In a first for the country, a state has instructed officers of the court that they cannot discriminate against same-sex couples while continuing to officiate the marriages of different-sex couples.
The Arizona Supreme Court Judicial Ethics Advisory Committee (JEAC) issued an advisory opinion last week laying out guidance for how state judges can decide who to marry and who not to marry. The opinion is not binding on judges, but if violated, could weigh against a judge in a disciplinary case.
If they perform marriage ceremonies generally, judges cannot distinguish between same-sex and different-sex couples. This means that they can’t refer same-sex couples to another court or individual, and it doesn’t matter where they perform the marriages or what their personal or religious beliefs are about marriage. “At the core of the JEAC’s response,” the guidance reads, “is the principle that a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.
The opinion does allow that judges can choose not to perform any marriages whatsoever. They can also opt to only perform marriages for friends and family members, but they still can’t discriminate based on sexual orientation if they do so. They also can’t abuse that privilege by stretching the definitions of words, as the guidance explains: “Broadly defining ‘friends’ as all members of a social club or a church would seem to create a pathway for a judicial officer to perform marriages yet still decline to perform same-sex marriages. This practice likely would undermine a judge’s ability to assert a nondiscriminatory intent and the protection of this opinion in defense of a misconduct charge.”
Social conservatives in the state are unsurprisingly upset with the guidance. Cathi Herrod, president of the Center for Arizona Policy, told AP that the opinion tramples on judges’ religious rights. State Sen. Steve Yarbrough (R), who sponsored the Center’s anti-LGBT “license to discriminate” bill that was famously vetoed last year, said that his first reaction was, “You’ve got to be kidding,” suggesting that he perceives “some First Amendment issues.”
Though Arizona’s guidance is novel, there have been times when state officials have chimed in on how judges may act. For example, state judicial authorities in Washington admonished a judge in 2013 for indicating that he would not perform weddings for same-sex couples despite continuing to do so for different-sex couples. When marriage equality arrived in North Carolina last year, the North Carolina Administrative Office of the Courts issued a memo similarly suggesting that state magistrates should not discriminate, though state lawmakers are considering legislation specifically to allow that discrimination. Conversely, the chaos over marriage equality in Alabama has led the state’s conservative Supreme Court to take the opposite tact and order probate judges not to issue same-sex marriage licenses.
(HT: Religion Clause.)