Disingenuous

A special Alabama Supreme Court has affirmed the decision of the Court of the Judiciary suspending Chief Justice Roy Moore from office without pay for the remainder of his term for ordering all probate judges to follow the state’s same-sex marriage ban despite a federal court injunction requiring the issuance of marriage licenses to same-sex couples and for failing to disqualify from the state case on same-sex marriage after taking a position on the issue in the order to probate judges.  Moore v Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017).

In early 2015, a federal district court enjoined enforcement of Alabama laws banning same-sex marriage, and the Eleventh Circuit upheld the injunction, but the Alabama Supreme Court held the state ban was constitutional.  Several days after the U.S. Supreme Court’s June 2015 decision on same-sex marriage in Obergefell v. Hodges, the Alabama Supreme Court invited argument on the effect of Obergefell on its prior decisions.  In July, lifting a stay it had entered pending the U.S. Supreme Court decision, the federal district court stated its injunction was binding on all Alabama probate judges.  In September, 2 probate judges filed petitions with the Alabama Supreme Court seeking a writ of mandamus directing them not to issue marriage licenses to same-sex couples.

On January 6, 2016, believing, as the special Court found, that the “Court was taking too long to decide the issue” and “deciding he could wait no longer,” the Chief Justice filed an administrative order that stated:  “IT IS ORDERED AND DIRECTED THAT:  Until further decision by the Alabama Supreme Court, the existing orders of the Alabama Supreme Court that Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act remain in full force and effect.”  In the administrative order, the Chief Justice did not mention the federal injunction or the Eleventh Circuit’s decision upholding the injunction.

In March 2016, the Alabama Supreme Court dismissed the probate judges’ petitions seeking a writ of mandamus.  The Chief Justice participated in the decision, writing a special concurrence into which he “copied and pasted substantial portions” of his administrative order.

Based on a complaint filed by the Judicial Inquiry Commission, the Court of the Judiciary found that the Chief Justice, in the administrative order, had demonstrated an unwillingness to follow clear law, had decided substantive legal issues while purporting to act in his administrative capacity, had substituted his judgment for the judgment of the entire Court on a substantive legal issue in a case then pending in that Court, and had interfered with the legal process and remedies in the U.S. District Court and the Alabama Supreme Court; the Court also found that the Chief  Justice should have disqualified himself from the decision on the probate judges’ petitions.  The Court of Judiciary decision is summarized in a prior blog post, “Not about same-sex marriage.”

The special Supreme Court held that the Court of the Judiciary’s findings were supported by clear and convincing evidence.  It is notable how often the special Supreme Court concluded, either directly or by agreeing with the findings of the Court of the Judiciary, that the Chief Justice’s administrative order or his defense of his conduct was disingenuous, not credible, or misleading.  For example:

  • The special Court repeatedly noted that the Chief Justice omitted from his arguments that his administrative order had “ordered and directed” probate judges not to issue marriage licenses while they were unquestionably bound by the federal court injunction. For example, despite the “ordered and directed” language, he argued the order was merely a “status update.”
  • The Court found that the administrative order “served no purpose, other than to create confusion among the probate judges.” The Court of the Judiciary had noted that only 20 of Alabama’s 68 probate judges are lawyers.
  • The Court found that the Chief Justice’s failure to mention the federal injunction in the order was intentional but that that omission did “not absolve him of inciting those bound by it to disobey.”
  • Although the Chief Justice stated in the order “I am not at liberty to provide any guidance to Alabama probate judges on the effect of Obergefell,” the special Court explained that “[s]tating that one is not at liberty to provide guidance while taking great pains to include several pages of legal analysis and argument is disingenuous.”
  • The Court of the Judiciary found that the Chief Justice’s brief description of Obergefell in the order was “at best incomplete and at worst intentionally misleading” and that his use of caselaw was “incomplete, misleading, and manipulative.”

The Alabama Supreme Court that issued the opinion was comprised of 7 special justices chosen by random from a pool of retired appellate, circuit, and district justices and judges after the other supreme court justices recused themselves from the Chief Justice’s appeal.  Documents in the case are available on the Court of the Judiciary web-site.

Affirming discipline in Alabama same-sex marriage case

A special Alabama Supreme Court has affirmed the decision of the Court of the Judiciary suspending Chief Justice Roy Moore of the Alabama Supreme Court from office without pay for the remainder of his term for directing or appearing to direct all Alabama probate judges to follow Alabama’s marriage laws in complete disregard of a federal court injunction; demonstrating an unwillingness to follow clear law; deciding substantive legal issues while purporting to act in his administrative capacity; substituting his judgment for the judgment of the entire Alabama Supreme Court on a substantive legal issue in a case then pending in that Court; interfering with the legal process and remedies in the U.S. District Court and/or the Alabama Supreme Court; and making a public comment about a pending proceeding and then failing to disqualify from the case.  Moore v Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017).  The Court that issued the opinion was comprised of 7 special justices chosen after the other justice of the Court recused themselves from the appeal by random from a pool of all retired appellate justices and judges, retired circuit court judges, and retired district court judges, who are members of the Alabama State Bar, capable of service, and residents of the State of Alabama.  The Court of the Judiciary decision was summarized in a previous blog post.

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.”

Same-sex marriage

The Wyoming Supreme Court has censured a judge for 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).  In addition to finding that the judge’s expressed refusal to conduct same-sex marriages violated the code of judicial conduct, the Court addressed whether the provisions of the Wyoming code of judicial conduct alleged to have been violated by the judge were void for vagueness and whether the U.S. and Wyoming Constitutions permit the Court to discipline the judge for announcing that her religious beliefs prevent her from officiating same-sex marriages.  2 justices dissented.

 

Not about same-sex marriage

Based on a complaint by the Judicial Inquiry Commission, the Alabama Court of the Judiciary suspended Chief Justice Roy Moore from office without pay until the end of his term for an administrative order in which he directed or appeared to direct all Alabama probate judges to follow Alabama’s marriage bans for same-sex couples despite a federal court injunction.  In the Matter of Moore, Final judgment (Alabama Court of the Judiciary September 30, 2016).  The Court of the Judiciary emphasized that the case was only about “alleged violations of the Canons of Judicial Ethics,” “not about whether same-sex marriage should be permitted,” or reviewing or editorializing about the U.S. Supreme Court’s decision in Obergefell v. Hodges, “a decision that some members of this court did not personally agree with or think was well reasoned.”  The Chief Justice filed a notice of appeal the next business day. (A timeline of relevant events is at the end of this post.)

In June 2015, in Obergefell, the U.S. Supreme Court held that same-sex couples have a fundamental right to marry under the federal constitution.  In January 2016, the Alabama Supreme Court was still considering the effect of Obergefell on its previous decision upholding the state’s same-sex marriage bans.  On January 6, noting confusion among the state’s probate judges, who issue marriage licenses, the Chief Justice filed an administrative order that “ordered and directed” that “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act” until the Alabama Supreme Court ruled on issue.  The order did not mention the federal injunction that had enjoined all probate judges from refusing to issue licenses to same-sex couples.

Subsequently, the Alabama Supreme Court dismissed petitions filed by probate judges seeking a writ of mandamus directing that they not issue marriage licenses to same-sex couples.  Chief Justice Moore participated in the decision.

 The Judicial Inquiry Commission filed a complaint against Chief Justice Moore based on his January 6, 2016 administrative order.

The Court of the Judiciary rejected as “not credible” the Chief Justice’s argument that he filed the January 6 order “merely to provide a ‘status update’ to the State’s probate judges,” noting that “a judge does not issue a ‘status update’ that ‘orders and directs’ that a law remain in effect.”  The Court found that “a disinterested reasonable observer, fully informed of all the relevant facts, would conclude that the undeniable consequence of the January 6, 2016, order was to order and direct the probate judges to deny marriage licenses” and that the order “called for action – and that action would have been in defiance” of Obergefell and of the federal injunction.  Noting that only 20 of Alabama’s 68 probate judges are lawyers, the Court also stated that the Chief Justice’s use of legal authority in the January 6 order “was incomplete to the point that . . . it was intended to be misleading.”

The Court of the Judiciary concluded that the Chief Justice, by willfully issuing the January 6, 2016 order, completely disregarded a federal court injunction when he knew or should have known every Alabama probate judge was enjoined from using the Alabama marriage laws or any Alabama Supreme Court order to deny marriages licenses to same-sex couples.  It also held that he demonstrated an unwillingness to follow clear law, decided substantive legal issues while purporting to act in his administrative capacity, substituted his judgment for the judgment of the entire Alabama Supreme Court on a substantive legal issue in a case then pending in that court, and interfered with the legal process and remedies in the U.S. District Court and/or the Alabama Supreme Court to address the status of any proceeding in which Alabama’s probate judges were parties.  The Court found that the Chief Justice violated Canons 1, 2, 2A, 2B, and 3.  The Court also found that the Chief Justice’s order was a public comment about a pending proceeding that placed his impartiality into question, and, therefore, he should have disqualified himself from the subsequent decision by the Alabama Supreme Court on the effect of Obergefell.

The Court of the Judiciary concluded:

As this court stated in its 2003 order removing Chief Justice Moore from office:  “While this court respects Chief Justice Moore’s right to his personal opinion on the underlying issues . . . , the fact remains that Chief Justice Moore is the chief judicial officer of this State and is held to a higher standard than a member of the general public.”  The fact also remains that this is the second time Chief Justice Moore has caused himself to be brought before this court for taking actions grossly inconsistent with his duties as Chief Justice and in violation of the Canons of Judicial Ethics.  The result in both instances has been a lengthy, costly proceeding for this court, the JIC, and, most unfortunately, the taxpayers of this State.

 A majority of the Court agreed with the Commission that removal was the appropriate sanction; however, the Court’s rules provide that removal of a judge requires “the concurrence of all members sitting.”

Time line

2003-2013

November 2003:  Based on the complaint of the Judicial Inquiry Commission, the Alabama Court of the Judiciary removes Chief Justice Roy Moore from office for failing to comply with a federal court order that he remove a monument displaying the Ten Commandments from the rotunda of the State Judicial Building.

April 2004:  A special Alabama Supreme Court affirms the judgment of the Court of the Judiciary.  (After the other justices of the Court recused, a special court of 7 members was chosen in a random drawing from a pool of retired justices and judges.)

2006:   Moore loses to the incumbent in the Republican primary for governor.

2010:  Moore places 4th in the Republican primary for governor.

November 2012:  Moore is elected Chief Justice for a second time.

January 2013:  Chief Justice Moore takes office for a 6-year term.

2015

January:  In Searcy v. Strange, a federal district court holds that Alabama’s same-sex marriage bans (the Alabama Sanctity of Marriage Amendment and the Alabama Marriage Protection Act) are unconstitutional and enters a preliminary injunction enjoining enforcement by the state attorney general.

February:  The 11th Circuit refuses to stay the district court injunction.

In a letter and memorandum of law, Chief Justice Moore advises the state’s probate judges that they are “not required to defer to federal district and circuit court rulings” on constitutional issues regarding same-sex marriage.

Chief Justice Moore issues an administrative order advising the probate judges that they are not bound by the injunction in Searcy because they are not parties to the case.

In Strawser v. Strange, the federal district judge holds that Alabama’s same-sex marriage bans are unconstitutional and enters a preliminary injunction enjoining the 1 probate judge who is a defendant from refusing to issue a marriage license to the same-sex plaintiffs.

March:  In Ex parte State ex rel. Alabama Policy Institute, the Alabama Supreme Court holds that Alabama’s same-sex marriage bans are constitutional and orders all probate judges who are not parties to Strawser to enforce the bans.  Chief Justice Moore did not participate because of his letter, memorandum, and administrative order to the probate judges.

May:  In Strawser, granting the plaintiff’s motion, the federal district court certifies a defendant class of all Alabama probate judges and preliminarily enjoins all members of the defendant class from denying marriage licenses to same-sex couples, but stays its injunction pending an imminent U.S. Supreme Court decision.

June:  In Obergefell v. Holdges, a case arising from challenges to same-sex marriage bans in Kentucky, Michigan, Ohio, and Tennessee, the U.S. Supreme Court holds that same-sex couples have a fundamental right to marry under the federal constitution and may exercise that right in all states.

The Alabama Supreme Court invites the parties in Alabama Policy Institute to address the effect of Obergefell on its decision upholding the bans.

July:  The federal district judge lifts the stay on the injunction in Strawser, noting it is binding on all Alabama probate judges.

September:  2 probate judges file petitions with the Alabama Supreme Court seeking a writ of mandamus directing probate judges not to issue marriage licenses to same-sex couples.

October:  The 11th Circuit summarily affirms the district court’s preliminary injunction.

2016

January:  Noting confusion among probate judges, the Chief Justice files an administrative order that “ordered and directed” that “Alabama probate judges have a ministerial duty not to issue any marriage license contrary to the Alabama Sanctity of Marriage Amendment or the Alabama Marriage Protection Act” until the Alabama Supreme Court rules on the pending petitions.

March:  The Alabama Supreme Court dismisses the probate judges’ petitions seeking a writ of mandamus.  Chief Justice Moore participates in the decision and files a special concurrence.

May:  The Judicial Inquiry Commission files a complaint against Chief Justice Moore based on his administrative order.  By automatic action of a provision in the state constitution, he is suspended with pay.

Chief Justice Moore files a federal lawsuit challenging the automatic suspension provision.

June:  Chief Justice Moore files a motion to dismiss the complaint.

July:  The only current member of the Court of the Judiciary who was also on the Court when it removed the Chief Justice in 2003 (1 of 2 lawyer members appointed by the Alabama State Bar) recuses himself from the proceedings, and the first alternate provided by the Bar is appointed a member of the Court for the matter.

August 8:  The federal district court dismisses the Chief Justice’s lawsuit, finding federal abstention was required.

The Court of the Judiciary denies the Chief Justice’s motion to dismiss.

September 28:  A 1-day hearing is held before the Court of the Judiciary.  (The Court’s rules provide that “a failure to convict within ten days after the conclusion of the hearing shall constitute an acquittal.”)

September 30:  The Court of the Judiciary suspends Chief Justice Moore from office without pay for the remainder of his term.  His attorney says he will appeal.

October 3:  The Chief Justice files a notice of appeal.

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.

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.”