According to Formal Opinion 485 from the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, judges who perform marriages, either as a mandatory obligation of their office or by choice, may not refuse to do so for same-sex couples.
The opinion emphasizes that regardless of their backgrounds, personal views or philosophies, judges must follow the law and act impartially, free from bias or prejudice.
Formal Opinion 485 relies on several provisions of the Model Code of Judicial Conduct to support its conclusions. For instance, it relies on Model Rule 1.1, which expresses that “[a] judge shall comply with the law, including the Code of Judicial Conduct,” as well as Model Rule 2.2, which requires a judge to “uphold and apply the law” and to “perform all duties of judicial office fairly and impartially.” In 2015, the U.S. Supreme Court ruled in Obergefell v. Hodges that state bans on same-sex marriages are unconstitutional. As such, compliance with the law requires that judges perform opposite-sex and same-sex marriages alike, if they provide the service at all. This is the case even if a judge chooses not to perform marriages for members of the public, and only does so for family and friends.
Moreover, Model Rule 2.3(A) provides that a judge must perform the duties of judicial office, including optional duties like the performance of marriage ceremonies, free from any sort of bias or prejudice. Model Rule 2.3(B) takes this one step further and says that a judge shall not, in performing his judicial duties, by either words or conduct, manifest bias or prejudice based on classifications, such as sexual orientation. The opinion emphasizes that judges must perform their duties fairly and free from bias, and that it is essential that the public believes that judges are impartial. Without public faith in those who uphold the law, the justice system would be in jeopardy.
Read the ABA Opinion here.
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