NY Town Clerk Quits Rather Than Serve Gay Families

by Kilian Melloy

EDGE Staff Reporter

Wednesday July 13, 2011

Faced with the choice of either abiding by professional standards and doing the job for which she was paid, or adhering to the stipulations of an anti-gay faith tradition, a town clerk in New York reportedly chose to resign -- an arguably laudable decision, given that it resolves the question of professionalism while preserving the individual's conscience.

But anti-gay groups are holding the resignation up as proof that legal equality for same-sex families is damaging to religious freedoms, even when a marriage equality bill is as carefully crafted to respect anti-gay religious traditions as the one passed recently by New York lawmakers.

New York tabloid newspaper the Daily News reported on July 12 that the clerk Laura Fortusky, had been the town clerk for Barker, New York, which is located in the western part of the state, in Niagara County. The town is minuscule, with fewer than 600 residents as of the 2000 census, a Wikipedia entry said.

After marriage equality was approved by the state assembly and senate and then signed into law by Gov. Andrew Cuomo, at least one district attorney, Nassau County's Kathleen Rice, reminded clerks in her jurisdiction that refusal of service to members of the public on the basis of sexual orientation could be met with criminal charges.

But the law of the land was not the foremost consideration for Fortusky, a statement by the clerk indicated.

"I believe that there is a higher law than the law of the land. It is the law of God in the Bible," Fortusky wrote in her letter of resignation. "In Acts 5:29, it states, 'We ought to obey God rather than men.' "

The letter, which was posted at the website of anti-gay group New Yorkers for Constitutional Freedoms, noted that Fortusky had "been in contact with Jason McGuire from New Yorkers for Constitutional Freedoms," as well as with "our Town Attorney, Richard Lewis, and a Constitutional Lawyer regarding the Marriage Equality Act that was passed June 24, 2011." What counsel Fortusky might have received from McGuire or others was not specified in the letter.

However, the resignation letter followed the argument used by New Yorkers for Constitutional Freedoms as though scripted.

"There was no protection provided in the legislation for Town Clerks who are unable to sign these marriage licenses due to personal religious convictions, even though our US Constitution supports freedom of religion," Fortusky wrote.

Text at the anti-gay group's site reads similarly.

"For licensed Christian counselors, not directly affiliated with a church, a day may come when the state may refuse licensure to those who practice reparative or ex-gay therapy," the site's text read.

"Wedding photographers and caterers will similarly find no protection. Refuse to photograph or serve a gay nuptial and people with strong convictions concerning the authentic definition of marriage will find themselves vulnerable to a lawsuit," suggested the text.

"Soon town clerks and justices will also be required to issue gay 'marriage' licenses."

The site's text followed the anti-gay convention of putting the word marriage in quotation marks when applied to same-sex couples, even though under law, at the state level at least, marriages entered into by gay and lesbian families as of July 24 will be legally on par with those of heterosexual couples, meaning that they will be legally binding and not theoretical.

The resignation letter also incorporated a number of other familiar talking points from anti-gay groups.

"The Bible clearly teaches that God created marriage between male and female as a divine gift that preserves families and cultures," the letter said. "Since I love and follow Him, I cannot put my signature on something that is against God."

The letter also included Biblical passages.

"I would be compromising my moral conscience if I participated in the licensing procedure. Therefore, I will be resigning as of July 21. I wanted you to know my position as I understand the marriage law goes into effect on July 24," the letter added.

Another New York clerk, Barbara MacEwen, serves the city of Volney, in Oswego County, located in the northwestern part of the state.

"I'm not objecting to having it done here in the office, but I'm objecting to being forced to sign my name to something that is against my morals and my God," MacEwen told the press, according to a June 28 article in local newspaper the Post Standard.

"I don't want to have to leave my position, and I still feel strongly about not wanting to sign, but I'm not sure if there's another way around it," added MacEwen.

For others, however, the idea of issuing marriage licenses to legally entitled gay and lesbian families did not precipitate a crisis of conscience. Rather, they saw carrying out the duties inherent in their jobs as a matter of professionalism, the article noted.

"If the law says I issue them, then I issue them," New Haven clerk said Debra Allen told the media. "The law does not allow us to pick and choose who we're going to issue licenses to."

Though New York's marriage equality law guarantees that churches and religiously affiliated groups will not be punished if they decline to allow the celebration of same-sex weddings, the same exemptions do not extend to public employees.

"The religious exemptions in the Marriage Equality Act are inapplicable to town and city clerks serving in their license-granting roles, and a public official's intentional refusal to issue marriage licenses to qualified same-sex couples may constitute Official Misconduct, a Class A misdemeanor defined in section 195.00 of the New York State Penal Law," Rice's letter to Nassau County clerks warned.

"The New York State Department of Health will promulgate information to assist you with issuing same-sex marriage licenses before the Marriage Equality Act is effective on July 24, 2011," the letter added. "I am confident that public officials in Nassau County will comply with the law and my office is prepared to offer any assistance necessary to ensure that same-sex couples have access to marriage licenses without issue."

Rice has a gay brother, a fact that she emphasized to gay voters when running for the office of district attorney.

The situation in New York is a virtual re-enactment of how some clerks in Iowa responded when marriage equality came to that state. An April 17, 2009, posting at blog I Had No Right recounted that the Des Moines Register had reported on clerks there contemplating defying the law and refusing to issue marriage licenses to same-sex couples.

"Victoria Hutton of the Iowa Department of Public Health informed recorders that the ruling has the force of law statewide," the Des Moines Register reported at the time.

"All county recorders in the state of Iowa are required to comply with the Varnum decision," Hutton informed the clerks, "and to issue marriage licenses to same sex couples in the same manner as licenses issued to opposite gender applicants."

In 2008, at the opening of the six-month window between the commencement of marriage equality in California and the passage of Proposition 8 -- which snatched that right from gay and lesbian families once more -- there was some question as to whether clerks in that state should be allowed to opt out of issuing licenses to same-sex couples.

Gavin Newsom, at the time the mayor of San Francisco and now the state's lieutenant governor, told the media, "This is a civil marriage that civil servants have a responsibility to provide. So for civil servants on religious grounds to start passing judgments, they are breaking the core tenet of what civil service is all about."

Lambda Legal attorney Jenny Pizer told EDGE in a June 19, 2008, article, "The employment rules require accommodation of religious beliefs--and that's an important principal.

"But the duty to accommodate does not go so far as to authorize public employees not to do their jobs or do their jobs in a discriminatory manner," Pizer added.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.