The Supreme Court of Ohio’s Board of Professional Conduct has issued advisory opinion 2015-1. The Board concludes that in its opinion “A judge who exercises the authority to perform civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages. A judge may not decline to perform all marriages in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs. ”
In the opinion of the Board the oath of office to uphold the state and federal constitutions, and the Code of Judicial Conduct’s injunction to comply with the law (Jud. Cond 1.1) ) act fairly and impartially (Jud. Cond. R. 2.2), and act without “bias of prejudice (Jud. Con. 2.3) compel the conclusion that a judge may not refuse to perform same sex marriages while performing heterosexual marriages.
One conservative Catholic, Richmond law prof Kevin C. Walsh laments at Mirror of Justice blog that the opinion turns the judicial authority to perform marriages into a mandate. He further objects that the Ohio Board’s opinion “gets worse when it goes far beyond the holding of Obergefell in concluding, for example, that “[a] judge may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages.”
The opinion also reflects ignorance of the actual role of public opinion in the creation of new constitutional law these days when it brings in the requirement that judges “apply the law without regard to whether the law is ‘popular or unpopular with the public, the media, government officials, or the judge’s friends or family.'” Can anyone say with a straight face that Justice Kennedy, the author of Obergefell v. Hodges, himself applied the law without regard to all these factors? Aside from judges’ personal, moral, or religious beliefs about marriage, one good legal reason to avoid extending Obergefell beyond its holding is precisely to limit the damage done to the law when judges shape it to better conform with changed public opinion, as Justice Kennedy and his colleagues in the majority did in Obergefell.”
Walsh’s lambastes would be well founded, in my view, if a judge were asked to bless a same sex union contrary to her belief that such conduct is sinful. But of course the Board said no such thing. At the root of Walsh and like-minded critics’ view is a confusion of the sacred and the secular. The performance of a marriage is a ministerial, not a Ministerial function. Judges like other public employees cannot pick and choose among favorites based on legally irrelevant criteria. If the issue were granting permits to march based on the religious or anti-religious message of the march Walsh, et al. would certainly agree that a judge cannot pick and choose. But marriage evokes a different set of emotions and Walsh loses sight of the basic point.- gwc