Refusing to perform same-sex marriages

Recently, the Texas State Commission on Judicial Conduct publicly warned a judge for refusing to perform same-sex weddings while continuing to perform opposite sex weddings.  Public Warning of Hensley (Texas State Commission on Judicial Conduct November 12, 2019).  The Commission found that the judge had cast “doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation . . . .”  (According to the Texas Tribune, the judge has filed a lawsuit in state court claiming that the Commission violated the Texas Religious Freedom Restoration Act and seeking a declaratory judgment that “any justice of the peace may refuse to officiate a same-sex wedding ‘if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.’”)

Beginning in August 2016, the judge and her court staff gave all same-sex couples wishing to be married by the judge a document stating:  “I’m sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings.”  The document includes a list of local persons who would officiate a same-sex wedding.

On June 24, 2017, the Waco Tribune published an article on their web-site entitled, “No Courthouse Weddings in Waco for Same-Sex Couples, 2 Years After Supreme Court Ruling.”  The article reported that the judge “would only do a wedding between a man and a woman.”

Other judges have also been publicly sanctioned for refusing to perform same-sex marriages.

In 2013, based on a stipulation and agreement, the Washington State Commission on Judicial Conduct admonished a judge for publicly stating he would not perform same-sex marriages in his judicial capacity while he continued to perform opposite-sex marriages.  In re Tabor (Washington State Commission on Judicial Conduct October 4, 2013).

On November 6, 2012, Washington voters passed a referendum approving same-sex marriage.  During an administrative meeting with judges and court personnel shortly before the referendum was to take effect, the judge stated that he felt “uncomfortable” performing same-sex marriages and asked his colleague who did not have similar personal objections to officiate in his stead.  Reporters learned about his position from an unidentified source, and his statement was broadly publicized.  After several newspaper articles and on-line comments, to press clarify his position, the judge explained that his decision not to marry same-sex couples was very personal and based on his religious views, and that, because judges are not required to perform marriages, he believed he had a right to decline to perform same-sex marriages so long as those seeking to be married have access to another judge without delay.

Following contact by the Commission, of his own volition, the judge ceased performing all marriages.

The judge accepted “the Commission’s determination that, by announcing he would not solemnize same-sex marriage due to his philosophical and religious concerns while continuing to solemnize opposite-sex marriages, the judge appeared to express a discriminatory intent against a statutorily protected class of people, thereby undermining public confidence in his impartiality.  Acknowledging that the judge was not required to solemnize marriages, the Commission explained that, “having chosen to make himself available to solemnize some weddings, . . . he is bound by the Code of Judicial Conduct to do so in a way that does not discriminate or appear to discriminate against a statutorily protected class of people.”

The Code of Judicial Conduct imposes on judicial officers a specific, enforceable obligation to avoid bias and the appearance of bias.  These obligations 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.  Judges must not only be impartial, but must also be perceived as impartial, in order to properly fulfill that role . . . .

By even temporarily acting in a discriminatory fashion toward gay men and lesbians, in stating that he would not solemnize their marriages when he continued to solemnize heterosexual marriages, and by commenting on that decision publicly, a reasonable person could objectively conclude that he might act in a discriminatory fashion toward gay or lesbian litigants, lawyers, or witnesses.

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In a de novo review, the Wyoming Supreme Court 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, 390 P.3d 728 (Wyoming 2017).  For a longer discussion of the case, see a previous blog post.

See also Moore v. Judicial Inquiry Commission (Alabama Supreme Court April 19, 2017) (suspension until end of term of Chief Justice for entering an administrative order that directed all probate judges to follow the state’s laws banning same-sex marriage in disregard of a federal court injunction; In re the Matter of Nance, Findings of fact, conclusions of law, and final order (Kentucky Judicial Conduct Commission December 19, 2017) (public reprimand for entering a general order declaring that “under no circumstance” would the adoption of a child by a homosexual be in the child’s best interest); Inquiry Concerning Day, 413 P.3d 907 (Oregon 2018) (holding that judge committed willful misconduct by having his staff screen marriage requests to ensure that he did not marry a same-sex couple, but declining to consider the judge’s constitutional arguments because, even if it considered his refusal to perform same-sex marriages, it would impose the same sanction (a three-year suspension without pay) as it was imposing for other violations); Re Atherton (Tennessee Board of Judicial Conduct December 18, 2015) (public reprimand for an order dismissing a complaint for divorce because, referring to the U.S. Supreme Court decision on same-sex marriage in Obergerefell v. Hodges, “Tennesseans, corporately, have been deemed by the U.S. Supreme Court to be incompetent to define and address such keystone/central institutions such as marriage and, thereby, at a minimum, contested divorces”).

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In 2014 and 2015, judicial ethics committees or conduct commissions in 6 states 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.  For an analysis of those advisory opinions, see a previous blog post.

In 2019, the American Bar Association Standing Committee on Ethics And Professional Responsibility issued a formal opinion on judges and same-sex weddings.  ABA Formal Opinion 485 (2019).  The opinion advised that, in a jurisdiction in which judges are obligated to perform marriages, a judge may not decline to perform marriages for same-sex couples.  In a jurisdiction in which performing marriages is a discretionary judicial function, the committee stated, a judge may not decline to perform marriages for same-sex couples if the judge agrees to perform opposite-sex marriages but may refuse to perform all marriages for members of the public while still performing marriages for family and friends as long as they do not refuse to perform same-sex marriages for family and friends.

Manifest prejudice

The Oregon Supreme Court recently held that a judge committed willful misconduct by having his staff screen marriage requests to ensure that he did not perform ceremonies for same-sex couples.  Inquiry Concerning Day, Opinion (Oregon Supreme Court March 15, 2018).

After a federal district court invalidated the state’s constitutional ban on same-sex marriage in May 2014, the judge told his judicial assistant and his clerk to “discreet[ly]” try to determine whether a request to perform a marriage was from a same-sex couple by checking for gender information in the judicial case information network, which they had not done prior to the federal decision.  If the request was from a same-sex couple, he instructed, they should tell the couple that he was not available on the requested date or notify him so that he could decide how to proceed.  The judge’s judicial assistant determined that a requesting couple might be a same-sex couple 1 time, but the judge had an actual scheduling conflict, and she truthfully told the couple that he was not available.  Several weeks later, the judge stopped solemnizing all marriages.  His judicial assistant and others testified that they never had seen or known the judge to discriminate against or speak in a derogatory way about the LGBT community.

Rule 3.3(B) of the Oregon code of judicial conduct provides that:  “A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice, or engage in harassment, against parties, witnesses, lawyers, or others based on attributes including but not limited to, sex, gender identity, race, national origin, ethnicity, religion, sexual orientation, marital status, disability, age, socioeconomic status, or political affiliation and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.”  (Rule 3.3(B) is similar but not identical to Rule 2.3(B) of the American Bar Association Model Code of Judicial Conduct.)  Rejecting arguments by the judge and amici curiae, the Court held that solemnizing marriages is a judicial duty, noting that, although judges are not required to perform marriages, “it is by virtue of holding judicial office that a judge is statutorily authorized to do so.”

The Court noted that Webster’s Third New International Dictionary defines “manifest” “in part, as ‘to show plainly:  make palpably evident or certain by showing or displaying.’”  That definition, it concluded, means that a judge’s conduct must be “obvious to others” to constitute a violation of Rule 3.3(B).  The Court noted that the public was not aware of the judge’s screening process, but it stated that he “indisputably communicated to his staff his intention to treat same-sex couples” differently than opposite-sex couples and “directed his staff to participate in that different treatment.”  Therefore, it concluded, his instructions manifested prejudice within the meaning of Rule 3.3(B).

Rejecting the judge’s argument, the Court concluded that it was irrelevant that no same-sex couple was refused the opportunity to marry as a result of his actions.  It acknowledged that most manifestations of bias “involve a judge’s overt and prejudicial treatment of a particular person involved in a proceeding before the court—such as a litigant, juror, witness, or lawyer.”  However, emphasizing that the “fundamental objective” of Rule 3.3(B) was “ensuring the public’s trust in an impartial and fair judiciary,” the Court concluded that the “rule is not limited to a manifestation of prejudice against an identified, particular person” but also includes “an expression of bias against an identifiable group, based on personal characteristics, in the performance of judicial duties.”

The judge argued that he had not intended to discriminate against same-sex couples but was only “trying to maintain the tenets of his faith.”  That Court stated that, regardless of his intent, the judge’s instructions to his staff were “an intentional action” that subjected same-sex couples to discriminatory treatment.  The Court also noted that the judge’s direction that his staff be “discreet” “reflected an understanding” that his conduct may have violated the code.

However, the Court did not sanction the judge for adopting the screening process, despite what some headlines stated or suggested.  See, e.g., Law360.com, “Ore. Judge Suspended For ‘Screen’ Of Gay Marriage Couples;” and OregonLive.com, “Judge Vance Day — who wouldn’t marry same-sex couples — suspended for 3 years.”  In the disciplinary proceedings, the judge argued that sanctioning his actions regarding same-sex marriage request would violate his constitutional rights.  The Court sidestepped those “important and complex issues” by concluding that, even if it rejected the judge’s constitutional challenge, the sanction it was already imposing for the judge’s other “notably serious misconduct” would not change.  Thus, without consideration of the same-sex marriage issue, the Court suspended the judge for 3 months without pay for (1) having out-of-court contacts with a probationer in the veterans treatment court over which he presided; permitting the probationer to twice handle a gun despite the firearms prohibition that was a condition of his probation; and making a false statement to the presiding judge about the gun-handling incidents; and (2) making a false statement to the Commission on Judicial Fitness and Disability during its investigation of the judge’s conduct at a soccer game.

Oregon judge suspended — but not because he used a screening process to avoid conducting same-sex marriages

The Oregon Supreme Court held that a judge had committed willful misconduct by having his staff screen marriage requests to ensure that he did not marry same-sex couples, but the Court declined to consider the judge’s constitutional challenge because a decision on that issue would not affect its conclusion that the judge should be suspended for 3 years without pay for (1) having out-of-court contacts with a probationer in the veterans treatment court; permitting the probationer to twice handle a gun despite the firearms prohibition that was a probation condition; and making a false statement to the presiding judge about the gun-handling incidents; and (2) making a false statement to the Commission on Judicial Fitness and Disability during its investigation of the judge’s conduct at a soccer game.  Inquiry Concerning Day, Opinion (Oregon Supreme Court March 15, 2018).

Click here for previous posts on same-sex marriage and judicial ethics

 

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.