Friday, January 13, 2012
Can a Judge Refuse to Conduct a Gay Marriage?
Here's one right in the Vischer wheelhouse. This is the question that an anonymous New York judge asked the New York Judicial Ethics Committee. In this judicial ethics opinion, the Committee largely did not answer it, though it did opine that the judge could choose to conduct only those weddings of his relatives and friends. That would be tantamount, in the Committee's view, to refusing to conduct marriages "on a facially neutral basis" and the Rules Governing Judicial Conduct do not require a judge to conduct weddings.
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/01/can-a-judge-refuse-to-conduct-a-gay-marriage.html
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Unless the Legislature or Federal Law empower the Judge to refuse to officiate any wedding between any two people for any reason, the judge's refusal to officiate a same-sex marriage is not different from a refusal to officiate an interracial or inter-faith marriage.
sean s.
Posted by: sean m. samis | Jan 13, 2012 8:49:35 AM
I agree with Sean. Though if I were a judge I wouldn't perform "marriage" ceremonies anyway.
Posted by: Joseph Colvin | Jan 13, 2012 9:50:36 AM
In this context, where the marriage-performing function is such a small part of the state actor's role, and where the state actor already has substantial discretion to decide whether or not to accept a request to officiate at a wedding, I don't have a problem with a judge who exercises that discretion in keeping with his or her own moral judgments. At the same time, if the judge waves a sign that says, "I don't do same-sex weddings" or "I don't do interracial weddings," then the state may be justified in stepping in, not so much because of the failure to perform a permissible service, but because of the message from a state actor that conflicts directly with a major premise of the state law the actor is charged with upholding.
Posted by: rob vischer | Jan 13, 2012 10:27:16 AM
If a judge were to have moral or religious objections to imposing the death penalty, nobody would have a problem with the judge declining to preside over a capital case. Why would this be different?
Posted by: Ed Mechmann | Jan 13, 2012 10:34:41 AM
I do think that there are some folks who would object to a judge recusing from enforcing laws that the judge finds objectionable. Scalia, for example, says that he would have to leave the bench if he opposed the death penalty.
The marriage examples are even trickier, though, because critics will say that the discriminatory application of a law is more problematic than a categorical refusal to apply a law.
Posted by: rob vischer | Jan 13, 2012 10:47:29 AM
Sean, as long as an interracial or interfaith couple can exist in relationship as husband and wife, a judge's refusal to officiate at a same-sex "marriage" is different precisely because two people of the same sex cannot live in relationship as husband and wife.
Posted by: Nancy D. | Jan 13, 2012 12:52:04 PM
Nancy D.
As before, you have the right to your opinion regarding the propriety of same-sex marriages but it is unjust to impose those opinions on others who do not agree. It is possible for two people of the same sex to live in relationship as spouses. The rest is just semantics.
sean s.
Posted by: sean m. samis | Jan 13, 2012 1:10:49 PM
Actually, Sean, spouses cannot be spouses to each other unless they live in relationship as husband and wife.
Posted by: Nancy D. | Jan 13, 2012 1:27:14 PM
While there are "some folks" who would object to Ed's example of a judge recusing himself from capital cases, that's mostly because most people can find someone who believes anything. The number and weight of those folks' objection would be a very small. Ed's implicit point is sound: there is a double standard regarding judges or governors, such that no one can ever "impose their morality" when the morality "imposed" happens to be against abortion or same-sex "marriage," while often those exact same people impose their morality such as against death penalty and they get almost no scrutiny for it.
Posted by: Matt Bowman | Jan 13, 2012 1:30:16 PM
Nancy D.
Yet another opinion you are entitled to, and which others are not obligated to conform too. Same-sex couples do it all the time, they just want legal recognition like the rest of us.
sean s.
Posted by: sean m. samis | Jan 13, 2012 2:03:37 PM
Matt,
Your comments are confusing to me. I am sure that is my fault.
I am also sure that no governor’s or judge’s personal beliefs can justify ignoring their legally mandated duty. If the law allows individuals to do certain things, then governors and judges have no business interfering because of their religious beliefs. If the law forbids things, then governors and judges must obey that prohibition. Only when the law gives them discretion can governors or judges lawfully allow their religious beliefs to determine their official actions.
sean s.
Posted by: sean m. samis | Jan 13, 2012 2:11:18 PM
Sean--another way to say it is this: the same liberal Democrat Catholic governor or similar official can reduce all death penalties to life imprisonment based on his explicit moral views, and can veto all pro-life or man-woman-only marriage laws, sign and support all pro-abortion or same-sex-marriage laws, and appoint all pro-abortion officials based on his explicit position that he can't impose his pro-life morality on anyone (apparently not even on himself). The liberal media will lavishly praise him for both, and viciously criticize pro-life or pro-marriage officials for imposing their morality. There will be no *audible* criticism of this inconsistency.
Posted by: Matt Bowman | Jan 13, 2012 2:14:59 PM
Remember when the New York Times called out George Ryan and Mario Cuomo for "imposing their Catholic morality" on Illinois and New York when they, respectively, mass-commuted capital sentences and vetoed capital punishment reinstatement legislation? Me neither.
Posted by: Mike | Jan 13, 2012 2:36:33 PM
Matt and Mike,
I get your drift, and for the most part you are correct that Liberals will not criticize discretionary acts they approve of while strongly condemning those they disapprove of. The only fair response to that is: Conservatives do like-wise. Hypocrisy is a human failing we are all prone to.
But one point I cannot quite grasp: if governors, acting within their lawful discretion, commute death sentences, in what way is that an “imposition” on their States? They may be doing something that even the majority disapproves of, but it does not make anyone do anything they were not already doing, so what is the imposition?
sean s.
Posted by: sean m. samis | Jan 13, 2012 2:50:07 PM
Sean, being a man or woman, husband or wife, is not merely a matter of semantics.
Posted by: Nancy D. | Jan 13, 2012 3:04:18 PM
Nancy D.
Being male or female is not merely semantics, but the necessity of a marriage having a “husband” and a “wife” is pure semantics. We allow people to adopt children with whom they have no biological relationship (no greater than any other stranger) and yet we allow them to call and treat them as “their children” and to call themselves the child’s “parents”. If an oriental child can have “parents” who are Northern European Americans, then two people of the same gender can be spouses, and be married. An the Sun shall still rise.
sean s.
Posted by: sean m. samis | Jan 13, 2012 3:12:01 PM
The point about the judge recusing himself from the capital case is that nobody has a problem with it. Nobody would insist that this particular judge sit on that particular case, and impose a sentence that is against his moral beliefs. Likewise with the Jehovah's Witness who refuses to say the Pledge of Allegiance, or the atheist who declines to swear on the Bible in court.
Everybody respects their conscience right to decline to do something against their moral beliefs.
But, for some reason, the rules seem to change when it's an abortion case, or a same-sex "marriage" case. In that situation, people seem to have no problem with forcing a person to do something that is against their moral beliefs.
Posted by: Ed Mechmann | Jan 13, 2012 3:33:31 PM
Nancy,
A girl must be like a blossom
With honey for just one man.
A man must be like honey bee
And gather all he can.
To fly from blossom to blossom
A honey bee must be free,
But blossom must not ever fly
From bee to bee to bee.
Posted by: David Nickol | Jan 13, 2012 5:00:25 PM
First, Sean, can I suggest that continuing the same back and forth with Nancy is probably not going to ever get you anywhere?
Second, I don't see what the hypocrisy is in criticizing officials for imposing anti-choice views on a polity but not for imposing anti-death views (or vice versa). All of us criticize what we disagree with and don't criticize what we agree with. That's not hypocrisy, it's the nature of having an opinion. If the criticism of the former were that moral views should never form the basis of public policy, that would be one thing. But that's never (or rarely) the root of it. Liberals decry the imposition of (some aspects of) Catholic teaching on the country because they think that teaching is flawed, the same way they decry the imposition of extremist "free"-market ideology.
Third, on the actual point at issue: first of all, I'm not sure why people think there would be a wide base of opposition to this, given that it arose out of a judge-initiated ethics question, and the Committee seems to have at least not ruled out the possibility. Maybe people are conflating the outcry over county clerks refusing to sign licenses and this?
The obvious distinction between the county clerk cases and this (and judges recusing from capital cases) is that a county clerk in a small county refusing to do their job imposes real costs on taxpayers. Those costs were often only partially dealt with. (For instance, in one case I heard about, straight couples could get their licenses any time during business hours, but gay couples could only get marriage licenses for a few hours one or two days a week, when a deputy was in the office.) When it comes to judges, it's likely that they're either not necessary for the marriage process in the first place, or that there are enough judges available that the recusal of one won't have a substantial impact on anyone's life.
Posted by: Andrew MacKie-Mason | Jan 13, 2012 7:44:38 PM
I was hoping when I posted this that somebody with knowledge (Rob, for sure, but others too) might be able to address this question from the point of view of the judicial ethics rules. This is specifically a New York judicial ethics question, but any thoughts on the implications of the question for judicial ethics more generally would be useful too, since the question would be a nice one to discuss in a Professional Responsibility class.
Marc
Posted by: Marc DeGirolami | Jan 14, 2012 7:23:46 AM
The question is, how can any judge perform a valid Marriage ceremony if the couple involved cannot exist in relationship as husband and wife?
Posted by: Nancy D. | Jan 14, 2012 9:32:49 AM
Actually, Nancy, that is a different question than the one I am hoping someone might answer. My question is how the canons of judicial ethics, in New York or elsewhere, might go about grappling with this question as a matter of legal ethics -- what sources might be consulted and what arguments of professional responsibility might be made with respect to a judge's ethical obligations qua judge.
Posted by: Marc DeGirolami | Jan 14, 2012 10:35:48 AM
Nancy,
I know you will not answer this, but I'll ask anyway. Since people who are civilly divorced and have living spouses are actually still married in the eyes of God, and since a married person can have only one spouse, how can a judge perform a valid marriage ceremony for divorced people who are getting married again? Should all good judges (and justices of the peace, etc.) refuse to marry people who are divorced?
Posted by: David Nickol | Jan 14, 2012 10:38:38 AM
David, we have discussed this before. We presume that those who present themselves to be married do so in good faith.
Posted by: Nancy D. | Jan 14, 2012 1:35:35 PM
Professor DeGirolami, one should always assume that legal ethics should always be grounded in the "fundamental principles of right human conduct", which would include being honest and not making false claims to begin with about the very essence of marriage, which, regardless of location, requires that a couple can live in relationship as husband and wife.
Posted by: Nancy D. | Jan 14, 2012 2:04:48 PM
So judges should refuse to marry anyone who admits to being divorced?
I'd also be interested in actual answers to the question raised above. Unlike what Professor George seems to think in his latest closed-comments culture war post, the limits of conscience rights of officials who play such an integral, powerful, and discretionary role in upholding the civil legal code isn't an easy line to draw.
Posted by: Andrew MacKie-Mason | Jan 14, 2012 3:03:45 PM
I think Vischer's comment above takes the right tact. A judge has a large amount of discretion over his calendar, particularly over things that are not an essential part of his office, i.e. doing weddings. A Catholic judge could simply "not be available" when a same sex couple presents themselves. That way, he is not publicly deprecating the laws of the state he has sworn to uphold, but neither is forced to compromise his conscience.
If the State of New York some how attempted to force the judge to do a same sex wedding, then perhaps the judge ought to resign. That would be a regrettable course for the State to take. New York already has a pretty big problem with attrition among its judges.
Posted by: AML | Jan 14, 2012 4:19:55 PM
Andrew;
In reply to your question about my “back and forth with Nancy D.”, I do not expect to change Nancy’s mind. But as my time permits, I do not want to let Nancy’s opinions-disguised-as-facts go unanswered. While I have the time, I do not want them to escape calling out. Her opinions are not facts, and it is immoral and unjust to insist that others be bound by them at the loss of their Liberty. Nancy has the right to believe as she does, but others have a right to believe differently, and to live their lives as they see fit under the same reasonable terms as anyone else: to be free to do as their consciences permit as long as they do not harm others.
Same-sex couples can live in marital relationship as spouses. Some like Nancy do not accept that, and that is fine. But their objections are too vaporous to build a prohibition on. One could say that marriage requires a couple of the same race (as used to be required) and therefore insiste that “marriages” between races are impossible (as was once thought). But now we know all that is nonsense. And so we progress: a marriage between two persons of the same sex who are willing to commit to the same standards of exclusive sexual fidelity to each other is a real marriage, plain and simple.
The difference between an official imposing “anti-choice” views and another “imposing anti-death views” is that the former restricts the rights of individuals, while the latter, by refusing to permit a death sentence, does not restrict the rights of anyone.
You are correct when you say that “All of us criticize what we disagree with and don't criticize what we agree with. That's not hypocrisy, it's the nature of having an opinion.” As far as that goes, you are right. But if we criticize something we don’t like as being “an imposition” and then neglect to criticize “an imposition” we do like, that is hypocrisy, plain and simple. If an imposition is bad, it’s bad even when we support it.
Regarding the judicial ethics question, I think I’ve already stated my position in a response to Matt. I think that also covers the matter of county clerks. Generally the clerk’s responsibility is to ensure that the couple applying for a marriage license complies with the Law. It is generally not their authority to impose additional requirements. If the couple are legally eligible, then the clerk is duty-bound to issue the marriage license.
sean s.
Posted by: sean m. samis | Jan 14, 2012 4:25:26 PM
Nancy D.,
In a recent post, you made the comment that legal ethics should be grounded in the “fundamental principles of right human conduct”. We don’t disagree about that, but we do disagree about what “right human conduct” includes. Voluntary sexual intimacy in marriage between consenting adults of the same gender arguably falls in that category. You will not agree, but that is beside the point. We all get to decide what relationships are “right human conduct” and then to live our lives according to our opinion. Imposing one’s beliefs unnecessarily on others (as you seek to do) is INARGUABLY outside right human conduct.
I noticed how you evaded David Nickol’s question about remarriage of divorced persons. Tsk tsk.
sean s.
Posted by: sean m. samis | Jan 14, 2012 4:25:51 PM
*If* we criticize the imposition of bad values solely for being an imposition, then yes, there may be hypocrisy. That criticism would be odd to see, and doesn't describe the vast majority of people who criticize the Catholic church for trying to impose its morality on the rest of the country.
Posted by: Andrew MacKie-Mason | Jan 14, 2012 5:12:27 PM
Nancy D,
You say, "We presume that those who present themselves to be married do so in good faith."
According to the Catholic Church, they may be in good faith, but if they are divorced with a spouse still living, they still can't remarry, because they are already married. If those who present themselves to be married need only do so in good faith, then same-sex couples who present themselves in good faith should have the right to get married. You will no doubt argue that a same-sex couple can't be a husband and wife, but that is true of a heterosexual marriage where one of the partners is already validly married in the eyes of God. They may be in good faith, and they may be morally blameless. But they are still adulterers. So you are saying, in effect, that we may tolerate adultery, if it is committed in good faith, but we may not tolerate homosexuality, if it is in good faith.
Why would you give this privileged position to adultery?
Posted by: David Nickol | Jan 14, 2012 5:33:34 PM
For a change, I think Nancy D.'s position is relevant to the discussion, although she refuses to acknowledge the consequences of her position. Can a Catholic judge refuse to conduct a civil marriage on the grounds that one or both of the spouses has been previously married, and "marriage is between one man and one woman." Robert George wishes to make a culture-war commercial out of the issue of same-sex marriage, yet as I read his essay "What Is Marriage?" it seems to me he is saying marriage is indissoluble, and we can know that on purely philosophical grounds, setting religion aside. So I think it is actually a pertinent question whether, say, a Catholic judge may refused to marry Protestant couple in which one or both of the spouses has been previously married.
Posted by: David Nickol | Jan 14, 2012 5:40:16 PM
The endless, fruitless Samis vs. Nancy D. litigation (and local variations on the tired theme) reminds me of the remedy proposed by Orestes Brownson in "Catholicity Necessary to Sustain Popular Liberty" (1845). A majority of consciences can settle nothing concerning the truth, except by begging the question in favor of majoritarianism.
Posted by: Patrick McKinley Brennan | Jan 14, 2012 6:13:09 PM
Sean writes, "But as my time permits, I do not want to let Nancy’s opinions-disguised-as-facts go unanswered."
Question: Would you describe your own viewpoints as 'opinions-disguised-as-facts' because I see you and Nancy playing a similar game. She invokes god or the church as an authority. You invoke the harm principle as an authority. I've read nothing--nada!--from you to prefer one over the other. I am a consistent "mirror of justice" lurker and am routinely irritated at you and Nancy's facile philosophies. Other people on this blog actually try to explain the law in all it's complexity. I learn from them. You and Nancy just do variations on the same theme. I learn nothing from Nancy that I didn't learn from middle school catechism, and I learn nothing from you that I didn't learn from my own sophmoric libertarian phase. I swear, the next time I read a comment from you, I'm just going to pick up the nearest Mills and Rawls, and when Nancy comments, I'm going to just pick up the nearest MacIntyre. I refuse to suffer any longer--I have rights too! I beg you to follow your harm principle to its logical conclusion!
Posted by: Nathan | Jan 14, 2012 8:25:13 PM
Priests and ministers have a right to refuse to preside over a marriage which is an ordinance or sacrament of their own churches. However when a judge presides over a marriage it is not a religious sacrament, but a legal marital contract. If a judge refuses to preside over a ceremony for same sex couples, then he is demonstrating his biax against homosexuals, and any homosexual ever going before that judge can know that he will never get a fair shake. This is no big news to homosexuals who are usually rejected, reviled, and ridiculed beginning about the age of five and continuing throughout life. Homosexuals face daily life being considered evil, sinful, loathsome, despicable by people who have never met them, and unto whom the homosexual has never done harm. To face bias and prejudice in the courtroom, when facing lawsuit or charges, from a biased judge who singles out homosexuals as a supposedly evil class of Americans for whom he will not perform his duty, is just par for the course.
Posted by: Mark Spears | Jan 14, 2012 10:42:27 PM
We are all sinners, thus all persons, male and female, belong to the same class of people. It is the duty of the judge to seek justice, not oppose justice, and thus witness to that which is morally true. A judge who refuses to preside over a ceremony for a couple because he knows it is the intention of that couple to engage in conduct, including sexual conduct, that demeans their inherent Dignity as human persons and is thus physically, psychologically, emotionally, and spiritually harmful, is not engaging in unjust discrimination.
Posted by: Nancy D. | Jan 15, 2012 10:01:51 AM
Y'all have pretty much all proved Robby George correct in his "culture war screed." You are all saying that Catholic judges should have to preside over same sex marriages.
Robby George is saying, if this is your position, fine. But, we should let people know that Catholic judges and others who object to same sex marriage will be forced to participate in them. Voters should know this before they they go to the polls.
You cannot say in good faith that people who object to gay marriage will not be forced to be involved in them.
That is the gist of what George is saying and you folks don't really seem to disagree.
I don't see what is so unfair about this.
Posted by: AML | Jan 15, 2012 1:22:22 PM
Let me make it clear that I am not saying that any Catholics should be forced to do anything. They don't have to be judges. They can use the law degree to be advocates for other Catholics, or for Catholicism itself if it violates their consciences to perform the duty of a judge for homosexuals as well as heterosexuals. There is no doubt that if a judge refused to conduct the implementation of a marital contract for two homosexuals, but has done so for two heterosexuals, he is acting as the advocate of one couple, and the adversary of the other couple. This is not the role of a judge, it is the role of the lawyer for heterosexuals, or the lawyer for Catholics.
Posted by: Mark Spears | Jan 15, 2012 2:39:40 PM
AML,
You say, "You cannot say in good faith that people who object to gay marriage will not be forced to be involved in them."
I think George is knocking down a straw man. If there were ever proponents of same-sex marriage who said it would have no ramifications at all, I don't recall hearing them. The rhetorical question was, "How can my marriage to a same-sex partner affect your heterosexual marriage?" George, it seems to me, is taking this and inflating it into something that proponents of same-sex marriage never claimed—that same-sex marriage would have no impact at all on anyone other than same-sex couples. Obviously that was never the case.
George's post is indeed, in my opinion, a screed on about the same level as arguments that if the ERA had been passed (actually, I think in theory it still could be) men and women would have to use the same bathrooms.
The question about judicial ethics and same-sex marriage has not even been answered, and George is making an anti-same-sex-marriage commercial out of it.
It seems to me that wherever same-sex marriage is recognized, it will be a matter of public opinion whether a judge refusing to marry a same-sex couple is considered someone taking a justifiable stand based on conscience, or someone acting like a bigot. This is not an argument against same-sex marriage any more than it would have been an argument against the civil rights movement. One might have argued that if the civill rights legislation of the 1960s got passed, people who wouldn't serve blacks at lunch counters would be stigmatized as bigots. The argument would have been correct. It is not an argument I would have wanted to make back then, however.
Robert George is not arguing for the conscience rights of those who object to same-sex marriage. He is using what in any other debate would be called "scare tactics" to argue against same-sex marriage itself saying, "If same sex marriage is approved, those of us who object to it might actually have to accommodate it!" He's not making an argument against same-sex marriage. He's trying to rally his "base."
Posted by: David Nickol | Jan 15, 2012 3:16:06 PM
Respect for the very essence of Marriage cannot co-exist with that which undermines the very essence of Marriage, thus a same-sex sexual relationship will always serve as an adversary to Marriage:
www.christendom-awake.org/pages/may/marriage-2.htm
Posted by: Nancy D. | Jan 15, 2012 4:46:55 PM
As far as I know, all U.S. jurisdictions authorize divorce and have done so for a long time. The Catholic church does not. It is, I believe, an utterly indisputable fact that Catholic judges routinely grant civil divorces, enforce property divisions and custody arrangements created in civil divorces, recognize subsequent remarriages (e.g., by recognizing that remarried people have the marital evidentiary privilege), and so on and so forth.
It is equally indisputable that there continues to be many Catholics on the bench, including 2/3 of the Supreme Court. Yet I have never heard of a single Catholic judge refusing to perform her judicial duties because they would require her to recognize the legal effectiveness of a civil divorce on the grounds that her Church did not recognize the canonical validity of that divorce. (Didn't come up in the Anna Nicole Smith cases, for example.)
So what principled stand distinguishes civil divorce from civil same-sex marriage for the Catholic judge? I see none. If you nonetheless bloviate about how SSM -- but not divorce -- amounts to a "No Catholics Need Apply" sign, then it seems that maybe you don't really care about Catholic judges who are "forced" to recognize the existence of civil facts that lack validity under canon law, maybe you're just engaged in thoughtless discrimination.
Posted by: brennan | Jan 15, 2012 4:52:52 PM
"If a judge refuses to preside over a ceremony for same sex couples, then he is demonstrating his bias against homosexuals, and any homosexual ever going before that judge can know that he will never get a fair shake."
I think my gay roommate who opposes gay marriage (for various reasons too complicated to get into now) would laugh at this comment for its utter simplicity. I agree there are people who are biased against gays, but being opposed to gay marriage does not necessarily mean you wouldn't judge a gay person fairly. It's absolutely silly to think that my roommate would be biased against gays because he opposes gay marriage.
With regards to Robert George's comment, I certainly think that there were some folks who were honest about what gay marriage might cause. For instance here: http://nplusonemag.com/repressive-sentimentalism But there's a reason why honest advocates are so few and far between: my roommate decided to oppose gay marriage because he recognized the radicalism that many gay marriage advocates want to release upon this country. He admits his policy goals might cause very minor, dignitarian type harms, but says that is a small price to pay in order to prevent greater harms. He thinks the harms to catholics, evangelicals, etc, caused by gay marriage would be far worse. And the way things are going, I think he's probably right.
Posted by: Nathan | Jan 15, 2012 5:18:46 PM
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