As same-sex marriage became legal state-by-state through ballot initiative or court decisions, judicial ethics advisory committee, conduct commissions, or other judicial agencies in a few of those states began advising that judges were required to perform same-sex marriages if they performed opposite sex marriages. Formal, public opinions on such high-profile topics serve as an important resource for and service to judges, ensuring that the entire judiciary is on the same page and explaining to the public the reason for the rule. That guidance and assistance should proliferate following the U.S. Supreme Court’s decision in June that, for all states, “the Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
For example, after the decision, the Nebraska Judicial Ethics Committee advised that, “If a judge is willing to perform traditional marriages, his or her refusal to perform same-sex marriages would be a manifestation of bias or prejudice based on sexual orientation . . . , even if the judge states that the reason is based on sincerely held religious beliefs or upon a personal belief” and that, “because the U.S. Supreme Court has invalidated prohibitions against same-sex marriage, the refusal to perform such marriages while performing opposite-sex marriages would constitute a refusal to follow the law . . . ,” contrary to the code of judicial conduct. Nebraska Advisory Opinion 2015-1.
The list so far:
- The Arizona Judicial Ethics Advisory Committee advised that a judge cannot refuse to perform same-sex marriages if the judge is willing to perform opposite-sex marriages regardless whether the judge refers same-sex couples to another judicial officer, regardless where the judge performs the marriages, and regardless on what principle the judge has declined to perform the marriage. The committee also stated that a judge may choose not to conduct any marriages or to conduct marriages only for friends and relatives. Arizona Advisory Opinion 2015-1.
- The Nebraska Judicial Ethics Committee advised that a judge or clerk magistrate may not refuse to perform same-sex marriages notwithstanding a personal or sincerely held religious belief that marriage is between one man and one woman and even if the judge provides a referral to another judge willing to perform a same-sex marriage. The committee also stated that a judge or clerk magistrate may refuse to perform all marriages or choose to perform marriage ceremonies only for close friends and relatives but may not refuse to perform same-sex marriages for close friends or relatives. Nebraska Advisory Opinion 2015-1.
- The North Carolina Administrative Office of the Courts advised in a memo that a magistrate who conducts other marriages may not refuse to perform the ceremony for a same-sex couple for whom a marriage license has been issued by the register of deeds, although the legislature subsequently passed a statute allowing magistrates to recuse from performing all marriages.
- In its summer 2014 newsletter, the Pennsylvania Judicial Conduct Board stated that a judge who decides not to perform wedding ceremonies for same-sex couples must opt out of officiating at all wedding ceremonies.
- The Washington State Commission on Judicial Conduct admonished a judge who publicly stated that he would not perform same-sex marriages but continued to perform opposite-sex marriages. In re Tabor (October 4, 2013).
But see New York Advisory Opinion 2011-87 (whether a judge may adopt a policy that distinguishes between same-sex and opposite-sex couples was primarily a legal question, not a question of ethics).
Personal solicitation clause
In a 5-4 vote in April, the U.S. Supreme Court rejected a First Amendment challenge to the prohibition in the code of judicial conduct on judicial candidates personally soliciting campaign contributions. Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015). In 2002, the Court had held unconstitutional a clause that prohibited judicial candidates from announcing their views on disputed legal and political issues. Republican Party of Minnesota v. White, 536 U.S. 765 (2002). Dispelling any concern caused by its holding in White, the Court emphasized in Williams-Yulle:
Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.
Thus, the Court concluded that “this is . . . one of the rare cases in which a speech restriction withstands strict scrutiny.”
At the time of the decision, 10 or so states with judicial elections did not have the personal solicitation clause, at least 3 of those because of federal court decisions now invalid under Williams-Yulee. It is too soon to tell whether those states will revive the clause now that it has the Court’s official approval. That issue and others will be discussed in a free webinar on “Williams-Yulee v. Florida Bar and the future of the judicial canons” conducted by the National Center for State Courts on July 15 at 11:30 central time. Click this link to sign up: https://attendee.gotowebinar.com/register/6416083923189859842. The faculty will be Leslie W. Abramson, Professor of Law, Louis D. Brandeis School of Law, University of Louisville; Matthew Menendez, Counsel, Brennan Center for Justice Democracy Program, New York University School of Law; and Cynthia Gray, Director, Center for Judicial Ethics, National Center for State Courts.