Since the Supreme Court’s marriage equality ruling (Obergefell), states have wrestled with whether officials are required to officiate same-sex couples’ marriages. This week, the Supreme Court of Ohio’s Board of Professional Conduct took a definitive position: judges must perform same-sex marriages.
“A judge’s refusal to marry same-sex couples, while continuing to marry opposite-sex couples, is contrary to the holding in Obergefell, and thus not in accord with the judge’s obligation to comply with the law,” the opinion reads. “Public confidence in the independence of the judiciary is undermined when a judge allows his or her beliefs concerning the societal or religious acceptance or validity of same-sex marriage to affect the performance of a judicial function or duty.”
The opinion actually goes a step further than just telling judges that they can’t pick and choose who they marry based on sexual orientation. It also says that judges cannot choose to stop performing all marriages just to avoid performing same-sex marriages. That’s because “a judge who publicly states or implies a personal objection to performing same-sex marriages and reacts by ceasing to perform all marriages acts contrary to the mandate to avoid impropriety and the appearance of impropriety.” Specifically, it “demonstrates a lack of the fairness and impartiality.”
The Board warns that if a judge makes any kind of public decision to avoid performing same-sex marriages, that judge would then be required to recuse himself in future cases involving same-sex couples. For example, such a judge would appear to possess a personal bias or prejudice if presented with a misdemeanor domestic violence charge involving a same-sex couple. “A judge’s decision to decline to perform some or all marriage ceremonies, when grounded on the judge’s personal beliefs, may reflect adversely on perceptions regarding the judge’s performance of other judicial duties… A judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages.”
And in the wake of the Supreme Court’s decision, any attempt by a judge to get out of marrying couples would be suspicious. “Even if a judge decides not to perform any marriages, but does so only after Obergefell, the judge may face the prospect of disqualification in matters where the sexual orientation of the parties is at issue.”
The opinion also makes the point that such decisions reflect negatively on the entire judiciary, especially if more judges begin to make them. “When all judges in a jurisdiction decline to perform civil marriages, regardless of the reason for their decisions, the public’s access to a fundamental right may be foreclosed or significantly limited. These decisions may reflect adversely on the judiciary as a whole.”
In July, Municipal Judge C. Allen McConnell refused to marry two women in Toledo. He explained, “The declination was based upon my personal and Christian beliefs over many years,” promising to continue performing “traditional marriages” but qualifying that he would not “marry a non-traditional couple.” He sought guidance from the Ohio Supreme Court on the matter, and now that he has it, has promised to abide by it.
Weeks before the Supreme Court’s Obergefell ruling, North Carolina lawmakers took a very different approach, overwhelmingly passing a law that allows state magistrates to decline to perform marriages. They can’t pick and choose which couples to marry based on sexual orientation, but they can opt to no longer fulfill their duties of officiating marriages altogether.
Conservatives in other states are calling for similar protections. In Kentucky, a county clerk is fighting her own fight for the right to not issue marriage licenses to same-sex couples, as is at least one probate judge in Alabama.
Obergefell, a case that actually originated in Ohio, explicitly grants same-sex couples access to marriage “on the same terms as accorded to couples of the opposite sex” and “equal dignity under the law.”