Same-Sex Civil Marriages: Ohio Judges Are Compelled to Follow the Rule of Law

On August 7, 2015, the Supreme Court of Ohio issued Advisory Opinion 2015-1. The opinion explains that a judge with the authority to perform civil marriages must take an oath declaring they will perform their duties impartially. This Judicial Oath of Office (“Oath”) states: “I, (name), do solemnly swear that I will support the Constitution of the United States and the Constitution of Ohio, will administer justice without respect to persons, and will faithfully and impartially discharge and perform all of the duties incumbent upon me as a judge according to the best of my ability and understanding. [This I do as I shall answer unto God.”]

Judges have the authority to perform marriages and must follow the Code of Judicial Conduct. When a judge performs a civil marriage ceremony, “the judge is performing a judicial duty and thus is required to follow the Code in the performance of that duty.” The Code mandates judges to remain impartial and fair, while prohibiting conduct that would appear as being biased or prejudiced to others.

The recent Supreme Court decision legalizing same sex marriage overruled jurisdictions—such as Ohio—that restricted marriage to only opposite-sex couples. In order to ensure that judges continue to perform their responsibilities impartially, the Ohio Supreme Court Board of Professional Conduct has held that Ohio state judges who perform marriages in their judicial capacity must also perform same-sex marriages.

The Board found that not performing same-sex marriages while still performing opposite-sex marriages, or refusing to perform all marriage ceremonies because the judge opposes same-sex marriage, violates the Oath judges have taken. Additionally, this refusal violates Ohio Rule of Professional Conduct 8.4(g), which does not allow lawyers to “engage, in a professional capacity, in conduct involving discrimination prohibited by law because of . . . sexual orientation.”

The Board also cautioned that failing to perform same-sex marriages violates a judge’s responsibility to remain impartial. Thus, failure to perform same-sex marriage ceremonies signifies to the public that the judge maintains a personal bias or prejudice towards a particular group. Moreover, a judge may not refrain from performing all marriages so as to avoid conducting same-sex marriage ceremonies. A judge’s position that he will not conduct any marriages may also be interpreted as bias towards a particular class, thereby raising reasonable questions about the judge’s impartiality in any case in which sexual orientation is an issue and resulting in disqualification of the judge.

Bottom line: The U.S. Supreme Court has upheld the right of same-sex couples to marry—Ohio judges must adhere to the rule of law.

To read the Ohio opinion, click here.

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