By Frank Lewis
The Board of Professional Conduct of the Supreme Court of Ohio has offered an opinion concerning two questions submitted by judges with respect to their obligations to perform or not perform same-sex marriages. The questions were posed by Judge William Grim, president of the Association of Municipal and County Judges of Ohio (AMCJO).
The Board of Professional Conduct received inquiries from judges and a judicial association on behalf of its members seeking guidance concerning the obligation of a judge to perform same-sex civil marriages: 1) whether a judge who is authorized to perform marriages may refuse to marry same-sex couples based on personal, moral, or religious beliefs, but continue to marry opposite-sex couples; 2) whether a judge may decline to perform all marriages to avoid marrying same-sex couples.
Opinion 2015-1 (Judicial Performance of Civil Marriages of Same-Sex Couples) was issued and comes to the following conclusions as it pertains to what the obligations are concerning the performance of civil marriage ceremonies involving same-sex marriages.
According to the syllabus of the opinion – a judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs.
The conclusion reads: “A judge who performs civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages, based upon his or her personal, moral, and religious beliefs, acts contrary to the judicial oath of office and Judicial Conduct Rules 1.1, 1.2, 2.2, 2.3, 2.4, 2.11, and Professional Conduct Rule 8.4(g).
“A judge who takes the position that he or she will discontinue performing all marriages, in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs, may be interpreted as manifesting an improper bias or prejudice toward a particular class. The judge’s decision also may raise reasonable questions about his or her impartiality in legal proceedings where sexual orientation is at issue and consequently would require disqualification under Judicial Conduct Rule 2.11. 2.”
The Daily Times sought an interpretation of the opinion from Portsmouth Municipal Court Judge Steve Mowery.
“Judges carry their own certain beliefs and ideas with them to their place of employment, to the bench,” Mowery said. “But the oath of office for judges requires that we set aside all prejudices, bias, our own personal beliefs and experiences and apply the law equally and fairly to all. When you take that oath and you’re elected by the people that sit there in your jurisdiction, you are serving everybody in that jurisdiction and everybody in that jurisdiction, whether they agree with you or not, are entitled under the law to be treated fairly and equally.”
Mowery said he does not disagree with the opinion.
“I believe it is the proper decision,” Mowery said. “I’m glad that they’ve given guidance.”
Reach Frank Lewis at 740-353-3101, ext. 1928, or on Twitter @franklewis.