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

AZ Judicial Ethics Board: Judges Can’t Refuse to Perform Same-Sex Weddings March 18, 2015

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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