By Robert L. Mues   |   August 22nd, 2015

Judicial Performance of Same-Sex Marriages: Personal Beliefs Must Take a Back-Seat to Impartiality

same-sex marriages ohioEarlier this summer, the Supreme Court held that an individual’s right to marry a person of his or her choice to be a fundamental right under the United States Constitution. This ruling, highly publicized and long-anticipated, sparked expansive debate regarding Same-Sex Marriages across the country as citizens struggled to adapt their personal and professional lives in accordance with the Court’s intent to equally expand the rights of marriage to same-sex couples. Not long after, small businesses engaged in the “wedding industry” – perhaps, most notably a bakery in Colorado – announced that due to personal beliefs, they would not extend their services to same-sex couples that wished to marry. Debate and litigation continues to develop as courts begin to unearth whether the personal beliefs of business owners to essentially engage in discrimination violate the Supreme Court’s holding.

While the media likely anticipated backlash from United States citizens historically entitled to their personal beliefs and motives concerning same-sex marriages, it might not have anticipated the extension of similar concerns all the way to the judicial branch. On August 7, 2015, the Supreme Court of Ohio issued an advisory opinion #2015-1 addressed the issue of whether judges, who exercise the authority to perform civil marriages, could refuse to perform same-sex marriages.

It is worth noting that an advisory opinion is “nonbinding”. Essentially, it is just a statement from the state Board of Professional Conduct, issued in response to questions regarding the application of Supreme Court rulings.  Advisory opinions provide persuasive authority and guidance to members of the legal profession as to their continued rights and duties under a new law or ruling.

So, what did the Supreme Court of Ohio’s Board of Professional Conduct have to say to judges who wished to decline to perform same-sex marriages?

Unlike small business owners or individuals engaged in other occupations, a judge “has a higher duty than ordinary citizens to comply [with the law].” Advisory Opinion 2015-1. argument is common sense, in nature. Why wouldn’t an individual whose occupation is to enforce the laws of our nation be required to adhere more strictly to those laws and interpretations? The Board of Professional Conduct further commented that according to Rule 2.2 of the Judge’s Code of Judicial conduct, judges are required to “perform all duties of judicial office fairly and impartially” and “apply the law without regard to whether the judge approves or disapproves of the law in question.”  Jud. Cond. R. 2.2, Comment [2]. In other words, a judge is, of course, permitted to hold his or her own personal beliefs—we are humans, after all. However, a judge’s beliefs may not influence his or her occupational decisions, especially regarding the issue of same-sex marriages.

Furthermore, the opinion addressed inquiries from judges who, in light of the recent decision, wished to decline to perform all marriages in order to avoid marrying same-sex couples. Again, the Board of Professional Conduct found this argument to be weak and transparent. In addition to complying with the professional rules of conduct, appropriate judicial conduct also serves an underlying “public policy.” The role of a judge is one that, at all times, must promote “public confidence in the independence, integrity, and impartiality of the judiciary.” Jud. Cond. R. 1.2, Comment [1]. the opinion did not define the term “public confidence,” we can define the term with reference to other occupations in which “confidence” in one’s work is a desired trait.

For example, you would be more inclined to hire a plumber that confidently diagnoses the issue, using his or her specialized knowledge in the area, and then clearly states the manner in which the problem may be remedied. The plumber’s confidence in his skills subsequently instills confidence in you, the consumer, as you are reassured your plumbing will be restored to working condition at the hands of an informed and well-educated individual. Not unlike a confident plumber, a judge must display, and thereby evoke, confidence by adhering to the requirements of fairness and impartiality that his occupation requires. We would be less likely to trust a judge, easily swayed by his or her personal beliefs, to interpret laws designed to apply equally to all United States citizens.

The bottom line is this: a judge, whose administrative duties include performing civil marriages, may not refuse to perform same-sex marriages. Period. Additionally, the tactic of denying to perform all marriages in order to avoid performing same-sex marriages will not be tolerated. The Board of Professional Conduct warns against the use of any scheme designed to avoid upholding the law, as such conduct could easily raise questions as to a judge’s impartiality as to any case, past, present, or future.

Judges Who Decline To Perform Same-Sex Marriages Could Face Judicial Review

In the words of the Supreme Court, “Changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.” Obergefell v. Hodges, 35 S.Ct. 2584 (2015). The way society views the world and the relationships within it are changing, but the role of judges must remain a static constant of even analysis and fair assessment of the facts in relation to the law. Personal beliefs aside, those judges still wishing to decline to perform same-sex marriages might want to consider an alternative occupation in which their personal beliefs will be less susceptible to the rigid rules of professional conduct insulating the judicial branch.  Though, if I had to guess, those business and industries that do not necessarily have the same restrictions of impartiality, such as the aforementioned bakery, will soon be on the docket for judicial review. Let us hope, for the sake of the public’s confidence in the legal system, that judges involved in these matters will handle them according to the regulations of their profession.

Click here to read the advisory opinion relating to same-sex marriages.

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Robert L. MuesAbout The Author: Robert L. Mues
Robert Mues is the managing partner of Dayton, Ohio, law firm, Holzfaster, Cecil, McKnight & Mues, and has received the highest rating from the Martindale-Hubbell Peer Review for Ethical Standards and Legal Ability. Mr. Mues is also a founding member of the "International Academy of Attorneys for Divorce over 50" blog.

Same-Sex Marriages: Should Judges Decline To Perform Same-Sex Marriages?

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