The Alliance Defense Fund and Special Rights

Rob Tisinai

July 21st, 2011

The Alliance Defense Fund (ADF) is an anti-gay legal group disguised as protectors religious liberty. They believe government employees should be able to pick and choose which laws to follow based on their religious beliefs (as long as those beliefs are Christian).

Naturally, they think it’s perfectly reasonable for Town Clerks in New York to hold on to their jobs while refusing  marriage licenses to qualified, law-abiding citizens (as long as those citizens are gay).

The ADF even offers up a legal rationale for this, based on New York state law.

Thus, as explained below, municipal clerks who have a sincerely held belief that prevents them from issuing marriage licenses to same-sex couples have the right to request an accommodation from their governing bodies.

New York law requires an employer to accommodate an employee’s religious observance or practice, “unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee’s or prospective employee’s sincerely held religious observance or practice…without undue hardship.” Executive Law § 296(10)(a). This law “represents a legislative expression of the high value that our State places on supporting and protecting [religious diversity] and in prohibiting invidious discrimination based on religious choice The statute ensures that no citizen will be required to choose between piety and gainful employment, unless the pragmatic realities of the work place accommodation impossible.” New York City Transit Auth. v. State, Exec. Dept., Div. of Human Rights , 89 N.Y.2d 79, 88 (N.Y. 1996).

Well, the law’s the law. Except…is that the law? Or a reasonable interpretation of it?

The law is about “religious observance or practice.” What does that mean? Check the law’s wording, which refers to:

…a sincerely held practice of his or her religion, including but not limited to the observance of any particular day or days or any portion thereof as a sabbath or other holy day in accordance with the requirements of his or her religion.

This seems to be about not making people work when their Sabbath says they should rest. About letting people leave work to attend religious services. It’s probably also about letting people pray at work, as Muslims need to do at regular intervals, and letting people wear religious clothing like a burqa or yarmulke (that’s the “including but not limited” portion).

Am I being too narrow?  Again, check the law. It goes into detail, and those details are all about people taking time off for religious observance.

But wait! you cry, ADF didn’t just cite the law, they cited a court case, too! True enough. Let’s check that case — that one case, presumably the best case they could find — and discover it’s about…

…the right of a Jehovah’s Witness Seventh Day Adventist not to work on her Sabbath Day.

Yeah. The ADF isn’t bolstering their plea for a broad, broad, broooooad application of the law. I’m not an attorney, so I’ll appeal to the lawyers out there: Has any court interpreted this statute as a right to discriminate?

Let me be more specific:

Has any court interpreted “religious accommodation” law in a way that permits a public employee to complete a task for one group of legally-qualified, law-abiding citizens while refusing to do so for another such group?

If so I’d love to see it. Until then, I have to ask once again, who’s asking for special rights here?

Priya Lynn

July 21st, 2011

Some on here have said they don’t have a problem with a clerk refusing to process their same sex marriage license as another clerk without such objections will do it instead. That big city mentality has a big hole in its logic – there isn’t always going to be someone available to take over that job. There may be someone available to do it in most cases, but sooner or later, or in a small town or rural area there won’t be anyone available to do the job other than the “religious” objector. Then the same sex couple is going to be much more put upon, then it is going to be a problem.

Tony

July 21st, 2011

Do they actually think it’s reasonable for me to go from clerk to clerk until I find one that’s gay-friendly? What if you’re in a city that doesn’t have one? Religious beliefs don’t trump everything else. I think that’s the real underlying issue here. People think that if they say “it’s what I believe” that it’s a get out of jail free card to say and do whatever you want.

Timothy (TRiG)

July 21st, 2011

As an ex-Witness, I was intregued by the mention of a JW “Sabbath Day”, so I checked the link. It says, Mary Myers is a practicing Seventh Day Adventist. Now, the Witnesses did, in a sense, grow out of the Seventh Day Adventist movement. The histories of the religions are to a certain extent intertwined, but modern Witnesses and Adventists have little to do with each other. There are major differences between the religions, in both belief and practice.

I suspect that Mary Myers would not be glad to be called one of Jehovah’s Witnesses.

TRiG.

Rob Tisinai

July 21st, 2011

Thanks, Trig! I’ll make the correction.

Gus

July 21st, 2011

Tony: I can imagine a county where you could not find one clerk out of many who would file the paperwork. To this day, when we visit my partner’s family a few counties away you here the refrain: “That’s not how we do it here,” regarding many state EPA and other laws. Marriage would be a problem in that more Christianist county.

Gus

July 21st, 2011

hear

MattNYC

July 21st, 2011

A Clerk’s job is to apply the law–not interpret it. If they cannot do something that is a job requirement–issuing licenses–then they should be replaced. A vegan Clerk must issue a hunting license to a legally qualified person. A Muslim Clerk must issue a liquor license to a legally qualified business/individual. A Catholic Clerk must issue a marriage license to a 5-time-divorced (both) couple with or without proof that the Church has annulled their former marriages. Need I go on?

If any of these persons–under Oath to the State Constitution to uphold the laws of the State and to act on behalf of the State–cannot perform a part of their job, then they need to be permanently relieved of that job and replaced with someone who won’t be playing “armchair Supreme Court Justice.”

B John

July 21st, 2011

Read the passage of the law he cites. This is about accomodating religious observances. It means trying to make reasonable accomodation for Muslims to be able to pray at their prescribed times (if possible). For Christians to observe their Sabbath, or have Christmas Day off.

And it refers to “reasonable accomodation.” You can’t give the entire Police and Fire Departments Christmas Day off, so some of those Christians have to work that day…that’s not unreasonable. It’s also not unreasonable to expect that when I walk into a government office, I will receive the same services and considerations as anyone else. It is not a reasonable accomodation for the Clerks to be able to pick and choose who they will serve.

If I believe the Bible is against inter-racial marriages, as a town clerk, should I be accomodated and allowed to not issue licenses to inter-racial couples? We know the answer to that, and so does the Alliance Defense fund, but if they say it enough, and have enough people saying it, it becomes the truth.

Adam

July 21st, 2011

The clerks need to realize no one really cares if they personally approve or disapprove of a couple’s relationship and pending marriage. Their signature does not indicate their personal approval; it just signifies that all legal requirements set forth by the State have been met.

Using ADF’s “logic”, a clerk in the DMV office could refuse to issue a car license if she suspected the vehicle was owned by a same-sex couple. Using their “logic”, NY could easily wind up with segregated “Separate, but Equal” Town Clerks’ offices…

And in those ‘good ole days’, Equal never existed….

John

July 22nd, 2011

Is this law speaking to private employers or/and public employers, ie the state and municipalities of New York?

Jeff

July 22nd, 2011

As a California attorney, I am not aware of any authority that would allow a “reasonable accomodation” statute to be used to discriminate. Typically, the reasonable accomodation statutes are used to ensure that employers take reasonable steps to allow employees to practice their religious beliefs. It is unlikely, however, that a reasonable accomodation statute would be interpreted to allow the employees with a particular religious belief to discriminate against another group under the guise of “reasonable accomodation”.

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