Analyzing the same-sex marriage advice

So far, judicial ethics committees or conduct commissions in 7 states have issued opinions, orders, or articles advising that a judge cannot refuse to perform same-sex marriages if the judge performs opposite-sex marriages even if the refusal is based on sincerely held religious or personal beliefs.  These opinions were prompted by voter-passed referendum approving same-sex marriage, then by federal district court decisions overturning state bans on same-sex marriage, and finally by the U.S. Supreme Court’s June decision in Obergefell v. Hodges that “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.”  In alphabetical order:

Cf., New York Advisory Opinion 11-87 (whether a judge may adopt a policy that distinguishes between same-sex and opposite-sex couples is primarily a legal question, not a question of ethics).

These opinions treat performing a marriage ceremony as a judicial duty (Arizona, Ohio) or an extra-judicial activity (Nebraska, Washington) or as either or both (Pennsylvania, Wisconsin).  However, regardless how they characterize a judge’s role at a wedding, the opinions agree that refusing to perform same-sex marriages, while continuing to perform other marriages, is an indication of bias prohibited by the code of judicial conduct.  Canon 2.2(B), which applies to judicial duties, states that “a judge shall not . . .  by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation . . . .”  Similarly, Canon 3.1(C) provides that a judge shall not participate in extra-judicial activities “that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”  The Washington Commission notes that a judge’s obligations to avoid bias and the appearance of bias go “beyond those imposed on others who serve the general public, reflecting the unique and integral role judicial officers play in our constitutional scheme of justice honoring the rule of law. “

Emphasizing that judges take an oath when they take office, the opinions also rely on the Rule 1.1 requirement that “a judge shall comply with the law.”  For example, the Ohio opinion explains:

A judge’s oath to support the constitutions of the United States and the State of Ohio requires the judge to recognize and adhere to binding court interpretations of the same.  A judge’s unilateral decision to refuse to perform same-sex marriages based on his or her own personal, religious, or moral beliefs ignores the holding in Obergefell and thus, directly contravenes the oath of office. . . .

A judge is always required to comply with the law and has a higher duty than ordinary citizens to comply. . . .  The definition of “law” encompasses court rules, the Code of Judicial Conduct, the Rules of Professional Conduct, statutes, constitutional provisions, and decisional law. . . .  Consequently, a judge is required to comply with the U.S. Constitution and binding decisional law interpreting its provisions.  A judge’s refusal to marry same-sex couples, while continuing to marry opposite-sex couples, is contrary to the holding in Obergefell, and thus not in accord with the judge’s obligation to comply with the law.

Similarly, the Wisconsin opinion states:  “That the 14th Amendment to the U.S. Constitution requires states to license same-sex marriages . . . is now the law of the land which judicial officers in Wisconsin under their oath have sworn to support.”  The Arizona opinion advises that, “refusing to perform a marriage because participants are of the same sex is a refusal to follow the law and thus a violation of the Code.”

The Arizona, Nebraska, and Ohio committees also cite the provision (in Rule 2.2) that “a judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”  Those opinions note the acknowledgement in comment 2 “that while each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”

Several opinions (Nebraska, Ohio, Pennsylvania, Washington, and Wisconsin) also rely on the code requirement (Rule 1.2) that a judge “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.”  For example, the Ohio committee explains that “public confidence in the independence of the judiciary is undermined when a judge allows his or her beliefs concerning the societal or religious acceptance or validity of same-sex marriage to affect the performance of a judicial function or duty.”  Several agencies (Nebraska, Ohio, Pennsylvania, and Washington) also cite the requirement that a judge “avoid impropriety and the appearance of impropriety.”

The Ohio committee notes that Rule 2.4 requires a judge to avoid being swayed “by public clamor or fear of criticism” and to avoid permitting outside interests and relationships to influence the judge’s conduct or judgment, regardless, as a comment explains, whether the law is “popular or unpopular with the public, the media, government officials, or the judge’s friends or family.”  The committee concludes that “a judge who permits these external factors to influence his or her execution of a judicial function erodes public confidence in the judiciary.”

A judge cannot refuse to perform a same-sex ceremony even if the judge refers the couple to another court or individual who is willing to do so (see the Arizona and Nebraska opinions) and even if the judge only conducts opposite-sex ceremonies at locations other than court facilities (see the Arizona opinion).  The Arizona and Nebraska committees do allow a judge to choose to conduct marriage ceremonies only for friends and relatives as long as the judge does not refuse to conduct a same-sex ceremony for a friend or a relative.  The Pennsylvania article, however, questioned whether that exception was appropriate.

Because performing marriages is discretionary, the Arizona, Nebraska, and Wisconsin committees allow a judge to choose not to conduct any marriages to avoid personal or religious conflicts.  Other agencies, however, disapprove that option.  For example, the Ohio opinion states that a “judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs” because doing so “may reflect adversely on perceptions regarding the judge’s performance of other judicial functions and duties.”

A judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages.  Even if a judge decides not to perform any marriages, but does so only after Obergefell, the judge may face the prospect of disqualification in matters where the sexual orientation of the parties is at issue.

For example, if a judge who has declined to perform same-sex marriages is later assigned to hear a misdemeanor domestic violence charge involving a same-sex couple, the judge’s ability to follow the law and impartially apply the domestic violence laws could reasonably be questioned.  This same result obtains if a judge has maintained a position that he or she will perform only opposite-sex marriages.  Under either scenario, if the judge’s refusal to marry same-sex couples equates to the judge possessing or appearing to possess a personal bias or prejudice toward persons based on sexual orientation, he or she is required under [Rule 2.11] to disqualify himself or herself from the proceeding. . . .

Finally, a judge should be cognizant of the impact a decision to decline to perform all civil marriage ceremonies has on the public’s perception of the judiciary.  Regardless of whether the statutes authorizing the performance of civil marriages are deemed mandatory or permissive, the statutes reflect the legislative intent to grant citizens the opportunity to obtain a civil marriage from designated public officials.  When all judges in a jurisdiction decline to perform civil marriages, regardless of the reason for their decisions, the public’s access to a fundamental right may be foreclosed or significantly limited.  These decisions may reflect adversely on the judiciary as a whole.

The Pennsylvania Board article states:

A gay or lesbian litigant may suspect that a judge is acting out of bias and prejudice against homosexuals, based on their sexual orientation, if s/he is aware that the judge previously performed wedding ceremonies for heterosexual couples but stopped officiating at all wedding ceremonies after [the federal court decision].  This suspicion may cause that same litigant to question the ability of the judge to decide impartially the litigant’s substantive case because of perceived bias or prejudice against gays and lesbians generally.  As a result, the gay or lesbian litigant or his or her counsel may decide to make a motion for the judge’s recusal or for a change in venue.

In the alternative, if a judge, who announced publicly that s/he will not perform wedding ceremonies for same-sex couples, knows for a fact that a litigant is gay or lesbian, then the judge should disclose from the bench his or her decision not to officiate at all weddings.  For instance, when a judge knows that the landlord appearing before him in a landlord and tenant matter is gay or lesbian, and the judge publicly declared his views about solemnizing weddings, the judge has an affirmative duty to disclose his change in position about performing wedding ceremonies because it may be perceived as relevant to the judge’s ability to rule impartially on those cases.  The burden then shifts to the gay or lesbian litigant, or his or her counsel, to seek clarification about the judge’s ability to adjudicate the case without bias or prejudice.

The judge should then explain to the gay or lesbian party and his or her attorney that the judge’s discomfort about solemnizing same-sex marriages arises solely from religious beliefs, not out of animus based on sexual orientation.  If the judge believes that s/he can decide the landlord and tenant matter impartially, free of personal bias and prejudice, then the judge should make a statement to that effect.  Still, the litigant may proceed to make a motion for disqualification or recusal.  At that point, the judge must decide whether the requested disqualification or recusal is necessary.

Similarly, the Louisiana committee advises that “judges should be mindful of the fact that if they once performed marriages and now choose not to, they could then receive motions to recuse from gay or lesbian individuals who perceive such refusal as indicative of animus.”

One thought on “Analyzing the same-sex marriage advice

  1. Pingback: Top judicial ethics stories of 2016 – so far | Judicial ethics and discipline

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