Can an Ohio judge refuse to perform same-sex marriages while still performing opposite-sex ones?

Plain-English summary

Issued shortly after Obergefell v. Hodges, the opinion answered inquiries from judges and a judicial association about whether a judge who is authorized to perform civil marriages may refuse to marry same-sex couples on personal, moral, or religious grounds, or may instead stop performing all marriages to avoid them. The Board treated performing a civil marriage as a judicial duty subject to the Code of Judicial Conduct, while expressly declining to decide the separate legal question of whether the marriage statutes are mandatory or permissive.

The Board concluded that refusing to marry same-sex couples while still marrying opposite-sex couples contravenes the judicial oath of office and several rules: Jud. Cond. R. 1.1 (compliance with the law, which includes binding decisional law such as Obergefell), 1.2 (promoting confidence in the judiciary and avoiding impropriety), 2.2 (impartiality, applying the law whether or not the judge approves of it), 2.3 (no bias or prejudice, including based on sexual orientation), and 2.4 (no influence by public clamor or outside interests). It also tied the conduct to Prof. Cond. R. 8.4(g), which bars a lawyer from engaging in discrimination prohibited by law.

The Board further concluded that a judge who declines to perform some or all marriages on these grounds may appear to hold a bias based on sexual orientation, which could require disqualification under Jud. Cond. R. 2.11 in later matters where sexual orientation is at issue (for example, a domestic-violence case involving a same-sex couple). It also noted obligations not to let such beliefs affect administrative duties, employment decisions, or the conduct of court staff, and warned that judges declining all marriages can limit public access to a fundamental right. The Board declined to address case-management or judge-assignment procedures.

In practice

The opinion holds that, under the Ohio Code of Judicial Conduct, a judge who exercises the authority to perform civil marriages must perform them without regard to the couple's sex; the judge may not refuse same-sex couples while marrying opposite-sex couples, nor stop performing all marriages to avoid same-sex couples, where the motive is personal, moral, or religious objection. Per the opinion, such conduct also bears on disqualification under Jud. Cond. R. 2.11 in later cases where sexual orientation is at issue.

Common questions

Q: Can a judge who performs weddings decline to marry same-sex couples on religious grounds?

A: The opinion concluded no; refusing same-sex couples while marrying opposite-sex couples violates the oath of office and Jud. Cond. R. 1.1, 1.2, 2.2, 2.3, 2.4, and 2.11, and implicates Prof. Cond. R. 8.4(g).

Q: Can a judge avoid the issue by simply not performing any marriages?

A: The opinion concluded that a judge who stops performing all marriages to avoid same-sex couples may be seen as manifesting bias against a class, and may face disqualification questions in later proceedings.

Q: Does declining same-sex marriages affect a judge's other cases?

A: The opinion concluded yes; under Jud. Cond. R. 2.11 the judge may have to disqualify in matters where sexual orientation is at issue, because impartiality could reasonably be questioned.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct, Rules 1.1, 1.2, 2.2, 2.3, 2.4, and 2.11, together with Prof. Cond. R. 8.4(g) (Model Rule 8.4, discrimination). It applies these in light of Obergefell v. Hodges, treating compliance with binding constitutional decisional law as part of a judge's duty under Jud. Cond. R. 1.1.

Citations and references

Rules of Professional Conduct and Judicial Conduct:

• Ohio Jud. Cond. R. 1.1 (compliance with the law)
• Ohio Jud. Cond. R. 1.2 (confidence in the judiciary; avoiding impropriety)
• Ohio Jud. Cond. R. 2.2 (impartiality and fairness)
• Ohio Jud. Cond. R. 2.3 (bias, prejudice, and harassment)
• Ohio Jud. Cond. R. 2.4 (external influences)
• Ohio Jud. Cond. R. 2.11 (disqualification)
• Ohio Prof. Cond. R. 8.4(g) (discrimination) (Model Rule 8.4)

Cases:

• Obergefell v. Hodges, 576 U.S. 644 (2015), fundamental right to marry
• Cleveland Bar Assn. v. Cleary, 93 Ohio St.3d 193, 2001-Ohio-1326, judge enforcing personal beliefs
• State v. Arnett, 88 Ohio St.3d 208, 2000-Ohio-302, biblical references and bias

Other opinions cited:

• Neb. Jud. Ethics Adv. Op. 2015-1; Ariz. Jud. Adv. Op. 2015-1; La. Comm. on Jud. Ethics (2015): same-sex marriage and judicial duty

See also

• Ohio BPC Op. 2014-001: Judicial Disqualification When Counsel Works on the Judge's Campaign
• Ohio BPC Op. 2011-003: Judge Endorsing a Candidate for Bar Association Office

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_15-001.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov

PAUL M. DE MARCO RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL

                                                                              HEIDI WAGNER DORN
                                                                                    COUNSEL



                                   OPINION 2015-1
                                 Issued August 7, 2015

                     Judicial Performance of Civil Marriages
                               of Same-Sex Couples

SYLLABUS: 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.

QUESTIONS PRESENTED: 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.

APPLICABLE RULES: Jud. Cond. R. 1.1, 1.2, 2.2, 2.3, 2.4, 2.11, and Prof. Cond. R. 8.4(g).

OPINION:

Background

    On June 26, 2015, the U.S. Supreme Court found the right to marry the person of

one’s choice to be a fundamental right under the Fourteenth Amendment of the United
States Constitution. The laws of several jurisdictions, including Ohio that restricted
marriage to only opposite-sex couples were declared unconstitutional. Obergefell v. Hodges,
___ U.S.___, 35 S. Ct. 2584, 192 L.Ed.2d 609 (2015). The Supreme Court specifically held that
state laws restricting same-sex marriage are “invalid to the extent they exclude same-sex
couples from civil marriage on the same terms and conditions as opposite-sex couples.” Id.
Op. 2015-1 2

Obergefell is considered the law of the land and applies equally across all jurisdictions. See
Marbury v. Madison, 5 U.S. 137, 180 2 L.Ed. 60 (1803).

   In Ohio, municipal, county, and probate judges are specifically authorized by statute

to perform civil marriage ceremonies. R.C. 1907.18(C), 1901.14(A)(1), 2101.27, and 3101.08.
Whether judges are mandated or authorized by the Ohio Revised Code to perform civil
marriages is a legal question and beyond the scope of the advisory opinion authority
granted to the Board by the Supreme Court of Ohio. Gov. Bar R. V, Section 2(D), BPC Reg.
15(B)(1).1 However, the General Assembly has granted judges the authority to perform
marriages because of the unique public office that they hold. When a judge performs a civil
marriage ceremony, the Board concludes that the judge is performing a judicial duty and
thus is required to follow the Code of Judicial Conduct in the performance of that duty.

Judicial Oath of Office

   Every judge is required to take an oath prior to each term of office in a form

prescribed by R.C. 3.23:

            I, (name), do solemnly swear that I will support the
            Constitution of the United States and the Constitution of Ohio,
            will administer justice without respect to persons, and will
            faithfully and impartially discharge and perform all of the
            duties incumbent upon me as a judge according to the best of
            my ability and understanding. [This I do as I shall answer
            unto God.]

    The oath represents the judge’s solemn and personal vow that he or she will

impartially perform all duties incumbent on the office and do so without regard to the
status or class of persons or parties who come before the court. The oath is a reflection of
the self-evident principle that the personal, moral, and religious beliefs of a judicial officer
should never factor into the performance of any judicial duty. When a judge takes the oath
of office, “he or she yields the prerogative of executing the responsibilities of the office on
any basis other than the fair and impartial and competent application of the
law….” Mississippi Judicial Performance Com’n v. Hopkins, 590 So.2d 857, 862 (Miss. 1991).

1The Board may only issue nonbinding advisory opinions regarding the application of the Supreme Court
Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary of
Ohio, the Ohio Rules of Professional Conduct, the Code of Judicial Conduct, or the Attorney’s Oath of Office.
Op. 2015-1 3

   A judge’s oath to support the constitutions of the United States and the State of Ohio

requires the judge to recognize and adhere to binding court interpretations of the same. A
judge’s unilateral decision to refuse to perform same-sex marriages based on his or her own
personal, religious, or moral beliefs ignores the holding in Obergefell and thus, directly
contravenes the oath of office.

Code of Judicial Conduct

Jud. Cond. R. 1.1—Compliance with the law

   Jud. Cond. R. 1.1 requires a judge to comply with the law. A judge is always

required to comply with the law and has a higher duty than ordinary citizens to comply.
Disciplinary Counsel v. Connor, 105 Ohio St.3d 100, 2004-Ohio-6902. The definition of “law”
encompasses court rules, the Code of Judicial Conduct, the Rules of Professional Conduct,
statutes, constitutional provisions, and decisional law. Jud. Cond. R., Terminology.
Consequently, a judge is required to comply with the U.S. Constitution and binding
decisional law interpreting its provisions. 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.

Jud. Cond. R. 1.2—Independence, integrity, and impartiality of the judiciary

   Jud. Cond. R. 1.2 requires a judge to “act at all times in a manner that promotes

public confidence in the independence, integrity, and impartiality of the judiciary. . . .”
This requirement applies to all professional and personal conduct of a judge. Jud. Cond. R.
1.2, Comment [1]. In satisfying this responsibility, a judge “must accept the restrictions
imposed by the Code” (Jud. Cond. R. 1.2, Comment [2]), including provisions that require a
judge to set aside his or her own personal, moral, and religious beliefs in the fair, impartial,
and unbiased performance of judicial duties. 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.

   Jud. Cond. R. 1.2 also requires a judge to “avoid impropriety and the appearance of

impropriety.” An act of impropriety occurs when a judge violates the law or provisions of
the Code of Judicial Conduct. Jud. Cond. R. 1.2, Comment [5]. 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. See, e.g., In re Tabor, Case No. 7251-F-158, Wash. St. Comm. on
Jud. Cond. (October 4, 2013) (judge was publicly admonished for creating an appearance of
Op. 2015-1 4

impropriety by stating opposition to same-sex marriages and subsequently refusing to
perform all marriages under a discretionary state statute.) A determination by a judge that
he or she will marry only opposite-sex couples undermines the holding in Obergefell and
runs counter to the requirement of Jud. Cond. R. 1.2 to avoid impropriety and the
appearance of impropriety.

Jud. Cond. R. 2.2—Impartiality and fairness

   A judge is required to “perform all duties of judicial office fairly and impartially”

and “apply the law without regard to whether the judge approves or disapproves of the
law in question.” Jud. Cond. R. 2.2, Comment [2]. In Cleveland Bar Ass’n. v. Cleary, 93 Ohio
St.3d 193, 2001-Ohio-1326, a judge was suspended for six months after she denied a
pregnant defendant’s post-conviction motion for probation and continued her prison
sentence in order to prevent the defendant from having an abortion. The Supreme Court
reasoned that the judge had revealed bias toward the defendant based on conduct she
thought was morally inappropriate. The Court found that the judge improperly used the
sentencing proceeding to enforce her personal beliefs against abortion in violation of
former Canon 3(B)(5). The provisions of the former rule are now found in Jud. Cond. R. 2.2
and 2.3.

    “A judge is free to hold his or her own personal beliefs, so long as those attitudes,

prejudices, or beliefs are not translated into action or inaction that results in a violation of
the Code of Judicial Conduct or of law.” Cleary at 201 citing In re Inquiry Concerning a Judge,
357 So.2d 172, 177-178 (Fla.1978). A judge who displays disapproval of statutory or
decisional law by refusing to enforce or follow the law because of personal, moral, and
religious beliefs demonstrates a lack of the fairness and impartiality required by Jud. Cond.
R. 2.2 and the judge’s oath of office.

Jud. Cond. R. 2.3—Manifesting bias and prejudice

    Jud. Cond. R. 2.3(A) requires a judge to “perform the duties of judicial office,

including administrative duties, without bias or prejudice.” A judge should avoid all
conduct that “may reasonably be perceived as prejudiced or biased.” Jud. Cond. R. 2.3,
Comment [2]. Jud. Cond. R. 2.3(B) prohibits a judge from exhibiting bias or prejudice
based upon a number of enumerated traits or characteristics, including sexual orientation.
If a judge manifests bias or prejudice in any proceeding, he or she may bring disrepute to
their office and to the judiciary as a whole. Jud. Cond. R. 2.3, Comment [1].

  These provisions bear directly on a judge’s decision to perform same-sex marriages.

A judge who is willing to perform marriages of only opposite-sex couples because of his or
Op. 2015-1 5

her personal, moral, or religious beliefs, may be viewed as possessing a bias or prejudice
against a specific class or group of people based on sexual orientation. Exhibiting bias or
prejudice in the performance of judicial duties is antithetical to a core tenet of judicial office
and erodes the public’s confidence in the independence, integrity, and impartiality of the
judiciary. In addition, a judge’s conduct may run afoul of Prof. Cond. R. 8.4(g), which
prohibits any lawyer from engaging in discrimination prohibited by law.

   In State v. Arnett, 88 Ohio St.3d 208, 2000-Ohio-302, the Supreme Court considered a

case in which the trial judge quoted from the Bible during the sentencing of a defendant.
The Court ultimately concluded that the biblical quote and other references did not form
the basis for the sentence and thus did not result in reversible error. However, the Court
issued a cautionary reminder that similar comments made by judges could represent a
manifestation of bias and prejudice contrary to the mandates of the Code of Judicial
Conduct.

Jud. Cond. R. 2.4—External influences on judicial conduct

   Jud. Cond. R. 2.4(A) and (B) require a judge to avoid being swayed “by public

clamor or fear of criticism” in the performance of his or her judicial duties and to avoid
permitting outside interests and relationships to influence the judge’s conduct or judgment.
This mandate reflects another tenet essential to an independent judiciary—that a judge is
obligated to follow and apply the law without regard to whether the law is “popular or
unpopular with the public, the media, government officials, or the judge’s friends or
family.” Jud. Cond. R. 2.4, Comment [1]. A judge who permits these external factors to
influence his or her execution of a judicial function erodes public confidence in the
judiciary. Id.

Impact on other functions or duties of judicial office

   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 is required to “disqualify himself
or herself in any proceeding in which the judge’s impartiality might reasonably be
questioned” and specifically where the judge has a personal bias or prejudice concerning a
party. Jud. Cond. R. 2.11(A) and (A)(1). 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. 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.
Op. 2015-1 6

   For example, if a judge who has declined to perform same-sex marriages is later

assigned to hear a misdemeanor domestic violence charge involving a same-sex couple, the
judge’s ability to follow the law and impartially apply the domestic violence laws could
reasonably be questioned. This same result obtains if a judge has maintained a position
that he or she will perform only opposite-sex marriages. Under either scenario, if the
judge’s refusal to marry same-sex couples equates to the judge possessing or appearing to
possess a personal bias or prejudice toward persons based on sexual orientation, he or she
is required under Jud. Cond. R. 2.11 to disqualify himself or herself from the proceeding.
As such, 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 functions and duties.

    A judge should further be mindful of the requirement under Jud. Cond. R. 2.3(A) to

perform administrative duties without bias or prejudice despite the judge’s personal,
moral, and religious beliefs. A judge may not allow sexual orientation to affect
employment decisions (Jud. Cond. R. 2.13) or the judge’s treatment of court personnel,
court officials, attorneys, and jurors, despite the judge’s personal beliefs about sexual
orientation. Jud. Cond. R. 2.3(B). Likewise, a judge must never permit court staff or court
officials under his or her direction or control to engage in discriminatory conduct based on
sexual orientation or act in a manner inconsistent with the judge’s obligations under the
Code. Jud. Cond. R. 2.3(B). A judge must be aware of the impact that his or her own
conduct or perceptions concerning same-sex couples may have on the manner in which
court employees conduct their job responsibilities.

     Finally, a judge should be cognizant of the impact a decision to decline to perform

all civil marriage ceremonies has on the public’s perception of the judiciary. Regardless of
whether the statutes authorizing the performance of civil marriages are deemed mandatory
or permissive, the statutes reflect the legislative intent to grant citizens the opportunity to
obtain a civil marriage from designated public officials. 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.

   The principles set forth in this advisory opinion are not novel. Rather, they are a

restatement of core tenets that have long governed judicial conduct and continue to guide
the proper and ethical performance of a judge’s constitutional and statutory obligations.
Ethics authorities in other jurisdictions that have analyzed the same questions presented to
this Board have reached similar conclusions: Neb. Adv. Op. 2015-1 (June 29, 2015) (the
refusal to marry a same-sex couple based upon sexual orientation manifests bias and
Op. 2015-1 7

prejudice and is prohibited under the Code of Judicial Conduct); Az. Adv. Op. 2015-1
(March 9, 2015) (the performance of a marriage is a discretionary duty for Arizona judges,
but a judge may not decline to perform a same-sex marriage, while continuing to perform
opposite-sex marriages without violating Rules 2.2 and 2.3(B) of the Code of Judicial
Conduct); La.Comm. on Jud. Ethics (July 14, 2015) (judge may not refuse to conduct same-
sex marriages while continuing to perform opposite-sex marriages and a judge may not
recuse him/herself from matters ancillary to same-sex marriages based on sincerely held
beliefs); Pa.Jud.Comm., Newsletter (Summer, 2014) (a judge may not act in a discriminatory,
biased, and prejudiced manner toward a same-sex couple regarding the performance of a
marriage. If a judge decides not to perform any marriages, a change from past conduct
may be interpreted as bias and prejudice against a specific class.)

CONCLUSION: 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 Jud.
Cond. R. 1.1, 1.2, 2.2, 2.3, 2.4, 2.11, and Prof. Cond. R. 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 Jud. Cond. R. 2.11. 2

Advisory Opinions of the Board of Professional Conduct are informal, nonbinding
opinions in response to prospective or hypothetical questions regarding the application
of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court
Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the
Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

2 The Board declines to address questions concerning the recommended case management procedures or

requirements for the assignment or rotation of judges conducting marriages at a court. See fn. 1, supra.