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March 19, 2019 Articles

Formal Opinion 485 Shows No Love to Judges Who Refuse to Perform Same-Sex Marriages

Refusing to perform same-sex marriages violates Model Code of Judicial Conduct.

By Margaret Monihan Toohey

ABA Formal Opinion 485, aptly released on Valentine’s Day, considers whether judges may decline to perform marriages of same-sex couples. Answering that question in the negative (with limited caveats), the ABA’s Standing Committee on Ethics and Professional Responsibility decreed that a judge’s refusal to perform same-sex marriages while performing opposite-sex marriages “calls into question the judge’s integrity and impartiality and reflects bias and prejudice in violation of Rules 1.1, 1.2, 2.3(A), and 2.3(B) of the Model Code of Judicial Conduct.”

The opinion begins by noting that all 50 states and the District of Colombia assign judges mandatory or discretionary authority to perform marriages. Following the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges, individuals of the same sex are constitutionally guaranteed the right to marry. Same-sex couples are not, of course, constitutionally guaranteed the nuptials of their dreams. Masterpiece Cakeshop entitles bakers (and certain other wedding vendors) to reject would-be brides, grooms, or non-binary betrotheds on the basis that rendering ceremonial services would violate the vendors’ religious convictions. Pursuant to Formal Opinion 485, judges are not entitled to the same deference.

As the committee explains, the opinion does not concern judges’ First Amendment rights, but rather their obligations under the Model Code. Model Rule 1.1 “obliges judges to comply with the law.” Obergefell “prohibits state officials from engaging in discrimination and bias towards gays and lesbians in decisions related to same sex marriage; in short, the decision establishes law with which judges must comply.” Model Rule 2.2 requires judges to “uphold and apply [this] law,” and further directs that judges “perform all duties of judicial office fairly and impartially,” i.e., absent “bias or prejudice in favor of, or against, particular parties or classes of parties.” Model Rule 2.3(A) specifically requires judges to perform their duties free from bias and prejudice. Accordingly, a judge who refuses to marry same-sex couples runs afoul of Model Rules 1.1, 2.2, and 2.3(A).

Model Rule 2.3(B), meanwhile, prohibits a judge who is performing judicial duties from manifesting bias or prejudice based on sex, gender, sexual orientation, or marital status. Thus, a judge who performs marriage ceremonies for opposite-sex couples but refuses to perform marriage ceremonies for same-sex couples likewise violates Model Rule 2.3(B).

Specifically, the opinion prohibits a judge for whom performing marriages is either a mandatory part of his or her official duties, or an optional exercise of judicial authority, from refusing to perform marriages for same-sex couples while agreeing to perform marriages of opposite-sex couples. In a jurisdiction where a judge is not obligated to perform marriages, the judge may, however, decline to perform all marriages for members of the public. But a judge who chooses not to perform any marriages for the public may still perform marriages for family and friends—as long as the judge does not discriminate between same-sex and opposite-sex couples when performing such marriages.

The committee’s conclusions are supported by parallel ethics opinions issued in Ohio, Arizona, and Nebraska, and by a judgment of the Oregon Supreme Court. They are nonetheless likely to attract much rancor and, were they adopted elsewhere, trigger constitutional challenge. The ABA’s anti-bias resolution, for example—which similarly forbids bias or prejudice on the basis of gender or sexual orientation—continues to be hotly debated and analogous anti-bias provisions have been deemed unconstitutional in a number of states.

Ultimately, it is difficult to see how Formal Opinion 485 impinges upon a judge’s free exercise rights in a way that being an officer of the court, generally, does not. As Ohio’s Board of Professional Conduct describes,

The [judicial] oath represents the judge’s solemn and personal vow that he or she will impartially perform all duties incumbent on the office and do so without regard to the status or class of persons or parties who come before the court. The oath is a reflection of the self-evident principle that the personal, moral, and religious beliefs of a judicial officer should never factor into the performance of any judicial duty.

A fervently pro-life judge nevertheless must entertain (and, where appropriate, grant) a minor’s petition to access abortion services without parental consent. A fervently anti-death-penalty judge nevertheless must journalize a jury’s death sentence. Unilaterally refusing to perform same-sex marriages based on personal, religious, or moral beliefs contradicts Obergefell and thus directly contravenes the judicial oath of office. A judge who proceeds in such a manner does so at his or her professional peril.

Margaret Monihan Toohey is an attorney at Jones Day in Cleveland, Ohio.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).