Judges Can't Follow Their Conscience?


Can judges act in accordance with their consciences and still hold public office? Are judges who oppose same-sex marriage fit to serve their country? Roger Severino, reporting for The Daily Signal, records the Ohio Court Board’s decision, a resounding “No”:

ThinkstockPhotos-470954011According to the [Ohio] Board, a judge who performs civil marriage ceremonies cannot decline to perform them for same-sex couples no matter what the judge’s religious beliefs or moral convictions on the matter.

Had the Board stopped there, the Ohio courts could have come up with a system, like in North Carolina, that ensures that every qualified couple receives a timely license and solemnization ceremony while also protecting the conscience rights of objecting clerks and magistrates by allowing them to recuse themselves from all marriage licensing.
There would be no losers under such a system.

But instead, the Board slandered judges who seek to opt out of marriage ceremonies by saying they would create the appearance of “bias or prejudice” against gays or lesbians and should be disqualified from hearing any cases touching upon sexual orientation. But it simply does not follow that a refusal to accept marriage as a genderless institution indicates a bias or prejudice against gays and lesbians.

Nevertheless, the Board warned that a judge who “publicly states or implies a personal objection to performing same-sex marriages” and seeks recusal from performing all marriages violates the state mandate against judicial “impropriety.” In other words, the commonsense compromise adopted by North Carolina is unethical.

The Ohio Court Board’s opinion represents a gross discrimination against people of faith. Excluding such people from the Justice Department is both imprudent and divisive. Severino explains:

That religious freedom is a fundamental right does not mean that the interests of believers always win. States now have a judicially imposed obligation to issue same-sex marriage licenses, and judges and clerks that cannot in good conscience participate in same-sex wedding ceremonies have a responsibility to their employer to make their objections known and seek guidance before it becomes an issue. That the case precipitating the Board’s action involved a same-sex couple actually being denied marriage solemnization perhaps explains, but does not justify, the Board’s extreme response.

As Professor Robin F. Wilson of the University of Illinois Law School notes in her scholarship, citizens entitled to state services “do not necessarily have a claim to receive the service from a particular public servant.” Accordingly, the Board should have stepped back and allowed recusal from all marriage solemnizations as a religious accommodation that everyone can live with. Instead, it effectively cast doubt on the fitness of people of faith to be judges in a sweeping opinion.

The Board’s action fits a growing pattern of myopic exclusion of people of faith from positions of public trust that creates bad precedent and bad blood and makes for bad policy. We can do better.

See The Daily Signal for more.

Copyright 2015