The American Bar Association’s Standing committee on Ethics released a formal opinion last week on guidance for judges performing same-sex marriage: In wake of landmark decision, ABA issues guidance for judges performing same-sex marriages. Their guidance interprets the Model Code of Judicial Conduct.

The Formal Opinion 485 incorporates procedures and policies developed for judges in Ohio, Arizona, and Nebraska. The 2015 Obergefell v. Hodges decision found the 14th Amendment of the U.S. Constitution prohibits states from refusing to license marriages between same-sex individuals and mandates that states recognize marriages between two same-sex people when lawfully performed in other states.

There are judges whose performance of same-sex marriages is mandatory and others who can choose whether to perform such marriages. The opinion of the committee interpreting the Model Code of Judicial Conduct is that ethics are violated when a judge performs marriages of opposite-sex couples yet refuses to perform marriages of same-sex couples. A judge may decline to perform all marriages for members of the public, yet still do weddings for family and friend, without violating the code of conduct. But the judge has to be consistent and not discriminate in performing weddings for members of the public.

Judges must maintain their impartiality and be free from bias and prejudice. It is not enough for a judge to actually be impartial, the public must perceive the judge to be impartial also. Refusing to perform weddings based on the sexual orientation of a couple where state law authorizes such shows prejudice or partiality.

“The public is entitled to expect that judges will perform their activities and duties fairly, impartially, and free from bias and prejudice. Further, while actual impartiality is necessary, it is not sufficient; the public must also perceive judges to be impartial. If state law authorizes or obligates a judge to perform marriages, a judge’s refusal to perform same-sex marriages while agreeing to perform marriages for opposite-sex couples is improper under Rules 1.1, 2.2, 2.3(A), and 2.3(B) Model Code….”

“Model Rule 1.1 obligates judges to comply with the law. Obergefell makes clear that the U.S. Constitution prohibits state officials from engaging in discrimination and bias toward gays and lesbians in decisions related to same-sex marriage; in short, the decision establishes law with which judges must comply. Model Rule 2.2 requires judges to “uphold and apply [this] law,” and further directs that judges “perform all duties of judicial office fairly and impartially.” As noted earlier, the term “impartiality” as used in this context means “the absence of bias or prejudice in favor of, or against, particular parties or classes of parties.” Furthermore, Model Rule 2.3(A) specifically requires judges to perform their duties free from bias and prejudice. Model Rule 2.3(B) prohibits a judge who is performing judicial duties from manifesting bias or prejudice based on sex, gender, sexual orientation, or marital status. Indeed, we are aware of no state judicial ethics opinion concluding that similar judicial code provisions permit judges who perform marriage ceremonies for opposite sex couples to refuse to perform marriage ceremonies for same-sex couples….”

“A judge may choose to perform no marriages, or to perform marriages exclusively for family and friends. If judges opt to perform marriages only for friends and relatives, however, they cannot refuse to perform same-sex marriages for friends and relatives. Again, to refuse to perform same-sex marriages for friends and relatives while performing marriages of opposite-sex friends and relatives would violate Model Rules 2.2, 2.3(A), and 2.3(B). The fact that the judge’s conduct affects a smaller group of people—that is, friends and family versus the public at large— does not change the judge’s ethical obligations….”

The opinion concludes:

“A judge for whom performing marriages is either a mandatory part of his or her official duties or an optional exercise of judicial authority violates the Model Code of Judicial Conduct by refusing to perform marriages for same-sex couples while agreeing to perform marriages of opposite-sex couples. In a jurisdiction where a judge is not obligated to perform marriages, the judge may decline to perform all marriages for members of the public. A judge who chooses not to perform any marriages for the public may still perform marriages for family and friends, so long as the judge does not discriminate between same-sex and opposite-sex couples when performing marriages for family and friends.”

The American Bar Association is one of the largest voluntary professional membership organizations in the world, with more than 400,000 members.

Read Formal Opinion 485 here: https://www.americanbar.org/content/dam/aba/images/news/2019/02/formal_op_485.pdf

For more information on Obergefell v. Hodges see the Oyez site here: https://www.oyez.org/cases/2014/14-556 They have links to the oral arguments, opinion announcements, majority and dissenting opinions.