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ABA issues guidance for judges performing same-sex marriages

The American Bar Association Standing Committee on Ethics and Professional Responsibility, which periodically issues opinions related to ABA model ethics rules, released Feb. 14 guidance to judges on their options for performing same-sex marriages under the ABA Model Code of Judicial Conduct. 

Formal Opinion 485 comes as states are implementing the 2015 U.S. Supreme Court decision in Obergefell v. Hodges, and incorporates aspects of guidance developed for judges in Ohio, Arizona and Nebraska. That landmark decision found the 14th Amendment of the U.S. Constitution prohibits states from refusing to license marriages between individuals of the same sex, and mandates that states recognize a marriage between two people of the same sex when their marriage has been lawfully licensed and performed out-of-state.

The formal opinion differentiates between the obligations of a judge whose performance of same-sex marriage is conducted voluntarily or as a requirement of the judge’s job. In either case, Formal Opinion 485 asserts that the Model Code of Judicial Conduct is violated “by refusing to perform marriages for same-sex couples while agreeing to perform marriages of opposite-sex couples.”

If a judge is not obligated to perform marriages, the judge “may decline to perform all marriages for members of the public” while still providing the service for “family and friends,” the opinion said. Still, the judge must be consistent and cannot discriminate based on sexual preference in performing those specific marriages.

“The public is entitled to expect that judges will perform their activities and duties fairly, impartially and free from bias and prejudice,” Formal Opinion 485 says. “Further, while actual impartiality is necessary, it is not sufficient; the public must also perceive judges to be impartial. If state law authorizes or obligates a judge to perform marriages, a judge’s refusal to perform same-sex marriages while agreeing to perform marriages for opposite-sex couples is improper” under the judicial model code.

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