservative Facebook pages that were in support of Rose Belforti’s opposition to same-sex marriage: The Courage Fund, New Yorkers for Constitutional Freedoms, and The New Yorker’s Family Research Foundation. Unfortunately, instead of engaging us in conversation, all three pages deleted our posts and blocked us from ever posting on their sites.

  8. Dave says:

    @BJohnM — your understanding of the situation is slightly off. The deputy clerk now has the responsibility for processing ALL marriage licenses — be they for gay, lesbian, or straight couples. So your assumption that straight couples coming in would get serviced immediately is incorrect. All couples are advised to make appointments prior to coming in — which is neither illegal nor uncommon. And the fact that the same procedure is being applied for ALL couples gets around the anti-discrimination elements of the Marriage Equality law. There is an added inconvenience and costs associated with the new procedure … a handful of couples per year will now have to make appointments a day or two in advance, and something like $100/year is involved in paying the deputy clerk. Ledyard voters will have to decide whether Belforti’s performance in other aspects of her job as Town Clerk outweigh those things.

    @Scott – your analogy is likewise a bit off. Belforti is not like a waitress refusing to serve black customers. She’s more like a waitress who refuses to bus tables for anybody, but is fine with doing all other aspects of her job for anyone.

  9. Rose (not Rose Belforti) says:

    @ Dave: she’s not like a waitress refusing to do some of her job. then it would be up the restaurant owner whether or not to keep her. She has a public job — and must service all the public. If she can’t, she should get out.

  10. […] year, LASIS did a story about this very issue. A government worker refused to marry same sex couples. Lots of protests. But she maintained that she was just following her religious beliefs. She was […]

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