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.

Premium Content For:
  • Litigation Section
Join - Now