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The wall between church and judiciary

by Dennis Rendleman, ABA Center for Professional Responsibility

“Rose is a rose is a rose is a rose.” – Gertrude Stein.

On Feb. 14, 2019, the Standing Committee on Ethics and Professional Responsibility issued Formal Ethics Opinion 485 that states that a judge who is performing marriages may not refuse to perform the marriage of a “same-sex” couple. In essence, the opinion states that at civil law, “marriage is a marriage is a marriage is a marriage.” While one might think this would fall into the “so-damned-obvious” category (behavior that is so damned obvious that one would consider an ethics opinion unnecessary), in these days of a “weaponized” First Amendment, including the “sincerely held religious belief,” there was uncertainty.

The opinion makes clear that when performing marriages is a mandatory judicial duty, no judge may refuse to preside regardless of the orientation of the couple. Further, if performing marriages is a discretionary judicial duty, a judge may not discriminate between opposite sex or same-sex couples. And, if a judge has discretion over whether to preside and determines to only perform marriages for family and friends, the judge is still prohibited from discriminating between the couples. Every couple is equal at law; the judge may not ethically distinguish between couples.

Model Code of Judicial Conduct, Rule 2.3(B) is a clear statement: 

A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, 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.  

Further, Comment [2] includes the comment that “[a] judge must avoid conduct that may reasonably be perceived as prejudiced or biased.”

The significant point that has been subject to some reasonable discussion is whether it is a violation of the code for a judge, who objects to performing ceremonies for same-sex couples, to simply refuse to preside over any marriage ceremonies. The few states that have opined are divided though their rules are based upon Rule 2.3(B).

Ohio Opinion 15-001 determined that declining to perform any marriages as a “work-around” for avoiding presiding over same-sex marriages “manifest [ ] an improper bias or prejudice toward a particular class.” 

In contrast, Arizona Judicial Ethics Opinion 15-01 took the opposite view and determined that a judge could limit the service of presiding over marriages to families and friends, so long as the judge did not discriminate between opposite-sex or same-sex family and friends.

It is interesting to note that, at its core, objection to performance of civil marriage regardless of the gender of the couple reflects a perception that, regardless of the civil law, one can impose personal religious beliefs. Opinion 485 discusses the disciplinary case from Oregon, In re Day.  Judge Day determined that his religious opinion superseded his judicial responsibilities. His defense combined assertion of First Amendment rights/violation with a claim his conduct did not violate judicial conduct. In sum, he asserted his right to religious practice that included the belief that marriage only between a man and a woman was not discriminatory. He argued that his avoidance of conducting marriages between same-sex couples was not prejudicial because his efforts had no intent to outrage the public or offend same-sex couples. 

Of course, on its face such a perspective directly contradicts with what might be called the “prime directive” of the Model Code of Judicial Conduct, Rule 2.1: “The duties of judicial office, as prescribed by law, shall take precedence over all of a judge’s personal and extrajudicial activities.”

Though not a part of Opinion 485, a Wyoming judicial discipline case was cited by the Oregon Court’s discipline of Judge Day. In Neely v. Wyoming Commission on Judicial Conduct & Ethics, the Wyoming Supreme Court censured a judge who publicly announced that she would not perform same-sex marriages. (An interesting footnote to this case is that Judge (Ruth) Neely was not a lawyer or legally trained. Rather, she was a municipal court judge appointed by a city council and then was subsequently, additionally appointed a part-time circuit court. One of the primary duties of that part-time position is performance of civil marriages.)

Judge Neely argued that her religious beliefs causing her to refuse to marry same-sex couples did not reflect bias or prejudice. One statement she made during the matter was that she could not be “complicit in another’s sin.” This does seem a bundle of contradictions. 

Fundamentally, the marriage at issue is a civil and not a religious act. As the Massachusetts Supreme Court noted in Goodridge v. Department of Health:

Simply put, the government creates civil marriage. In Massachusetts, civil marriage is, and since pre-Colonial days has been, precisely what its name implies: a wholly secular institution. See Commonwealth v. Munson, 127 Mass. 459, 460466 (1879) (noting that “[i]n Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, and Commonwealth,” and surveying marriage statutes from 1639 through 1834). No religious ceremony has ever been required to validate a Massachusetts marriage. [citations omitted]

The dissenting Wyoming Supreme Court justices objected to the majority’s findings by arguing that Neely would require every Wyoming judge to perform same-sex marriages. 

Well, yes, that is exactly the point. A judicial position is not a religious position and does not require any expression of or action based upon “sincerely held religious belief.” The words of President Thomas Jefferson in his 1802 letter to the Danbury Baptist Association capture what might be called the “originalist” interpretation of the U.S. Constitution: 

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. 

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