Judges who wed couples can’t refuse same-sex unions, ABA ethics opinion says

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Judges who perform marriages may not refuse to perform marriages for same-sex couples, according to a recently released formal ethics opinion from the American Bar Association’s Standing Committee on Ethics and Professional Responsibility. Judges not only must follow the law but also must act impartially and free from bias or prejudice, the opinion says.

Formal Opinion 485 relies on several provisions of the Model Code of Judicial Conduct to support its conclusions, including Model Rule 1.1, which provides that “[a] judge shall comply with the law, including the Code of Judicial Conduct.” Additionally, Model Rule 2.2 requires a judge to “uphold and apply the law” and to “perform all duties of judicial office fairly and impartially.”

A press release on the opinion is here.

Furthermore, Model Rule 2.3(A) provides that “[a] judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.” More specifically, Model Rule 2.3(B) provides:

“A judge shall not, in the 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.”

“The public is entitled to expect that judges will perform their activities and duties fairly, impartially, and free from bias,” the opinion reads. “Further, while actual impartiality is necessary, it is not sufficient; the public must also perceive judges to be impartial.”

Judges follow precedent, and the U.S. Supreme Court has ruled that bans on same-sex marriages are illegal. This means that if judges perform opposite-sex marriages, they also must perform same-sex marriages. The court’s landmark decision in Obergefell v. Hodges (2015) found bans on same-sex marriages violated the equal protection and due process clauses of the 14th Amendment. The majority wrote that “there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.”

While the ABA opinion says judges must not discriminate by only performing opposite-sex marriages, the opinion does not go so far as to say that judges cannot refrain from performing any marriages. “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,” the opinion reads.

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