New York DA to Anti-Gay Clerks: Marriage Equality is the Law

by Kilian Melloy

EDGE Staff Reporter

Tuesday July 12, 2011

The DA of Nassau County, New York, has issued a stern warning to clerks considering denying same-sex families marriage licenses. In essence, a letter from AD Kathleen M. Rice tells the county's clerks to do their jobs -- or face the prospect of criminal charges.

"You might remember that Barbara MacEwen, town clerk of Volney, in Oswego County, said she believes same-sex marriage is morally wrong and doesn't want her name on a marriage license issued to a same-sex couple," a July 10 LGBTQ Nation article read.

"But in Nassau County, District Attorney Kathleen Rice is making it clear there will be none of that nonsense in her jurisdiction."

"Recently, a local clerk in upstate New York made headlines when she said she would not issue marriage licenses to same-sex couples," Rice's letter, dated July 8, read. "The Marriage Equality Act provides that an application for a marriage license cannot be denied on the grounds that the applicant parties are of the same sex and the law affords no discretion to public officials charged with granting marriage licenses. Therefore, any such refusal may be subject to criminal prosecution."

The clerk referred to in the letter, 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 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 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.