June 29, 2011
Same Sex Marriage in New York: Religious Exemptions Do Not Extend to Public Employees
Despite some possible ambiguities in the religious exemptions to the New York same-sex marriage law, which will be effective July 24, 2011, the clear language does not extend an exemption to public employees in the town clerks offices issuing marriage licenses.
The town clerk or public employee is an individual and obviously not:
A religious entity as defined under the education law or section two of the religious corporations law, or a corporation incorporated under the benevolent orders law or described in the benevolent orders law but formed under any other law of this state, or a not-for-profit corporation operated, supervised, or controlled by a religious corporation, or any employee thereof, being managed, directed, or supervised by or in conjunction with a religious corporation, benevolent order, or a not-for-profit corporation as described in this subdivision, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges for the solemnization or celebration of a marriage.
Moreover, the town clerk is not a "clergyman or minister as defined in section two of the religious corporations law."
Additionally, in New York, solemnization is distinct from licensing as a legal act; presumably the ministerial duties that accompany the licensing process are also not within the defenition of "celebration."
Thus, the town clerk who has stated her intent to refuse to issue a marriage license to a same-sex couple is certainly not within the statutory requirements. Some great reporting from "Left of the Hudson" discussing clerks seeking their own exemptions in New York and elsewhere.
As for a First Amendment right? Not likely.
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