Judges may not refuse to perform same-sex marriages: American Bar Association

Judges may not refuse to perform same-sex marriages: American Bar Association

The American Bar Association issued Formal Opinion 485 ,which states that judges who perform marriages as a “mandatory obligation of judicial office may not decline to perform marriages of same-sex couples.”

The formal opinion differentiates between the obligations of a judge whose performance of marriages is either mandatory or optional. In either case, Formal Opinion 485 said the Model Code of Judicial Conduct is violated “by refusing to perform marriages for same-sex couples while agreeing to perform marriages of opposite-sex couples.”

In American Bar Association opinion 485, If a judge is not obligated to perform marriages, the judge “may decline to perform all marriages for members of the public” while maintaining that prerogative for “family and friends,” the opinion said. Still, the judge must be consistent and not discriminate based on sexual preference in performing those specific marriages.

“The public is entitled to expect that judges will perform their activities and duties fairly, impartially and free from bias and prejudice,” Formal Opinion 485 says. “Further, while actual impartiality is necessary, it is not sufficient; the public must also perceive judges to be impartial. If state law authorizes or obligates a judge to perform marriages, a judge’s refusal to perform same-sex marriages while agreeing to perform marriages for opposite-sex couples is improper” under the judicial model code.

The American Bar Association Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Formal Opinion 485 and other ABA ethics opinions are available on the ABA Center for Professional Responsibility website.