Judge Sanctioned for Refusing to Perform Same-Sex Marriage Ceremonies

same-sexThe Supreme Court of Oregon has sanctioned a judge who “inappropriately screened . . . wedding applicants to ensure that they were not same-sex applicants, because [respondent] refused to marry same-sex partners even though they could lawfully marry under Oregon law.” Said the court:

Once a judge chooses to make himself or herself available to the public to perform marriages as part of his or her judicial duties, Rule 3.3(B) prohibits the judge from “manifest[ing] ** * prejudice * ** against *** others,” based on attributes including sexual orientation, or permitting staff to do so.

See Inquiry Concerning a Judge re The Hon. Vance D. Day, CJFD No. 12139, 1486; SC S063844 (Or. Mar. 15, 2018).1

At least one advisory opinion is consistent with this Oregon decision. The Supreme Court of Ohio Board of Professional Conduct noted in 2015 that “a judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages.” Further, “a judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs.” See Oh. Sup. Ct. Bd. of Prof. Cond. Op. 2015-1 (Aug. 7, 2015). To do otherwise in the wake of  Obergefell v. Hodges, 35 S. Ct. 2584 (2015), opined the committee, would violate the judicial oath of office and standards of conduct that require a judge, among other things, to comply with the law, and to “apply the law without regard to whether the judge approves or disapproves of the law in question.” Id.

Fairly obvious. The supreme law of the land as interpreted by the nation’s highest court in Obergefell requires states to recgonize same-sex marriages. A judge must support and defend the constitution and faithfully apply the law irrespective of the judge’s view of the law’s wisdom or morality. Pretty simple logic.

  1. As to whether performing marriages was a “judicial duty,” the court held as follows: “We have little difficulty concluding that the act of solemnizing marriages, once a judge has chosen to do so, qualifies as a “judicial duty” under Rule 3.3(B).

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