Can a judge who performs opposite-sex weddings refuse to perform marriages for same-sex couples?

Plain-English summary

The Committee was asked whether 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. The opinion concludes that such a refusal violates the Model Code.

The opinion treats the performance of a marriage as a duty of judicial office, even where it is discretionary rather than mandatory. It reasons that Rule 1.1 requires a judge to comply with the law, that Rule 2.2 requires a judge to uphold and apply the law and perform judicial duties fairly and impartially, that Rule 2.3(A) requires duties to be performed without bias or prejudice, and that Rule 2.3(B) prohibits a judge performing judicial duties from manifesting bias or prejudice based on sex, gender, sexual orientation, or marital status. Applying these provisions, the opinion holds that a judge for whom marriage is a mandatory obligation may not decline same-sex marriages, and a judge for whom it is discretionary may not decline same-sex marriages if the judge agrees to perform opposite-sex marriages.

The opinion situates this conclusion within Obergefell v. Hodges, which held that the Fourteenth Amendment bars states from refusing to license same-sex marriages, and surveys state judicial ethics opinions from Ohio, Arizona, Nebraska, and Wisconsin that reached compatible conclusions. It notes that the result holds "even if a judge's decision not to conduct same-sex marriages reflects the judge's sincerely-held religious beliefs," while acknowledging that such beliefs may be honorably held.

The opinion also marks the limits of its holding. Because performing marriages is generally a discretionary function, "a judge may refuse to perform marriages for members of the public" altogether. And "a judge who declines to perform marriages for members of the public may still perform marriages for family and friends." But if the judge chooses to marry family and friends, the judge may not decline to perform same-sex marriages for family and friends.

In practice

Under the Model Code as it stood at the time of the opinion, a judge's discretion over wedding ceremonies does not extend to picking among couples by sexual orientation. The opinion holds that refusing same-sex marriages while performing opposite-sex marriages violates Rules 1.1, 2.2, 2.3(A), and 2.3(B); that a judge with discretion may instead decline to marry the public entirely; and that a judge who still marries family and friends may not exclude same-sex couples from that circle. The opinion states that a referral to another judge does not cure the violation, because the refusal itself manifests prohibited bias.

Common questions

Q: Can a judge refuse to marry a same-sex couple on religious grounds while still marrying opposite-sex couples?

A: No. The opinion concludes this refusal manifests bias under Rules 2.3(A) and 2.3(B), and that the result holds even where the refusal reflects the judge's sincerely-held religious beliefs.

Q: Can a judge just stop performing weddings altogether?

A: Yes, where performing marriages is discretionary. The opinion states that a judge may decline to perform marriages for members of the public.

Q: If a judge marries only family and friends, can the judge still decline same-sex couples?

A: No. The opinion holds that a judge who chooses to marry family and friends may not refuse to perform same-sex marriages for family and friends.

Q: Does referring the couple to another judge fix the problem?

A: No. Citing state authorities, the opinion treats a refusal accompanied by a referral as still manifesting bias based on the couple's sexual orientation.

Background and rules framework

The opinion interprets the ABA Model Code of Judicial Conduct (2011), specifically Canon 1 and Rule 1.1 (complying with the law), Canon 2 and Rule 2.2 (upholding and applying the law fairly and impartially), Rule 2.3(A) (performing duties without bias or prejudice), and Rule 2.3(B) (not manifesting bias based on sex, gender, sexual orientation, or marital status). It relies on Obergefell v. Hodges for the governing constitutional law and notes that each jurisdiction's own rules and law control.

Citations and references

Rules of Professional Conduct:

• ABA Model Code of Judicial Conduct Rule 1.1 (compliance with the law), Rule 2.2 (upholding and applying the law)
• Model Code Rule 2.3(A) and 2.3(B) (bias and prejudice, including sexual orientation and marital status)

Cases:

• Obergefell v. Hodges, 135 S. Ct. 2584 (2015), constitutional right to same-sex marriage
• Masterpiece Cakeshop v. Colo. Civil Rights Comm'n, 138 S. Ct. 1719 (2018), religious exercise

Other opinions cited:

• Ohio Bd. of Prof'l Conduct Adv. Op. 15-001 (2015): judges may not refuse same-sex marriages
• Arizona Jud. Eth. Adv. Comm. Op. 15-01 (2015) and Nebraska Jud. Eth. Comm. Op. 15-1 (2015)

See also

• ABA Formal Op. 488: Judges' Social or Close Personal Relationships
• ABA Formal Op. 462: Judge's Use of Electronic Social Networking Media
• NY State Bar Op. 541: Judge's Appearance of Integrity and Impartiality

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-485.pdf