Deeds, not faith

The Wyoming Supreme Court censured a judge who had announced her refusal to perform same-sex marriages and ordered that she either perform no marriage ceremonies or that she perform marriage ceremonies regardless of the couple’s sexual orientation.  Inquiry Concerning Neely (Wyoming Supreme Court March 7, 2017).  The Court emphasized:

This case is not about same-sex marriage or the reasonableness of religious beliefs. . . .  This case is also not about imposing a religious test on judges.  Rather, it is about maintaining the public’s faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law, independent of outside influences, including religion, and without regard to whether a law is popular or unpopular.

The judge has been a municipal court judge since 1994 and a part-time circuit court magistrate since 2001.  Her primary duty as a part-time magistrate was to perform marriage ceremonies.

It is undisputed that, as a devout Christian and member of the Lutheran Church, Missouri Synod, the judge sincerely believes that marriage is the union of one man and one woman.  After the U.S. District Court for the District of Wyoming enjoined the state from enforcing or applying any “state law, policy, or practice, as a basis to deny marriage to same-sex couples,” a reporter asked Judge Neely if she was “excited” to be able to perform same-sex marriages.  She responded, “I will not be able to do them….  We have at least one magistrate who will do same-sex marriages, but I will not be able to.”  She also stated, “When law and religion conflict, choices have to be made.  I have not yet been asked to perform a same-sex marriage.”  An article with those quotes appeared in the Pinedale Roundup, and another paper published the article on-line.

The Court held that the judge’s refusal to conduct marriages on the basis of a couple’s sexual orientation failed to promote “public confidence in the independence, integrity, and impartiality of the judiciary, and . . . avoid impropriety and the appearance of impropriety (in violation of Rule 1.2 of the code of judicial conduct); was not the fair and impartial performance of the duties of office “by any measure” (in violation of Rule 2.2); and could reasonably be perceived as biased (in violation of Rule 2.3).  Rejecting the judge’s arguments, the Court stated that she repeatedly “mischaracterizes her conduct” as “honestly conveying her religious beliefs” and emphasized its action “is a response to her deeds, not her faith.”  For example, it explained:

She is not subject to discipline merely because she has expressed her religious beliefs.  She has gone one or two critical steps farther than that to say that she will not impartially perform her judicial functions with respect to parties the United States Supreme Court has held have a constitutional right to be treated equally.

The Court concluded that “the problem of the public’s faith in judicial integrity remains” even if, as the judge argued, “others could perform marriages for same-sex couples, causing no disruption to their rights to marry.”

The Court also held that the U.S. Constitution permitted it to discipline the judge.  The Court distinguished cases relied on by the judge and amici in which the government had been required to allow free expression and accommodate religious beliefs.

  • Because “in Judge Neely’s case, public confidence in the judiciary is the central issue,” the Court distinguished a case holding that the post office was required to accommodate workers for whom processing draft registration forms was contrary to their religious beliefs where there was no issue of public confidence in the clerks’ neutrality.
  • Similarly, it distinguished a case requiring the IRS to allow an employee to disqualify himself from handling applications from groups with practices abhorrent to his religious beliefs because that accommodation would not impair taxpayer confidence in the tax system or the impartiality of the IRS.
  • The Court distinguished a case holding that Amish parents could not be forced to comply with the government’s requirement that they provide a social security number for their child to receive government benefits, which violated their sincerely held religious belief the number would rob their daughter’s spirit, because occasionally performing a same-sex marriage would not threaten the judge’s very “way of life.”
  • The Court distinguished cases holding that judicial candidates may express their views on disputed legal or political issues because the judge “does not merely believe that homosexuality is a sin; as a judge, she will manifest that belief by not treating homosexual persons the same way she treats heterosexual persons,” raising questions about her impartiality toward particular parties, rather than toward particular issues.

Instead, in its religious freedom analysis, the Court drew analogies to cases that refused to require government accommodations that would undermine the “fundamental function of the position” and that distinguished between the freedom to believe and the freedom to act.

  • It relied on cases upholding the termination of police officers who would not guard an abortion clinic or a casino because police officers “promise to enforce the law without favoritism—as judges take an oath to enforce all laws, without regard to their (or the litigants’) social, political, or religious beliefs.”
  • It relied on the removal of Chief Justice Roy Moore for his refusal to comply with a federal court order to remove a monument to the Ten Commandments from the Alabama Judicial Building because that court had concluded it was not about a public official’s right to acknowledge God, as he contended, but about a public official who took an oath to uphold the U.S. Constitution and then refused to obey a valid order.
  • It cited a case in which a judge was removed for maintaining multiple marriages as a religious practice although it agreed that a Mormon judge could not be excluded from judicial office because he believed in polygamy as long as he did not break the law against polygamy.

In a footnote, the Court explained:

The law recognizes no hierarchy of sincerely held religious beliefs. . . .  Yet if Judge Neely had taken the position that her religion prevented her from conducting interracial marriages, a right which our society now generally accepts, there would be little controversy regarding her discipline.  While we respect the religious views of those who deem same-sex marriage to be wrong, we cannot give those views greater weight in our constitutional analysis simply because they are more widely held. . . .  It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process.

Concluding that her misconduct warranted a public censure, the Court declined to remove the judge, as recommended by the Commission on Judicial Conduct and Ethics, to narrowly tailor the remedy.

2 justices dissented, stating “[c]ontrary to the position asserted by the majority opinion, this case is about religious beliefs and same sex marriage” and “whether there is a religious test for who may serve as a judge in Wyoming.”  The dissent emphasized that “Wyoming law does not require any judge or magistrate to perform any particular marriage, and couples seeking to be married have no right to insist on a particular official as the officiant of their wedding;” “that Judge Neely was never asked to perform a same sex marriage, and had never refused such a request;” “that there is no indication that any same sex couple is likely to be denied or delayed in obtaining a civil marriage because of Judge Neely’s statements or religious beliefs;” and that “if asked to perform such a marriage, Judge Neely would assist in finding an appropriate officiant, and that there is no shortage of such officiants.”

2 thoughts on “Deeds, not faith

  1. Pingback: Top judicial ethics stories of 2017 – So far | Judicial ethics and discipline

  2. Pingback: Refusing to perform same-sex marriages | Judicial ethics and discipline

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