Law and Marriage

• Author: David L. Hudson Jr.
• Pages: 24-25

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

By David L. Hudson Jr.

Judges who perform marri ages

may not refuse to perfor m them for

same-sex couples, accord ing to a

Formal Ethics Opinion from t he ABA’s

Standing Commit tee on Ethics and

Professional Responsibilit y released

Feb. 14. Judges not only must follow

the law but also must act impar tially

and free from bias or prejudice, t he opinion explains.

The same anti-discr imination requirement applies even

if judges perform mar riages for only friends and family

members.

Formal Ethics Opinion 485 relies on sever al provisions

of the Model Code of Judicial Conduct to support its con-

clusions, including Model Rule 1.1, which provides that

“a judge shall comply with the law, including the Code of

Judicial Conduct.” Additiona lly, Model Rule 2.2 requires

a judge to “uphold and apply the law” and to “perform

all duties of judicial o ce fa irly and impartially.”

Furthermore, Model Rule 2. 3(A) pro-

vides that “a judge shall

perform the duties of

judicial o ce, includ-

ing administrative

duties, without bias or

prejudice.”

More specifi c ally,

Model Rule 2.3(B)

provides: “A judge shall not, in the performance of judi-

cial duties, by words or conduct mani fest bias or preju-

dice, or engage in haras sment, including but not limited

to bias, prejudice, or hara ssment based upon race, sex,

gender, religion, national origin, eth nicity, disability, age,

sexual orientation, ma rital status, socioeconomic stat us,

or political a li ation, and shall not permit court sta ,

court o cials, or ot hers subject to the judge’s direction

and control to do so.”

“The public is entitled to expec t that judges will per-

form their activ ities and duties fairly, impartially, and

free from bias,” the opinion reads. “F urther, while actual

impartialit y is necessary, it is not su cient; the public

must also perceive judges to be i mpartial.”

Professor Douglas NeJaime of Yale Law School agrees

with the bulk of the opinion’s analysis. “It cert ainly

seems consistent wit h principles of judicial ethics to

require judges who perform ma rriages to do so for both

di erent-s ex and same-sex couples so as not to

engage in discrimi natory conduct or give the

appearance of bias and prejudice ,” says

NeJaime, who teaches cla sses in legal

ethics and law and sexu ality.

The opinion mirrors precedent

from the U.S. Supreme Court’s

landmark decision in Obergefell

v. Hodges (2015), i n which

the court ruled t hat bans on

SHUTTERSTOCK

24 || ABA JOURNAL APRIL 2019

Ethics

Law and Marriage

Practice