The American Bar Association (ABA) has issued a formal Ethics Opinion 485. This opinion states that even if a judge only performs marriages for friends and family that he or she may not discriminate by refusing to perform marriages for same-sex couples. The opinion states that the judge must follow the rules of Model Code of Judicial Conduct Rule 1.1, which states that “a judge shall comply with the law, including the Code of Judicial Conduct” and Model Rule 2.2 that requires the judge to “uphold and apply the law” and to “perform all duties of Judicial office fairly and impartially.”

Model Rule 2.3(A) provides that “a judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.” Model Rule 2.3(B) digs deeper into the matter by stating that “A judge shall not, in performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status or political affiliation, and shall not permit court staff, court officials or others subject to the judge’s direction and control to do so.”

This opinion by the ABA follows in the direction of the US Supreme Court decision in Obergerfell v Hodges (215) in which the Court found that bans on same-sex marriage violated the equal protection and due process clauses of the 14th Amendment. The Court held that “there is no lawful basis for a state to refuse to recognize a lawful same-sex marriage performed in another state on the grounds of its same-sex character.”

The Supreme Court of Ohio’s Board of Professional Conduct in 2015 stated that judges could not refrain from performing any marriages just to avoid performing same-sex marriages. The ABA opinion states that a judge can specify that he or she will only perform marriages for friends and family but if a friend or family member is seeking a same-sex marriage they cannot ethically refuse to perform the ceremony. If a jurisdiction provides that a judge has no obligation to perform any marriage, he or she may refuse to perform any marriage at all.

The rules and opinions discussed herein are designed to make the performance of a marriage a situation in which a judge cannot ethically perform only those ceremonies he or she determines but to perform all marriages or none.

Source ABA Journal April 2019