On Valentine’s Day, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 485, entitled “Judges Performing Same-Sex Marriages,” stating that judges may not decline to perform marriages for couples of the same sex. The ABA based its analysis on the Model Code of Judicial Conduct and recent judicial and legislative precedents, specifically a judge’s obligation to uphold the law, perform judicial duties without bias or prejudice, and preserve the impartiality of the judiciary. The Opinion further discusses how this obligation applies both in jurisdictions where performing marriages is a mandatory judicial duty, and in jurisdictions where the marriage function is a discretionary duty.
Judges have a duty to comply with and uphold the law. Model Rule 1.1 of the Model Code of Judicial Conduct obligates judges to comply with the law, and Model Rule 2.2 requires judges to apply and uphold all laws. The United States Supreme Court’s landmark 2015 decision in Obergefell v. Hodges (135 S. Ct. 2584 (2015)), established as law that the Fourteenth Amendment to the United States Constitution prohibits states or state officials from refusing marriage licenses to same-sex couples. Following that decision, it is clear that no judge can refuse to marry a same-sex couple, because such a refusal would be a failure to comply with law in direct violation of Model Rules 1.1 and 2.2.
The Opinion also cites a judge’s further obligation, pursuant to Model Rule 2.3, to perform his or her judicial duties “free from bias or prejudice.” Model Rule 2.3(A) includes a general obligation to discharge duties of the judicial office with impartiality, while Model Rule 2.3(B) prohibits judges from “manifesting bias or prejudice based on people’s sex, gender, sexual orientation or marital status.” If a judge were to perform marriage ceremonies for only different-sex individuals and not for same-sex individuals, this distinction would represent a bias or prejudice against same-sex individuals in general, and specifically as a result of their sexual orientation.
It is fundamental to the integrity of the judicial system that the public have faith in the impartiality of the judiciary. The public expects judges to be fair, impartial, and unbiased. Indeed, the Model Code of Judicial Conduct contains numerous obligations to the effect that judges must avoid conduct that is, or is perceived to be biased or prejudiced. The...
