Judge Censured, Not Removed, For Refusal To Conduct Same-Sex Marriages

A judicial misconduct decision of the Wyoming Supreme Court

Judge Ruth Neely objects to the Wyoming Commission on Judicial Conduct and Ethics’ (Commission) recommendation that she be removed from her positions as municipal court judge and part-time circuit court magistrate because of her refusal to perform same-sex marriages in her judicial capacity as a part-time circuit court magistrate. We conclude, as have all the state judicial ethics commissions that have considered this question, that a judge who will perform marriages only for opposite-sex couples violates the Code of Judicial Conduct, and we hold that Judge Neely violated Rules 1.2, 2.2, and 2.3 of the Wyoming Code of Judicial Conduct. However, we do not accept the Commission’s recommendation for removal, and instead order public censure, with specific conditions.

The judge had sought guidance from the Judicial Ethics Advisory Committee by asking

Without getting in too deeply here, homosexuality is a named sin in the Bible, as are drunkenness, thievery, lying, and the like. I can no more officiate at a same sex wedding than I can buy beer for the alcoholic or aid in another person’s deceit. I cannot knowingly be complicit in another’s sin. Does that mean I cannot be impartial on the bench when that homosexual or habitual liar or thief comes before me with a speeding ticket? Or the alcoholic appears before me for yet another charge of public intoxication? No. Firmly, no. I have been the municipal court judge for the Town of Pinedale for over 20 years; and there has not been one claim of bias or prejudice made by anyone who has come before me. Not the homosexual, not the alcoholic, not the liar, not the thief. Not one.

No answer was forthcoming.

The court majority

Our conclusion that Judge Neely’s expressed refusal to conduct same-sex marriages violates the Code of Judicial Conduct is in line with every other tribunal that has considered the question. The judges in In re Matter of: The Honorable Gary Tabor and In re Roy S. Moore, were disciplined for their conduct. Five state advisory commissions offered opinions, consistently stating that a judge may not perform judicial functions for some parties while declining to perform them for same-sex couples without violating the Code of Judicial Conduct: Supreme Court of Ohio, Board of Professional Conduct, Opinion 2015-1, Judicial Performance of Civil Marriages of Same-Sex Couples (August 7, 2015) (a judge may not decline to perform same-sex marriages, and may not  decline to perform all marriages in order to avoid marrying same-sex couples); Supreme Court of Wisconsin, Judicial Conduct Advisory Committee, Opinion No. 15-1 (August 18, 2015) (judge may not decline to perform only same-sex marriages, but may decline performing all marriages); Arizona Supreme Court, Judicial Ethics Advisory Committee, Revised Advisory Opinion 15-01, Judicial Obligation to Perform Same-Sex Marriages (March 9, 2015) (judge may not distinguish between same-sex and opposite-sex couples); Nebraska Judicial Ethics Committee Opinion, Opinion 15-1 (June 29, 2015) (a judge who is willing to perform traditional marriage manifests bias or prejudice by refusing to perform same-sex marriage); Judicial Conduct Board of Pennsylvania Newsletter, Impartiality in Solemnizing Marriages, by Elizabeth A. Flaherty, Deputy Counsel, Judicial Conduct Board (No. 3 Summer 2014) (judge who decides not to perform wedding ceremonies for same-sex couples must opt out of officiating at all wedding ceremonies). Only in Mississippi Comm’n on Judicial Performance v. Wilkerson, 876 So.2d 1006, 1016 (Miss. 2004), did the tribunal find that a judge’s comments disparaging gays and lesbians did not violate the Code of Judicial Conduct. But there, only the judge’s speech as a private citizen was at issue; not his conduct as a judge, and there was no issue of performing marriages. See Boland, 975 So.2d at 892 (distinguishing Wilkerson on basis that judge in Boland made remarks while acting in her judicial capacity).

Sanction

Weighing these factors, we find that Judge Neely’s misconduct warrants a public censure. We further find that Judge Neely must perform her judicial functions, including performing marriages, with impartiality. She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies. This does not mean, as the dissent suggests, that no judge can now turn down any request to perform a marriage. What it means is that no judge can turn down a request to perform a marriage for reasons that undermine the integrity of the judiciary by demonstrating a lack of independence and impartiality. This is no different than allowing parties to exercise the right to peremptory challenges of jurors for any reason, while prohibiting them from challenging jurors on the basis of race or gender…

We decline to remove Judge Neely from her position as a municipal court judge; such a punishment would “unnecessarily circumscribe protected expression,” and we are mindful of our goal to narrowly tailor the remedy.

Justice Kautz dissented

This case is of the utmost importance to the State of Wyoming. It is a case confronting new and challenging issues, where the parts of the legal landscape recently changed dramatically and rapidly.16 Contrary to the position asserted by the majority opinion, this case is about religious beliefs and same sex marriage. The issues considered here determine whether there is a religious test for who may serve as a judge in Wyoming. They consider whether a judge may be precluded from one of the functions of office not for her actions, but for her statements about her religious views. The issues determine whether there is room in Wyoming for judges with various religious beliefs. The issues here decide whether Wyoming’s constitutional provisions about freedom of religion and equality of every person can coexist. And, this case determines whether there are job requirements on judges beyond what the legislature has specified…

There is no cause for discipline in this case, nor for concern if Judge Neely is not disciplined or precluded from performing marriages. Same sex couples have full access to marriage, all persons before the courts can be certain of an unbiased and impartial judiciary, and religious individuals can remain in public office even if they hold a traditional religious view of marriage. Judicial positions are filled without either side insisting on a religious test for who may serve. There is room enough in Wyoming for both sides to live according to their respective views of sex, marriage and religion.

I respectfully dissent, and would find that Judge Neely did not violate the Wyoming Code of Judicial Conduct.

Justice Davis joined the dissent.

The judge had sought summary judgment in the judicial misconduct proceeding.

The motion explains comments made to a reporter that had led to the action

On Friday, December 5, 2014, Judge Neely was attempting to hang Christmas lights outside her home. Frustrated with the project, she came inside to untangle a hopelessly intertwined strand of lights. Judge Neely checked her cell phone and saw that she missed a call from an unknown number. She almost immediately returned the call, as is her habit because unknown numbers are often from people attempting to reach her about official town work.

Upon dialing the unknown number, Judge Neely reached Ned Donovan. She identified herself, and Mr. Donovan informed her that he was the person who had called her. He told Judge Neely that he was a reporter for the Pinedale Roundup and asked if she was excited to be able to start performing same-sex marriages. Judge Neely, distracted at the time, struggling to remove her bulky winter clothing and holding an armload of Christmas lights, did not immediately recall Judge Haws’s earlier guidance to refrain from commenting on the matter. She reflexively and truthfully answered Mr. Donovan’s question, telling him that her religious belief that marriage is the union of one man and one woman precludes her from officiating at same-sex weddings. Mr. Donovan then proceeded to ask Judge Neely more about her personal views regarding marriage.  During the remainder of that call, Judge Neely told Mr. Donovan that other government officials in town were willing to perform same-sex marriages, that she had never been asked to perform one, and that she had never denied anyone anything. (citations to record omitted)

(Mike Frisch)