JURIST Guest Columnist Jordan Lorence of Alliance Defending Freedom argues that a recent decision of Ohio Board of Professional Conduct compelling state judges to issue marriage licenses to same-sex couples is unreasonable and unaccommodating …

The Ohio Board of Professional Conduct has issued a scorched-earth policy against state judges who decide to stop performing all wedding ceremonies because they believe marriage is defined only as one man and one woman and cannot, in good conscience, conduct a ceremony joining together in marriage any other combination of people, including same-sex couples.

This is not only quite startling, it is overly harsh. Ohio law allows some judges and a number of other individuals to conduct wedding ceremonies. This is a discretionary, permissive authority the law grants judges. It is not one of their required duties. The law does not require judges to perform every wedding ceremony some couple might ask them to perform and the judges can decide not to perform wedding ceremonies. At least that is what the law says, but you would not know it by reading the opinion that the board issued on August 7.

The opinion states in its first paragraph

that [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.

This emphatic rule eliminates what seems like one of many reasonable, sensible accommodations for judges who hold to the sincere belief that marriage is defined only as one man and one woman. No accommodation possible. Perform all weddings, or else.

It is bizarre to say that judges show unethical bias if they choose not to do something state law says is merely discretionary and not one of their mandatory or essential duties. The board’s opinion buries the fact that, under Ohio law, conducting wedding ceremonies is a permissive power of judges, because to admit that would severely weaken the board’s extreme opinion.

Second, according to the US Supreme Court, government has a First Amendment “duty to accommodate” people with sincere religious beliefs. Other accommodations the government could or must grant to those with sincere beliefs about marriage may exist, but certainly, accommodating a believer’s conscience by allowing him or her to stop performing all weddings is eminently reasonable. The board’s opinion gives absolutely no accommodation of any kind to a judge who cannot in good conscience perform a totally nonessential act that many other judges, clergy persons and others legally qualified to perform marriage ceremonies would do.

Third, the board glosses over the fact that we are talking about a judge presiding over a ceremony. It would be bad enough if the opinion required judges to participate in a ceremony they disapproved of. Here, the board goes one step further into unconstitutional coercion by compelling unwilling judges to perform a ceremony they cannot condone because of their beliefs. Ohio law could not require a judge to recite the Pledge of Allegiance against his will. Certainly, Ohio law could not constitutionally require a judge to attend a religious ceremony, or even a secular ceremony, when attendance would violate the judge’s beliefs. Yes, judges are governmental officials, but they do not lose all of their rights to freedom of thought and belief.

Fourth, it seems odd if not outrageous that this opinion suddenly decrees that it is unethical for Ohio judges to decline to do something that was not legally permitted in their state until two months ago. Same-sex couples could not legally marry in Ohio until the US Supreme Court handed down the Obergefell decision in late June (the decision mandating same-sex marriage nationwide), so judges up until earlier this summer never had to confront this conflict between their permissive authority to conduct wedding ceremonies and their personal belief that marriage is defined only as one man and one woman. But now, according to the board, a judge’s decision to decline to conduct any wedding ceremonies at all indicates unlawful bias or prejudice:

A judge who takes the position that he or she will discontinue performing all marriages, in order to avoid marrying same-sex couples based on his or her personal, moral or religious beliefs, may be interpreted as manifesting an improper bias or prejudice toward a particular class. The judge’s decision also may raise reasonable questions about his or her impartiality in legal proceedings where sexual orientation is at issue and consequently would require disqualification under Jud. Cond. R. 2.11.

Again, it would seem that a reasonable way to accommodate the personal beliefs of the judge would be for him or her to choose to stop performing all weddings. Yet this is not enough for the board because, in its reasoning, the judge would be manifesting bias against same-sex couples that would call into question his or her neutrality in presiding over cases involving those couples. The board then chooses an inflammatory example of domestic battery to make its questionable point:

Even if a judge decides not to perform any marriages, but does so only after Obergefell, the judge may face the prospect of disqualification in matters where the sexual orientation of the parties is at issue. For example, if a judge who has declined to perform same-sex marriages is later assigned to hear a misdemeanor domestic violence charge involving a same-sex couple, the judge’s ability to follow the law and impartially apply the domestic violence laws could reasonably be questioned.

This outrageous example is difficult to understand, although the obvious smear is easy to grasp. If spouse A from a same-sex couple legally married in Ohio hits spouse B, the judge’s duty is to preside over a proceeding to determine whether spouse A is guilty of domestic battery and then punish the perpetrator. Hitting other people is wrong and criminal, regardless the aggressor’s marital status. I would be very surprised if a judge with the most conservative views on marriage possible would do anything other than give the accused a fair trial, and, if found guilty, impose appropriate punishment on spouse A. It would make no sense for a judge to rule: “spouse A, I am finding you not guilty of the crime of striking your partner because you are in a same-sex marriage.”

Similarly, in other legal cases, like breach of contract or a tort brought by a same-sex couple, it is difficult to imagine a judge ruling that a same-sex couple does not get damages from someone who breaches their contract or smashes into their car, because they are in a same-sex marriage. To assume such a judge has bias, with no evidence other than the fact he or she declined to preside at same-sex wedding ceremonies, unfairly slanders members of the judiciary with reasonable views and convictions about marriage.

And I doubt the board would apply its expansive rule to other beliefs. A judge may publicly state that his vegan beliefs mean he will never step into a restaurant serving meat or that he will attend football games only where the Cleveland Browns play, or that he will only send his children to a public school. That does not mean the judge could not decide cases involving people who eat steaks, or who root for the Pittsburgh Steelers, or who place their children in private schools. Those people would lack even a legitimate concern about receiving impartial justice from that judge, absent something specific that shows actual bias that will affect how the judge conducts the case.

The board’s opinion has the feel of a decree by a state church trying to root out heretics straying from the new ascendant orthodoxy on marriage. The voters of Ohio and its lawmakers, and even its state judges, should not allow this coercive opinion by the Board of Professional Conduct to remain.

Jordan Lorence is senior counsel with Alliance Defending Freedom, and has argued many cases in both state and federal court involving religious freedom, freedom of conscience, and marriage.

Suggested citation: Jordan Lorence, Ohio Board: State Judges Can’t Say, “I can’t Perform Wedding Ceremonies”, JURIST – Professional Commentary, September 1, 2015, http://jurist.org/professional/2015/09/jordan-lorence-wedding-ceremonies.php.