The statement at issue:
"New York law protects my right to hold both my job and my beliefs. I'm not supposed to have to leave my beliefs at the door of my government job."- Statement by Rose Marie Belforti, the elected town clerk in Ledyard, N.Y., near Lake Cayuga, discussing her decision to refuse -- for religious reasons -- to issue marriage licenses for same-sex couples seeking to marry under New York's new law allowing such marriages (quoted in The New York Times, September 28). The duty has been delegated to an assistant while the local government considers what, if any, action to take. Dueling lawsuits are looming.
We checked the Constitution, and...
The town clerk's refusal has a strong echo in the history of religious freedom in America, perhaps best reflected in a 1961 Supreme Court decision (Torcaso v. Watkins), striking down a Maryland requirement that a person profess a belief in God in order to get a public job. Clerk Belforti was not required to do any such thing, but she appears to be equating her right to keep both her job and her religious views on the same principle that led to the Court's ruling in the Torcaso case.
Her refusal, however, may also run counter to a separate constitutional principle: that government may impose obligations on public officials and public employees in performing their official duties without violating their individual rights -- if the obligations are neutral and reasonable.
This second principle was stated in one of the most famous epigrams in American legal literature: "One may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." That statement, sometimes interpreted too broadly since then, was made by Oliver Wendell Holmes, Jr., in 1892, in the case of McAuliffe v. Mayor of New Bedford, when Holmes was a member of the Massachusetts Supreme Judicial Court before he became a U.S. Supreme Court Justice. The clear implication, of course, is that a person is entitled to their rights, but that does not give them a separate right to exercise those rights as they carry out a public job.
This can be a complex issue. While the Constitution's Article VI provides that there can be no "religious test" as a condition for holding public office, the Supreme Court has refused to say whether that applies to state and local officials, or only to those who hold federal office. The Torcaso decision was based on a concept of religious freedom, under the Fourteenth Amendment.
A federal civil rights law, and similar laws in a number of states -- including New York -- require employers to take steps to accommodate the religious views and practices of their employees. Clerk Belforti, indeed, is relying in part upon that New York civil rights law.
In a well-known Supreme Court decision in 1967 (Garrity v. New Jersey), the Court majority said that Justice Holmes' famous statement went too far. The Court was confronted, it said, with a situation in which state policemen were given a choice "either to forfeit their jobs or to incriminate themselves" in violation of the Fifth Amendment during an official investigation of wrongdoing. The 5-4 decision ruled that New Jersey could not coerce its officers in that way.
It thus appears to be a principle of constitutional freedom that an individual, even in public employment, cannot be coerced into surrendering their rights. But, in other cases, the Court has said that government agencies can put limits on their employees' rights, such as their rights to free speech, that it could not impose on citizens outside government offices.
The clerk in Ledyard, N.Y., and others who hold the same position in the state, were told in July by the New York State Department of Health that the new state Marriage Equality Act means that a "town or city clerk must provide a license to an applicant who meets all marriage requirements for New York State" and that "it is a misdemeanor violation if the clerk refuses to do so for any reason."
A gay couple, Katie Carmichael and Deirdre DiBiaggio, went to Clerk Belforti on August 30 seeking a marriage license. They were refused, and the clerk told them they would have to make an appointment on another day, when an assistant could issue a license to them. They refused, and retained lawyers. The attorneys have since begun pressuring town officials, with a threat of a lawsuit, if Belforti does not herself issue licenses. If the clerk has personal objections, she should resign, the attorneys wrote to the town this month.
Ms. Belforti, now aided by lawyers with the conservative advocacy group, Alliance Defense Fund, is contemplating a lawsuit of her own.Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work.