As
previously reported, New York's recently-enacted same-sex marriage law protects from liability or penalty any clergy who refuse to officiate at a same-sex marriage, but does not contain any explicit conscience exception to shield municipal clerks who have religious objections to issuing marriage licences to same-sex couples. At least one town clerk
has already resigned over this. Now, however,
Constitutional Law Prof Blog reports that the Alliance Defense Fund last week sent a memo (
full text) to New York Municipal Clerks telling them that they are entitled to claim a religious accommodation to exempt them from issuing same-sex marriage licenses. The accommodation provisions appear in the New York Human Rights Law,
Executive Law Sec. 296(10)(a.). That section bars employers from requiring any employee
to violate or forego a sincerely held practice of his or her religion ... unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's ... sincerely held religious observance or practice without undue hardship on the conduct of the employer's business.
ADF's memo argues:
because New York law [Domestic Relations Law Sec. 15(3)] explicitly allows a municipality to delegate a clerk’s duties concerning marriage licenses to a deputy clerk or any other employee, a city or town should have no reason to deny a clerk’s request for an accommodation. It should be a simple matter to delegate those duties to others who do not object to issuing and signing marriage licenses for same-sex couples.
ADF's memo fails however to discuss two other provisions that may shed some question on its analysis.
Executive Law Sec. 296(1)(d.) provides that:
an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed.
In addition,
Domestic Relations Law Sec. 15(3) cited by ADF, appears to allow appointment of a deputy clerk or other employee by a city, but does not appear to provide for the same delegation by towns.
[Thanks to Ruthann Robson for the lead.]
