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James E. Gregory

BY FEDERAL EXPRESS
September 9, 2011

Member of the Firm

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212.969.3023

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jgregory@proskauer. corn www. proskauer. corn

Mr. Mark Jordan Ledyard Town Supervisor Ledyard Town Hall 1099 Poplar Ridge Road Aurora, NY 13026

Ms. Rose Marie Belforti Ledyard Town Clerk

Ledyard Town Hall 1099 Poplar Ridge Road Aurora, NY 13026

Dear Mr. Jordan and Ms. Belforti:

We represent Katie Carmichael and Deirdre DiBiaggio, a same-sex couple who, on August 30, 2011, were improperly denied a marriage license by Ledyard Town Clerk Rose Marie Belforti.
As you already know, our clients visited the Ledyard Town Hall on August 30 and applied for a marriage license, in person, to Ms. Belforti. Although Mmes. Carmichael and DeBiaggio satisfied all necessary requirements to obtain such a license, Ms. Belforti informed them that she had been directed not to issue any marriage licenses and that they would have to make an appointment to return to the Ledyard Town Hall on another day when a subordinate official would be able to fulfill their request. Ms. Belforti refused to issue the license herself.

It is our understanding that Ms. Belforti previously indicated her unwillingness to issue marriage licenses to same-sex couples on account of her religious beliefs. As a result, we understand that Ms. Belforti is no longer issuing any marriage licenses an essential duty of her elected officeat the town's direction or, at a minimum, with the town's acquiescence. The actions of both Ms. Belforti and the town are in violation of New York law.

On July 13, 2011, the New York State Department of Health issued an informational memorandum to all New York town and city clerks regarding the recent amendments to the Domestic Relations Law, which are also known as the Marriage Equality Act. ' The memorandum summarized the changes to the Domestic Relations Law caused by the amendments and made clear that those changes would take effect on July 24, 2011. Among the changes listed is the following: "No application for a marriage license shall be denied on the ground that the parties are of the same or a different sex.

"

'

A copy of that memorandum

is enclosed for your information.

Boca Raton

Boston

Chicago

Hong Kong

London

Los Angeles

New Orleans

New York

Newark

Paris

Sao Paulo

Washington,

D. C.

Proskauer
Mr. Mark Jordan Ms. Rose Marie Belforti September 9, 2011 Page 2

In addition to summarizing the change in the law, the memorandum also provided guidance to clerks to help plan for the implementation of the Marriage Equality Act. The memorandum states: "Under New York State Law the town or city clerk must provide a license to an applicant who meets all marriage requirements for New York State. It is a misdemeanor violation if the clerk refuses to do so for any reason. Speaking on the same issue, Governor Andrew Cuomo himself has said of clerks in Ms. Belforti's position: "When you enforce the laws of the state, you don't get to pick and choose the laws.

"

"

The directive to clerks such as Ms. Belforti could not be more clear: they must provide a marriage license to ~an eligible applicant. Ms. Belforti did not, and cannot, cite any reason why Mmes. Carmichael and DiBiaggio were ineligible to receive a marriage license. The couple met all the marriage requirements for New York State and should have left Ledyard Town Hall that day with the license to which they legally were entitled.
has a personal objection to the law, and as a result is unable to perform her essential duties as a public official, she should resign immediately so that her position can be assumed by an individual who is able to perform fully the duties of the Ledyard Town Clerk's office.

If Ms. Belforti

It is our understanding that this matter will be discussed as part of the agenda of the Town Board's next regularly scheduled meeting this Monday, September 12. At that meeting, we fully expect the Town Board to direct Ms. Belforti to either perform her essential duties, including the issuance of marriage licenses to eligible applicants whether same sex or opposite sex, or to resign immediately.
In the event such decisive action is not taken, we will be forced to take further legal action on behalf of Mmes. Carmichael and DiBiaggio in order fully to protect and enforce their rights under New York law.

We request that you distribute a copy of this letter to each of the Town Board members present at the September 12 meeting and that the contents be read into the record of that meeting.

"A public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit:. . . 2. He knowingly refrains trom performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office. " N. Y. Penal Law tI 195.00 (Consol. 2011). Official misconduct is a Class A misdemeanor. Id.
Furthermore, N. Y. Executive Law ) 296(10)(a), which provides an exemption for specific types of religious observances and practices, is inapplicable to this situation and does not provide a legal basis for Ms. Belforti to be relieved of her duties. The plain language of that section, its legislative history, and associated case law each make clear that this law was intended only to ensure that employers accommodate the observance of holy days or religious practices such as the wearing of certain head dresses. The section provides no basis under which an elected official can sidestep her duties on account of her personal moral objections to the law.

Proska Uer)&
Mr. Mark Jordan Ms. Rose Marie Belforti September 9, 2011 Page 3

This letter is without waiver of or prejudice to any of our clients' rights and remedies under New York law or otherwise and all such rights and remedies are hereby expressly preserved.
erely yours,

ames E. Gregory Enclosure

cc: Ms. Katie Carmichael

and Ms. Deirdre DiBiaggio

NEW YORK
Nirav |r. Shah, Corntnlsshner

M.D., M. P.H.

HEAI.TH
Clerk informational
Memorandum

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New York State Town and City Clerks

From:

Office
July

of Vital Records

13, 2011

Series'.

2011-03
Arnendmertt

Topic;

to Domestic Relations Law - "The Marriage Equality Act",

An Act to amend the dotnestic relations law, in relation to the ability to marry.
This memo provides inforniation and guidance on the recent amendment to the Domestic Relations Law entitled "The Marriage Equality Act" (see attached). This Act was signed into law on tune 24, 2011 and shall take effect on July 24, 2011 (the 30th calendar day aQer it was signed), Please take the time to review these important changes to New York State Domestic Relations Law as it'relates to marriage.

In summary, the Marriage Equality Act amends New York's Domestic Relations Law in the following ways.
~

A rnatriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex, No goverrunent treatment or legal status, effect, right, benefit, privilegeprotection or responsibility relating to marriage shall differ based on the parties to the marriage being of the same sex or a different sex, AH relevant gender-specie language set forth m or referenced by New York law shall bs construed in a gender-neuhal manner. No application for a marriage license shall be denied on the ground that the parties are of the same or a different sex. No religious entity, benevolent organization or rtot-for-profit corporation that is operttted, supervised oz controlled by a religious entity or its employees can bc required to perform marriage ceremonies or provide its facilities for marriage ceremonies, consistent vvith its religious principles. In addition, religious entities will not be subject to any legal action for refusing marriage ceremonies,

Marriage forms, documents and instructions have been revised to implement the requirements. of the Act.

HIALTH. NY. GQV

faeobcett. camlNYscoH
tw it ter rom/HealthHlCov

To hei pp lan for th e jmplemaniation

of the Act, please review the following guidance;

The Act shall take effect at midnight on July 24, 2011, at which time a mamage hcense may be issued to a same sex couple upon satjsfactory proof that no legal impediment to the right of eaoh applicant to marry exists,

2. Altho . Although the znarriage license is issued nnrnediatejy upon application, current law mandates that the marriage ceremony cannot take place witltjn 24 hours from the exact tjnie that tlie license was issued. The requireinents for 'waiving the waiting period have not changed nor has the process under section l 3-8 of Domestic Relations Law to obtain a waiver of the 24-hour waiting period.

3.

As is already the law, a second or subsequent ceremony does not require s 24-hour waiting period when a couple can prove that they are already married to each other. This includes valid marriages between same-sex couples that have legally occurred in other Jurisdictions. Notably, in addition to New York, the fallowing states sHow sarnesex couples to marry: j) Connecticut, 2}Iowa; 3}Massachusetts; 4) New Hlnpshjre, ' 5} Veanont; and 6}Dissect of Columbia. Purther, saine-sex couples can many in several countries globally.

4, There will be one form for aji marriage licenses issued after July 23, 2011.
5, New forjns have been printed and mailed to town and city clerks, Clerks should receive the new forms by eai'ly next week. Clerks may provide samples of the forms to their vendors. Vendors may need to adjust their software programs that collect information to be printed on the marriage forms supplied by the Department of Health. The town and city clmks must use the new forms a5er the Act takes effect on My 24. Old forms must be properly destroyed,

6. Under New Y ork State Law

the town or city clerk must provide a license to an applicant violation who meets ail znarriage requirements for New York State. It is a misdemeanor if the clerk refuses to do so for any reason.

and city clerks The Department of Health wi l 1 be conducting five interactive webuiars with town a&davit/license, and to answer on Friday, July 15, to review the law, the new marriage email them ta questions. If you have any questions or concerns prior to the webinar, please clerkshealth, state. ny, us.

Thank you for your cooperation in implementing

this new Iaw.

Attachment