The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has clarified when a judge subject to the Model Code of Judicial Conduct may perform marriages of opposite-sex couples but refuse to perform marriages for same-sex couples.

Judges who have a mandatory obligation to perform marriages can’t refuse to marry same-sex couples because this would violate the Model Code of Judicial Conduct, a Feb. 14 opinion from the committee said.

But if a judge isn’t required to perform marriages, it’s acceptable for the judge to refuse to perform all marriages, the committee said.

A judge who decides, however, not to perform any marriages for the public but agrees to for family and friends, can’t discriminate between same-sex and opposite-sex couples in this circumstance, according to the committee.

Underpinning its reasoning is the notion that the public “is entitled to expect that judges will perform their activities and duties fairly, impartially, and free from bias and prejudice” and that “while actual impartiality is necessary, it is not sufficient; the public must also perceive judges to be impartial,” the ethics opinion said.

The committee looked to several state judicial ethics opinions on judges’ obligations to perform same-sex marriages and a recent Oregon Supreme Court opinion to bolster its conclusions.

Free From Bias

Four Model Code rules—1.1, 2.2, 2.3(A), and 2.3(B)—guided the committee’s reasoning.

Rule 1.1 requires judges to comply with the law. The law—as embodied in the 2015 U.S. Supreme Court opinion, Obergefell v. Hodges—says that it’s unconstitutional for state officials to engage “in discrimination and bias toward gays and lesbians in decisions related to same-sex marriage,” the committee noted.

The committee then turned to the remaining three rules, which deal with impartiality and bias in judges.

Rule 2.2 not only requires judges to uphold and apply the law, the committee said, but it also directs judges to “perform all duties of judicial office fairly and impartially.”

In this context, “impartiality” means “the absence of bias or prejudice in favor of, or against, particular parties or classes of parties,” it said.

Rule 2.3(A) requires judges to perform their duties free from bias and prejudice and Model Rule 2.3(B) prohibits a judge who is performing judicial duties from manifesting bias or prejudice based on sex, gender, sexual orientation, or marital status.

“Indeed, we are aware of no state judicial ethics opinion concluding that similar judicial code provisions permit judges who perform marriage ceremonies for opposite sex couples to refuse to perform marriage ceremonies for same-sex couples,” the committee said.

State Ethics Opinions

The committee’s opinion cited several state judicial ethics opinions that support judges performing same-sex marriages if they perform opposite-sex marriages.

The Supreme Court of Ohio Board of Professional Conduct determined in 2015 that a judge who performs marriages can’t refuse to perform same-sex marriage based on religious, personal, or moral beliefs. It also found that Ohio judges can’t refuse to perform all marriages to avoid performing same-sex marriage for religious, personal, or moral reasons because this could be seen as being biased against same-sex couples.

In Arizona, performing marriages is a discretionary function so a judge can choose to perform no marriages, the Arizona Supreme Court Judicial Ethics Advisory Committee said in 2015.

But Arizona judges can’t:

  • distinguish between same-sex and opposite-sex couples when deciding whether to perform marriage ceremonies;
  • decline to perform same-sex marriage ceremonies even if the judge refers would-be spouses to other courts or individuals;
  • decline to perform same-sex marriages if they perform other marriages in court facilities; or
  • decline to perform same-sex marriages even if they conduct all opposite-sex weddings outside of court facilities.

This holds true even if the refusal is for religious reasons, the state ethics committee said.

The Nebraska Judicial Ethics Committee reached the same conclusions in 2015. Like Arizona, it also determined that judges may choose to perform marriages exclusively for close friends and relatives, but in that case, they can’t refuse to perform same-sex marriages for close friends and relatives.

Oregon Supreme Court Opinion

The committee found further support for its conclusions in a 2018 Oregon Supreme Court decision. The ruling said that a judge who investigated the gender information of marriage applicants exhibited prejudice against same-sex couples based on their sexual orientation in violation of Oregon Rule 3.3(B).

This rule prohibits a judge from acting with prejudice or bias while undertaking official duties.

The state high court found that even though Judge Vance Day never got around to refusing to marry same-sex couples, the directions he gave to his employees to research applicants and notify them he wasn’t available on their requested day if they were same-sex couples, were a violation of the rule.

Day argued that because he never had the opportunity to deny a same-sex couple the chance to marry, he didn’t discriminate against these couples.

The court disagreed. The instructions to his staff showed he intended to treat same-sex couples differently and these actions manifested prejudice, it said.

The opinion is ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 485 2/14/2019.