Court: Ohio Judges Can't Refuse to Perform Gay Weddings

by | August 11, 2015 AT 10:10 AM

By Randy Ludlow

Amid scattered instances of balking, Ohio judges who perform marriages cannot ethically or legally refuse to wed same-sex couples, an arm of the Ohio Supreme Court counseled the jurists on Monday.

And, while some municipal, probate and county court judges do not perform any weddings, their refusal cannot be based on "personal, moral or religious objections" to same-sex marriage, according to an advisory opinion.

The Board of Professional Conduct issued the opinion after it received requests for guidance following the U.S. Supreme Court's 5-4 ruling overturning Ohio's constitutional ban on same-sex marriage and legalizing it nationally on June 26.

A handful of judges across Ohio have refused to wed gay and lesbian couples, or have decided they will wed no one, following the landmark ruling involving Cincinnatian Jim Obergefell and the Ohio Department of Health.

Mark Schweikert, executive director of the Ohio Judicial Conference, said, "My experience is that there haven't been too many instances where it's been an issue.

"It's just a few (judges). In most communities, it's not a problem."

He added, "The opinion appears to be pretty detailed and clear. It's indicative of the confusion that they (judges) asked for guidance."

The law and the judicial-conduct code require judges to impartially perform all duties of their office without bias or prejudice against any party, the Board of Professional Conduct said in its nonbinding opinion.

"A judge's reliance on personal beliefs as a basis for declining to perform some or all civil marriages may require disqualification from cases in which the sexual orientation of the parties is at issue," a summary of the opinion said.

"Judges are further advised that personal, moral, or religious beliefs should not be a factor ... and to be aware of the impact that a decision to decline to perform all civil marriages may have on the public's perception of the judiciary."

The board said it was not empowered to determine whether state law makes it mandatory -- or optional -- for municipal, probate and county court judges to perform civil marriages.

Phil Burress, head of Citizens for Community Values, slammed the advisory opinion.

"My question to the state courts would be, what does 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof' mean?" asked Burress, whose organization led the 2004 push amending Ohio's Constitution to limit marriage to one man and one woman.

"When there are many judges who are willing to perform same-sex unions, why would any judge be forced to perform a same-sex union when it violates his or her 'free exercise thereof'?

"The answer is simple. It's about forcing people to accept a behavior that violates God's law and nature's law. I believe most judges who know the United States Supreme Court acted outside the Constitution and rule of law or hold a strong religious belief will stop doing marriages."

Schweikert said a "considerable number" of judges, particularly in smaller counties, long have refused to perform any weddings -- predating the same-sex marriage ruling -- due to time involved and their crowded court dockets.

The Ohio Supreme Court has no figures on how many municipal, probate and county court judges perform weddings. Mayors, ministers and others also are authorized to perform weddings under state law.

When judges take their oath of office, they must set aside personal beliefs and follow the law regardless whether it is "popular or unpopular with the public, the media, government officials or the judge's friends or family," says Ohio's Code of Judicial Conduct.

(c)2015 The Columbus Dispatch (Columbus, Ohio)