AZ Judicial Ethics Board: Judges Can’t Refuse to Perform Same-Sex Weddings

Like most states, Arizona gives judges the authority to solemnize marriages and many, probably most, of them do so. The Arizona Supreme Court Judicial Ethics Advisory Committee has now issued an advisory that says judges cannot refuse to perform same-sex weddings if they choose to perform opposite-sex weddings. The advisory says:

a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.

Rule 2.3(B) of the Arizona Code of Judicial Conduct provides that a judge shall not, “in the performance of judicial duties,” manifest bias or prejudice based upon sexual orientation….

Refusing to perform same-sex marriages, while agreeing to perform opposite sex marriages, also violates Rule 2.2 of the Code which provides that “[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.”

… The JEAC concludes that a judge may choose for various reasons not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function. A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others. Such a choice would not run afoul of Rule 2.3(B) because it is not based on sexual orientation. Of course, a judge who performs marriages only for friends and relatives would violate Rule 2.3(B) if the judge refuses to perform marriages for same sex friends and relatives.

It would also clearly violate the Equal Protection Clause of the First Amendment. A government official cannot refuse to perform their duties for a group or individual because they disapprove of them. A Muslim DMV clerk cannot refuse to issue licenses to women because he doesn’t think they should be allowed to drive. A fundamentalist Christian county or state employee cannot refuse to issue a business license to a woman because they think women should be in the home. A clerk cannot refuse to issue a marriage license to an interracial couple. Any refusal to do their job and offer the government service that is within their job to deliver because they disapprove of the person seeking that service is a clear and obvious violation of the Equal Protection Clause.

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  • http://www.gregory-gadow.net Gregory in Seattle

    Washington State law allows judges to officiate marriages, but does not require them to do so. Judicial guidelines have long held that if a judge does officiate marriages, they cannot engage in any discriminatory practices when selecting which marriages to officiate. Right after same-sex marriage came to Washington, the state Bar Association issued a brief statement putting all judges on alert that this applied to same-sex marriage as well. It sounds like Arizona has a similar point of legal ethics which, to be honest, rather surprises me.

  • John Pieret

    Sometimes I’m almost proud of my profession.

  • D. C. Sessions

    Arizona wasn’t always a pit of wingnuttery. Actually, up until January, its Congressional delegation was majority-Democrat.

  • naturalcynic

    It would also clearly violate the Equal Protection Clause of the First Amendment. A government official cannot refuse to perform their duties for a group or individual because they disapprove of them. A Muslim DMV clerk cannot refuse to issue licenses to women because he doesn’t think they should be allowed to drive. A fundamentalist Christian county or state employee cannot refuse to issue a business license to a woman because they think women should be in the home.

    Uh, Ed, it’s the Fourteenth Amendment. And your hypothetical scenarios are a little bit cockeyed. Have you noticed the preponderance of women working at the DMV and county governments. A sexist male fundamentalist Muslim or Christian [or Jew] would find himself totally creeped out in those environments.

  • Larry

    Expect to see impeachment proceedings for the ethics board begin real soon now coincident with screams of judicial tyranny and persecution.

  • screechymonkey

    A Muslim DMV clerk cannot refuse to issue licenses to women because he doesn’t think they should be allowed to drive.

    Ironic that the people most freaked out about “Sharia Law” coming to America are the ones who might make it happen through these “Religious Freedom Restoration Acts.”

  • Who Cares

    A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others.

    In my crystal ball I see judges with an impressive amount of friends.

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