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This memorandum from the Alliance Defennamed recipients only. Because ADF is a legmay include metadata, that is confidential, plaw. If you have received this memorandudelivering this memorandum to a namedreproduction of this memorandum or its coimmediately notify the sender and permaneCOMMUNICATION/ATTORNEY WORK Pcommunication was not written and is notRevenue Code or (ii) promoting, marketing, o
M
TO: New York Mun
FROM: Alliance Defen
DATE: July 15, 2011
RE: Your Right to
Religious Belie
Sex Couples.
Introduction
In light of New York’s r
couples, many municipal cle
with a serious dilemma: eith
license to same-sex couples
some public officials, includi
But that view is not necthat the narrow religious ex
“marriage” bill do not contai
disturbing that public officia
held beliefs even though mil
between a man and a woma
sincerely held religious belie
to accommodate those belief
And because New York law
duties concerning marriage
employee, a city or town sho
accommodation. It should bedo not object to issuing and
se Fund and any accompanying documents or embedded messaal entity engaged in the practice of law, this communication contrivileged, attorney work product, or otherwise protected from disc
in error, are not a named recipient, or are not the employee oecipient, be advised that any review, disclosure, use, dissemintents is strictly prohibited. If you have received this memorntly destroy the content. PRIVILEGED AND CONFIDENTIALRODUCT. IRS CIRCULAR 230 DISCLOSURE: Any tax adintended to be used for the purpose of (i) avoiding penalties irecommending any transaction or matter addressed herein.
M O R A N D U M
icipal Clerks Responsible for Issuing Mar
e Fund
equest An Accommodation of Your Since
s Concerning Issuance of Marriage Licen
cent redefinition of marriage to include s
ks and other employees believe that the
er violate their consciences by issuing a
r resign. Sadly, that view has been perpe
ng Governor Cuomo.
ssarily correct. It is true—and very disamptions enacted by the Legislature in th
n any individual conscience protections.
ls have so blithely dismissed New Yorker
ions of New Yorkers believe that marria
. But New York law does protect an emp
fs. New York’s Human Rights Law requi
, unless it places an undue hardship on t
xplicitly allows a municipality to delegat
icenses to a deputy clerk or any other mu
uld have no reason to deny a clerk’s requ
a simple matter to delegate those dutiesigning marriage licenses for same-sex co
ges is intended for theins information, which
losure under applicabler agent responsible foration, distribution, orndum in error, please ATTORNEY-CLIENTice contained in thisposed by the Internal
riage Licenses
ely Held
ses to Same-
me-sex
are faced
arriage
tuated by
pointing— e same-sex
ndeed, it is
s’ sincerely
e is only
oyee’s
res employers
he employer.
e a clerk’s
nicipal
st for an
to others whoples.
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Thus, as explained belo
belief that prevents them fr
the right to request an acco
New York Law Requires
Religious Beliefs
New York law requires
observance or practice, “unl
demonstrates that it is unab
prospective employee’s since
undue hardship.” Executive
expression of the high value
[religious diversity] and in p
choice. The statute “ensuresand gainful employment, un
accommodation impossible.”
of Human Rights, 89 N.Y.2d
As news reports indicat
violate the sincerely held rel
fundamental change in New
surprise, and it would be un
continued employment and
But municipalities shou
beliefs, without forcing thethe clerk’s duties in issuing
other municipal employee.
Notwithstanding any
city with the approval
authorized to designa
deputy clerk, if any, a
receive applications f
marriage licenses in t
act, and said deputy
with all the powers anDomestic Relations Law § 1
municipality’s governing bo
his or her religious beliefs b
employee issue marriage lic
provision is very broad and
requesting an accommodatio
including signing the license
2
, municipal clerks who have a sincerely
m issuing marriage licenses to same-sex
modation from their governing bodies.
mployers to Accommodate Sincerel
n employer to accommodate an employee
ss, after engaging in a bona fide effort, t
le to reasonably accommodate the emplo
rely held religious observance or practice
Law § 296(10)(a). This law “represents a
that our State places on supporting and
rohibiting invidious discrimination based
that no citizen will be required to chooseless the pragmatic realities of the work p
ew York City Transit Auth. v. State, Ex
79, 88 (N.Y. 1996).
, issuing marriage licenses to same-sex c
igious beliefs of many clerks. The abrupt
York’s definition of marriage caught ma
air for a municipality to force a clerk to c
is or her religious belief.
d be able to easily accommodate clerks’ r
into that dilemma, since New York lawarriage licenses to be delegated to a dep
other provisions of this article, the clerk
of the governing body of such city is here
e, in writing filed in the city clerk’s office
nd/or other city employees in such office t
r, examine applications, investigate and
he absence or inability of the clerk of said
nd/or employees so designated are hereb
d duties of said city clerk relative thereto.(3) (emphasis added). In light of this pro
y would have little basis to refuse a clerk
accommodated by having a deputy clerk
nses to same-sex couples. Moreover, beca
llows all of a clerk’s duties to be delegate
n should be entirely removed from the pr
s.
eld religious
couples have
held
’s religious
e employer
ee’s or
. . . without
egislative
rotecting
on religious
between pietyace make
c. Dept., Div.
uples would
but
y clerks by
hoose between
ligious
ermits all of uty clerk or
f any
by
, a
o
ssue
city to
vested
ision, a
’s request that
or other city
use the
d, a clerk
ocess,
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What Clerks Should Do T
Any clerk who wishes to
religious beliefs concerning ipromptly make a formal req
accommodation. Your reque
Executive Law § 296, and th
allowing all of a clerk’s duti
issuing marriage licenses to
religious belief that marriag
should say that an acceptabl
or other city employee all of
to same-sex couples.
You should also ask fora municipality refuses your
Defense Fund, and we will r
pursue an accommodation t
other questions, please cont
Here is a sample let
body of your municipality:
Dear Mayor and City Counc
As clerk of this munic
licenses within this jurisdic
same-sex couples to obtain
in the definition of marriage
because I have a sincere an
between a man and a woma
to change the law. But if I
same-sex couple, it would
belief and observance.
3
o Request An Accommodation
request an accommodation of their since
ssuing marriage licenses to same-sex couest to their municipality’s governing bod
t does not need to be long, but you shoul
e provision under Domestic Relations La
s to be delegated. You should also clearly
same-sex couples would violate your sinc
e is only a union of a man and a woman.
e accommodation would be to delegate to
the duties related to the issuance of marr
rompt action on your request, as is requiequest, you should immediately contact
eview your situation and advise you on y
rough litigation at no charge to you. If y
ct us right away.
ter requesting an accommodation from
l:
ipality, my office is responsible for iss
tion. On July 24, 2011, New York will
tate marriage licenses, which is a funda
in this state. This change puts me in a s
d deeply-held religious belief that marri
. I recognize, of course, that I do not hav
ere forced to issue and/or sign a marria
iolate my conscience and my sincerely
ely held
ples shouldy for an
cite
§ 15(3)
explain that
rely held
nd you
a deputy clerk
iage licenses
red by law. If he Alliance
ur right to
u have any
the governing
uing marriage
begin allowing
mental change
rious dilemma
age is a union
e the authority
e license for a
held religious
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Therefore, I am reque
observance regarding the is
Executive Law § 296(10)(
accommodate my sincerely
would impose an undue har
Exec. Dept., Div. of Huma
Executive Law § 296(10) “en
piety and gainful employm
make accommodation impos
The accommodation tha
law and would therefore not
states:
Notwithstanding any
city with the approval
authorized to designa
deputy clerk, if any, a
receive applications f
marriage licenses in t
act, and said deputy a
with all the powers a
I am therefore reques
or other city employee to iss
for same-sex couples. I am a
4
ting that you accommodate my religi
suance of marriage licenses to same-sex
a). As you are aware, this law requ
held religious observance, unless the
ship. Id.; see also ew York City Transit
n Rights, 89 N.Y.2d 79, 88 (N.Y. 1996
sures that no citizen will be required to
ent, unless the pragmatic realities of t
sible.”)
t I am requesting is already provided fo
cause undue hardship. Domestic Relatio
other provisions of this article, the clerk
of the governing body of such city is here
e, in writing filed in the city clerk’s office
nd/or other city employees in such office t
r, examine applications, investigate and
he absence or inability of the clerk of said
nd/or employees so designated are hereb
d duties of said city clerk relative theret
ing that you authorize me to designate a
e and sign marriage licenses within this
so requesting prompt action on this requ
us belief and
couples under
ires that you
ccommodation
Auth. v. State,
) (noting that
hoose between
he work place
r in New York
ns Law § 15(3)
f any
by
, a
o
ssue
city to
vested
.
deputy clerk
jurisdiction
est, as
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required by Executive Law §
July 24, 2011.
Thank you very much
religious belief. I am confide
my office or the rights of an
as provided by law.
5
296(10), given the impending change in
in advance for accommodating my sincer
nt that this accommodation will not impe
one within the jurisdiction to obtain a m
Sincerely,
[Name]
he law on
ely held
de the work of
rriage license
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