The Judicial Ethics Forum (JEF)

An Academic Discussion of Judicial Ethics, Discipline & Disqualification

More Roy Moore and the Ethics of Refusing Same-Sex Marriages

Posted by kswisher on Thursday, February, 26, 2015

Unbelievably, Alabama Chief Justice Roy Moore is still in the news — “unbelievably” because this is the same Chief Justice Moore whose colleagues had to remove from the Alabama Supreme Court for his failure to comply with a direct federal court order to remove his Ten Commandments monument from the public courthouse.  As his colleague-justices later concluded, Moore’s actions back in 2001 to 2003 clearly violated the Code of Judicial Conduct, which requires (among other relevant conduct) that judges comply with the law.  Moore was nevertheless reelected and has since instructed probate judges not to issue marriage licenses for same-sex marriages.  At least two interesting and relevant pieces related to this development follow:

First, Professor Amanda Frost recently published a piece on whether state courts must or should follow lower federal court precedent on the meaning of federal law.  Although her work was written just before this recent controversy, it provides intriguing historical and other perspectives on this question.  See Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?, 68 Vand. L. Rev. 53 (2015).

Second, the Arizona Judicial Ethics Advisory Committee just issued Opinion 15-01, which concludes that judges cannot ethically refuse to marry same-sex couples out of religious or other objections.  Although judges may refuse to marry all couples or may marry only close family and friends, judges may not refuse to marry same-sex couples and thereby discriminate against them.  See Model Code R. 2.3(B).  (In a sense, the decision loosely parallels employment law to some extent in that an employer can generally hire or fire an employee for “no reason” but not for a “bad reason.”)

UPDATE: The Arizona Judicial Ethics Advisory Committee revised its opinion last month.  The new opinion reaches the same conclusions as above but (1) emphasizes that judges are not required to perform marriages at all (but if they do, they must not discriminate between same- and opposite-sex couples) and (2) deletes the reference to Rule 1.1 (which requires judges to comply with the law).  The revised opinion is available here.

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