The ABA’s Valentine’s Gift to Same-Sex Couples: Formal Opinion 458 Requires Judges to Perform Marriages

Published on JD Supra on February 19, 2019

On Valentine’s Day, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 485, entitled “Judges Performing Same-Sex Marriages,”  stating that judges may not decline to perform marriages for couples of the same sex. The ABA based its analysis on the Model Code of Judicial Conduct and recent judicial and legislative precedents, specifically a judge’s obligation to uphold the law, perform judicial duties without bias or prejudice, and preserve the impartiality of the judiciary.  The Opinion further discusses how this obligation applies both in jurisdictions where performing marriages is a mandatory judicial duty, and in jurisdictions where the marriage function is a discretionary duty.

Judges have a duty to comply with and uphold the law.  Model Rule 1.1 of the Model Code of Judicial Conduct obligates judges to comply with the law, and Model Rule 2.2 requires judges to apply and uphold all laws.  The United States Supreme Court’s landmark 2015 decision in Obergefell v. Hodges (135 S. Ct. 2584 (2015)), established as law that the Fourteenth Amendment to the United States Constitution prohibits states or state officials from refusing marriage licenses to same-sex couples.  Following that decision, it is clear that no judge can refuse to marry a same-sex couple, because such a refusal would be a failure to comply with law in direct violation of Model Rules 1.1 and 2.2.

The Opinion also cites a judge’s further obligation, pursuant to Model Rule 2.3, to perform his or her judicial duties “free from bias or prejudice.”  Model Rule 2.3(A) includes a general obligation to discharge duties of the judicial office with impartiality, while Model Rule 2.3(B) prohibits judges from “manifesting bias or prejudice based on people’s sex, gender, sexual orientation or marital status.” If a judge were to perform marriage ceremonies for only different-sex individuals and not for same-sex individuals, this distinction would represent a bias or prejudice against same-sex individuals in general, and specifically as a result of their sexual orientation.

It is fundamental to the integrity of the judicial system that the public have faith in the impartiality of the judiciary. The public expects judges to be fair, impartial, and unbiased. Indeed, the Model Code of Judicial Conduct contains numerous obligations to the effect that judges must avoid conduct that is, or is perceived to be biased or prejudiced.  The Opinion notes, “while actual impartiality is necessary, it is not sufficient, the public must also perceive judges to be impartial.” To create the perception of impartiality, a judge must ensure that all members of the public have access to the judge’s functions.

The Opinion distinguishes between cases where the marriage function is a mandated judicial duty, as opposed to a discretionary judicial duty.  When the performance of marriages is a mandated function, the judge has an absolute duty to perform the marriage for all, regardless of the sexual orientation of the marriage participants.  When the performance of marriages is a discretionary function, the ABA contends that the judge may choose to perform no marriages at all, or marriages only for a limited group. Clearly, if a judge with a discretionary function chooses to perform marriages for the public, the judge is obligated to perform marriages for all members of the public, including those of the same sex.  A judge with discretionary duties may, however, elect to perform marriages only for close friends and family. This decision is permissible according to the Opinion, provided that the judge also performs same-sex marriages for anyone within that close friends and family category that so request.

The Opinion also relied on precedents from state judicial ethics opinions and court cases from Ohio, Arizona, Nebraska, and Oregon, which support a judge’s obligation to perform same-sex marriages when the judge chooses to perform any marriages.  In Ohio, Arizona, and Nebraska, where the marriage function is discretionary for the judge, judges are barred from refusing to marry same-sex couples, even when doing so would violate the judge’s personal or religious beliefs, because refusing to perform the marriage “would manifest bias or prejudice toward a particular class.”  Nor may the judge simply refer the couple to a different officiant, because that, too, would demonstrate the referring judge’s prejudice against the couple. Finally, the court discussed an Oregon Supreme Court case (In re Day (413 P.3d 907 (Or. 2018))) in which a judge created a screening process to attempt to determine in advance if a couple applying for marriage was of the same sex.  Although the Oregon judge did not, in fact, decline to marry any same-sex couples, the court still held that the judge acted improperly by manifesting prejudice against others through the creation of this screening process.

But what of the judge who chooses not to perform marriages at all?  The ABA Opinion states that a judge may choose to not perform marriages at all when the function is discretionary, although it did not specifically address the issue of discontinuing the practice of discretionary marriages so as to avoid performing them for same-sex couples.  Ohio went so far as to say it would be improper for a judge who previously performed marriages for the public to discontinue that practice so as to avoid performing marriages for same-sex couples. The silence of the ABA Opinion on the practice of discontinuing marriage officiating to avoid the conflict should be addressed directly.

In the meantime, it is clear that to meet their ethical obligations of upholding the law and providing a fair and impartial judiciary, judges who are required or choose to perform marriages must provide same-sex couples with full and equal access to judicial officiants.