Same-sex marriage

The Nebraska Judicial Ethics Committee has issued an opinion advising that a judge may not disqualify himself or herself from cases involving the adoption of children by a same-sex married couple based on strongly held religious beliefs with regard to the couple’s sexual orientation.  Nebraska Advisory Opinion 2016-2.

The committee emphasized that the code of judicial conduct requires a judge to perform the duties of judicial office without bias or prejudice, expressly including bias or prejudice based on sexual orientation.  The opinion explained:

Presiding over adoption proceedings is a duty of judicial office.  If a judge is willing to preside over the adoption proceedings of a child of a non-same-sex married couple but not a proceeding involving a same-sex married couple, this 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.  [The code] acknowledges 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.”  Thus, a refusal to preside over or a disqualification from presiding over such a proceeding, based on the married couple’s sexual orientation, manifests bias or prejudice, and violates the Code.

The committee had received an inquiry from a judge asking if he may disqualify himself from adoption cases involving same-sex couples if he “is an openly professing and practicing evangelical Christian, that openly and publicly professes his faith in Jesus Christ as his Lord and Savior;” “prays to God, reads the Bible, gives financially to the church and Christian ministries, and attends a Bible teaching church;” “openly professes and believes the Bible is the inerrant Word of God that should be obeyed;” “believes the Bible teaches God has ordained marriage to be between one man and one woman;” “believes God has ordained and designed the family to be made up of a husband, a wife, and children;” and “believes God has also made His design for the family clearly evident in nature because human physiology and the human reproductive process (as created by God) requires one male and one female in order to produce a child.”

The Nebraska committee is one of the judicial ethics advisory committees that, shortly after the U.S. Supreme Court same-sex marriage decision in June 2015, issued an opinion stating that a judge may not refuse to perform same-sex marriages unless the judge refuses to conduct all marriages.  See previous post analyzing the same-sex marriage advice.

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