Some states have provisions governing whether a judge may accept an honorarium for performing a wedding ceremony in the code of judicial conduct, a court rule or directive, a statute, or a judicial ethics advisory opinion.
In some states, a judge cannot personally accept a fee for solemnizing a marriage regardless when or where the marriage is performed.
For example, the Illinois judicial ethics committee has advised that a judge may not accept a fee, gift, gratuity, or compensation of any kind for solemnizing a marriage even if the ceremony will be held outside normal working hours and at a location other than the courthouse. Illinois Advisory Opinion 1995-14. The committee reasoned that, by accepting such a gift, a judge would be improperly receiving compensation for services in addition to the judge’s salary, which is prohibited by court rule. Further, the committee concluded, the fee would constitute a “gift” given in return for an act performed in an official capacity, which is prohibited by the code of judicial conduct.
The states that prohibit judges from accepting fees for performing marriages are: Illinois, Missouri, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Carolina, and West Virginia.
Other states, however, distinguish between marriages that take place during regular court hours and those that take place outside of court hours, prohibiting a judge from retaining honorariums for the former but allowing them for the latter. Rule 3.16 of the Arizona code of judicial conduct, for example, allows a judge to “charge a reasonable fee or honorarium to perform a wedding ceremony during noncourt hours, whether the ceremony is performed in the court or away from the court,” while prohibiting a judge from charging or accepting “a fee, honorarium, gratuity or contribution for performing a wedding ceremony during court hours.” The states with this type of rule are Arizona, California, Colorado, Florida, Georgia, Indiana, Iowa, Nebraska, New York, Utah, Washington, and Wyoming.
In Wisconsin, the distinction turns on where the marriage is performed; a judge may not accept a fee for marriages performed in the courthouse, regardless what day or time of day.
In Alabama, Louisiana, Mississippi, and Texas, a judge is allowed to receive a fee for performing a marriage regardless when or where the ceremony takes place.
Even in circumstances in which a judge may accept fees, there are restrictions on promoting a judicial wedding “business.” For example, the Minnesota Board on Judicial Standards privately admonished a judge for promoting his wedding business by maintaining a web-site that identified and pictured him as a judge and by appearing as an exhibitor at a wedding trade show where he personally solicited attendees to hire him. Minnesota Private Discipline Summaries 2009-113. See also Rule 3.16(C), Arizona code of judicial conduct (“A judge shall not advertise his or her availability for performing wedding ceremonies”) ; California Judges Association Judicial Ethics Up-date, at 15 (2001) (“A judge may not advertise via a web site or print media to solicit business to perform weddings for a fee”); Colorado Advisory Opinion 2007-5 (a judge may not advertise her availability to perform wedding ceremonies by sending fliers to wedding planners and may not otherwise solicit business as a wedding officiant); Minnesota Summary of Advisory Opinions MN-2004 (it is inappropriate for judges to advertise in newspapers to perform weddings); New York Advisory Opinion 2008-74 (a judge may not engage in the “business” of performing marriages, solicit requests for such services as a for-profit business, or otherwise actively seek to be engaged in such activity); Texas Advisory Opinion 193 (1996) (a justice of the peace may not advertise “justice of the peace weddings” in the telephone book); Texas Advisory Opinion 292 (2006) (a judge may not directly solicit couples as they leave a county clerk’s office with their marriage licenses to perform their ceremony for pay); Washington Advisory Opinion 1991-14 (a court may put wedding information in the white pages of the telephone directory, but the judges should avoid any appearance that they are using the listing to solicit weddings or otherwise personally benefit).
A longer version of this post will appear as an article in the spring issue of the Judicial Conduct Reporter, to be published in May. You can sign up to receive notice when a new issue of the Reporter is available.