BY ARTHUR S. LEONARD | Among those public officials and religious officiants eligible to perform marriage ceremonies in New York State are judges. Some judges don’t do marriages, others limit them to family members and acquaintances, while some are basically available upon reasonable request.
But, as with other officials who play some role in the administration of marriages, the question arises whether there is a legal or ethical violation if a judge refuses to perform a marriage between same-sex partners, out of the judge’s own religious, ethical, or political opposition to them.
One judge, who remains anonymous, submitted questions to the New York State Advisory Committee on Judicial Ethics, a body established by law, seeking guidance on the matter, and got back muck. The Committee, whose opinion was posted on the New York Law Journal’s website on January 13, refused to bite the bullet and give clear ethical advice.
The judge posed these questions:
1. May I ethically refuse to conduct same-sex marriages?
2. If I continue to perform male/ female marriages, may I ethically refuse to conduct same-sex marriages?
3. May I refuse to conduct all marriages?
4. May I refuse to conduct same-sex marriages if I provide the contact information of others (including judges or civil officers) who are willing to conduct same-sex marriages?
5. May I limit weddings that I conduct to those people who are friends or relatives?
The key to the answer is that judges are not required to conduct marriages and that conducting marriages are not part of their official duties of office. They have the privilege of conducting marriages, but not the obligation. But if they decide to exercise the privilege, must they do it in a non-discriminatory manner or otherwise run afoul of ethical standards?
The Committee’s answers, after reciting a bunch of general propositions, were clearest regarding questions 3 and 5:
“In the Committee’s view, the Rules Governing Judicial Conduct do not, by their terms, require judges to perform marriages. Accordingly, unless a judge is required by law to perform marriages, the Committee sees no impropriety if a judge declines to conduct all marriages.
“Similarly, it is permissible consistently to decline to conduct marriages for anyone who is not a friend or relative, as such a policy honors the judge’s time constraints and does not raise reasonable questions about invidious discrimination, bias, or prejudice.”
But, regarding the really key questions — 1, 2, and 4 — the Committee essentially punts:
“The new Marriage Equality Act declares that ‘marriage is a fundamental human right’ and amends the Domestic Relations Law to provide that ‘a marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex.’ The overall statutory scheme continues to provide, as it did before, that ‘No marriage shall be valid unless solemnized by’ one of a list of public officials, including, among others, “a justice or judge of a court of the unified court system.’
“In the committee’s view, Questions 1, 2, and 4 raise serious legal issues relating to statutory and constitutional interpretation, questions which are both unsettled and highly controversial. The Committee is not empowered to answer such questions… Therefore, with respect to Questions 1, 2, and 4, the Committee can state only that if the inquiring judge acts in conformity with the governing constitutional and statutory law concerning same-sex marriage and sexual orientation, the judge will not violate the Rule Governing Judicial Conduct. These legal issues, to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue.”
This opinion — essentially to abstain from addressing the ethical issue until such time as a court has resolved the legal question in an appropriate proceeding, presumably a discrimination claim brought by a same-sex couple who are turned away by a judge — was put forward even as the Committee noted that “a judge must not engage in extra-judicial activities that will cast reasonable doubt on the judge’s capacity to act impartially as a judge” and that state law forbids discrimination on the basis of sexual orientation.
Of course, the question whether that ban on sexual orientation discrimination applies to judges acting in their voluntary capacity as marriage officiants is, as the Committee indicates, a question yet to be answered. Is a judge a “public accommodation” when acting as a marriage officiant?
I would be curious to know whether the Committee would think a judge is acting unethically if he or she declines to perform mixed-race marriages while being generally happy to perform marriages in which both parties are of the same race?
Statutory bans against mixed-race marriages have been considered unconstitutional nationwide since 1967, but is it unethical for judges to refuse to perform them? If so, why — after New York has legislatively stated that the right to marry a partner of the same sex is a fundamental right here — is it not unethical for judges who would otherwise be available and willing to perform marriages to turn down a request because the parties are of the same sex.
I think the Committee is hiding behind the question of legality — and what is ethical is not invariably tied to what is legal. At the same time, its reticence is not surprising given the sensitive nature of the underlying question. If judges were deemed to be public accommodations for purposes of voluntary wedding officiating, the ethics of the matter would follow from that. Otherwise, the ethics of the situation remain unaddressed.
Arthur S. Leonard is professor of law at New York Law School and editor of Lesbian/ Gay Law Notes.