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 delcine to perform all marriages in order to avoid marrying same-sex couples based on his or personal, moral, or religious beliefs.The Board's opinion is available at http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2015/Op_15-001.pdf.
The Board of Professional Conduct is a 28-member body appointed by the Supreme Court of Ohio. It consists of 17 lawyers, seven judges, and four non-lawyers. One of the Board's duties is to issue advisory opinions on matters of attorney and judicial ethics. The Board does not issue a lot of opinions. In each of 2013 and 2014 it issued only four advisory opinions; in 2012 it issued three. The Board's recent opinion regarding a judge's duty to perform same-sex marriages was its first advisory opinion of 2015.
This opinion was triggered by the action of Toledo Municipal Judge C. Allen McConnell, who announced on July 6 that in light of his religious opposition to same-sex marriage he would refuse to perform those marriages, and that he had asked to be relieved of the duty to perform any marriages. See Toledo Judge Declined to Marry Couple Over Christian Beliefs: Same-Sex Couple's Marriage Delayed, Toledo Blade (July 8, 2015).
The Ohio Board of Professional Conduct does not have the power to interpret the law. It only has the authority to construe the various rules and ethical codes that govern the conduct of judges. However, those ethical rules require judges to perform their duties under the law impartially. The Board noted that the United States Supreme Court ruled in Obergefell v. Hodges that under the Constitution same-sex couples have the same right to marry as opposite-sex couples, and that this is therefore the law of the land. If a judge were to refuse to perform same-sex marriages it would be evidence of bias and prejudice that could disqualify a judge from deciding any case involving same-sex couples or sexual orientation. The Board said that the same would be true if a judge refused to perform any marriages at all after Obergefell; this too would be evidence of bias and prejudice.
The language used by the Board in its opinion was striking in several respects. First, the Board exhibited a high degree of respect towards same-sex couples. The Board consistently used the term "same-sex marriage," not "gay marriage" or "homosexual marriage," and the Board contrasted "same-sex marriage" with "opposite-sex marriage," not with "traditional marriage." Second, the Board did not elevate religious beliefs above moral or political or social or cultural beliefs. It consistently referred to "personal, moral, or religious beliefs" as inadequate to justify a judge from following the law.
More than 30 years ago I had the honor of serving as a law clerk to the Honorable Leo A. Jackson of the Eighth District Court of Appeals for the State of Ohio. Part of my responsibility was to assist him in researching the law. I cannot count the number of times that Judge Jackson instructed me to "follow the law." Follow the law.
Wilson Huhn is a Distinguished Professor Emeritus who taught Constitutional Law at the University of Akron School of Law for over 30 years.