A Guilty Conscience?
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.