February 19, 2019

In wake of landmark decision, ABA issues guidance for judges performing same-sex marriages

CHICAGO, Feb. 14, 2019 — The American Bar Association Standing Committee on Ethics and Professional Responsibility released today a formal opinion giving judges guidance related to their options for performing same-sex marriages under the 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 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 was lawfully licensed and performed out-of-state.

The formal opinion differentiates between the obligations of a judge whose performance of marriages is either mandatory or optional. In either case, Formal Opinion 485 said 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 maintaining that prerogative for “family and friends,” the opinion said. Still, the judge must be consistent and not 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.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Formal Opinion 485 and other ABA ethics opinions are available on the ABA Center for Professional Responsibility website.

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