NY Query over Same-Sex Marriage

A Question of Ethics

The committee cites Judiciary Law ' 212, 22 NYCRR 101.1 and one of its prior opinions (09-34) in concluding it cannot answer the judge's question. But ethics expert Stephen Gillers, a professor at New York University School of Law, said the committee could have addressed the judge's question.

“There are certainly legal issues in the background for the judge and the couple who want to marry,” Mr. Gillers said. “The couple has a claim based in constitutional doctrine and the judge has a claim based on conscience. The committee can't address either of those claims.”

But Mr. Gillers said the committee “can interpret the Code [of Judicial Conduct] subject to whatever those other claims may or may not require. If they want to say, 'This is our view, but it may be overridden by constitutional considerations we can't address,' they should say that. But they should take a position. That is their job and the state would benefit from having their position.”

The ethics committee declined to comment. The 26-member ethics panel is made up of current and former judges and is chaired by George D. Marlow, who is retired from the Supreme Court bench. The committee was formed in the late 1980s to respond to ethics inquiries from judges and quasi-judicial officials. It interprets the Rules Governing Judicial Conduct (22 NYCRR Part 100) and the Code of Judicial Conduct.

Mr. Gillers said there is nothing in the Code of Judicial Conduct that directly addresses the judge's issue about same-sex marriage. He said the code does prohibit judges from discriminating in the exercise of their judicial duties, and noted that performing marriages is not a judicial duty. But Mr. Gillers said the code requires judges to maintain the dignity of their office in performing extra-judicial functions and argues that refusing to perform gay marriages could be construed as demeaning the office in the same way that refusing to officiate interracial marriages would degrade the office.

'An Interesting Punt'

Mr. Gillers said the committee's implicit suggestion that the judge refrain from doing weddings or only perform nuptials for friends and relatives is “an interesting punt,” but falls far short of resolving the judge's dilemma. “Certainly, a judge can restrict weddings to friends and relatives, but what happens if a friend wants to have a same-sex marriage?” Mr. Gillers asks.

Michele Kahn, chairwoman of the New York State Bar Association's LGBT Committee, said the issue is complicated by the fact that judges do not have to perform weddings. “I would suppose that since a judge is authorized to perform weddings because [he is] a government official, [he] would be prohibited from discriminating,” said Ms. Kahn, of Kahn & Goldberg in Manhattan. “On the other hand, since judges have discretion as to which weddings they will perform, it is an interesting question. The ethics committee can't tell a judge there is a law that says you can't discriminate, and they can't say to the judge there is a law that says you can discriminate.”

The issue apparently has not been previously raised by the judiciary. Several attorneys, judges and court officials said they are unaware of any judge who is openly refusing to officiate at gay weddings. But a similar question did arise last year when a town clerk, Rose Marie Belforti of Ledyard, Cayuga County, NY, refused on religious grounds to sign marriage licenses for gay couples.

Same-Sex Marriage

The same-sex marriage statute exempts religious organizations from performing gay nuptials, but it is unclear whether the exemption extends to individuals, such as clerks and judges. Dale Schowengerdt, legal counsel for the Alliance Defense Fund, an Arizona-based Christian advocacy group that is backing Ms. Belforti, said he is unaware of any other instance in the country in which a judge has posed the question of whether he can refuse to perform same-sex marriages if they perform other marriages.

“Judges have discretion on what marriages to solemnize, and whether to solemnize,” said Mr. Schowengerdt, a member of the Alliance's marriage litigation team. “Judges don't generally have a duty and shouldn't be forced to officiate a union that violates their sincerely held religious convictions, especially since there are plenty of judges willing to officiate at same-sex weddings. There is no reason to force other judges to violate their conscience.”

In Ledyard, gay couples are not turned away. Rather, Ms. Belforti simply points them to a deputy clerk who is willing to sign the paperwork, Mr. Schowengerdt said. Similarly, the judge in Opinion 11-87 asked whether it would be acceptable for judges essentially to do the same thing ' refuse to perform same-sex marriages while referring same-sex couples to judges who are willing to perform such a ceremony. But the advisory committee said it is “not empowered to answer such questions.”

Mr. Gillers said the matter with the town clerk is substantially different from the issue raised by the judge. “The difference is the clerk doesn't represent the power of the state, and the judge does,” Mr. Gillers said. “A state official, which a judge is at a high level, carries an official message that the clerk's conduct does not. I could see where we might defer to the clerk's conscience but consider the judge to have a higher duty.”

John Caher can be contacted at [email protected]. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.

Can a judge refuse on religious grounds to perform same-sex marriages? The question has been posed by an unidentified judge in a query to the state courts' Advisory Committee on Judicial Ethics, but the answer remains unclear as the panel sidestepped the core issue and offered little guidance in an opinion released in early January.

In Opinion 11-87, the ethics committee says judges do not have to perform weddings at all, and can limit those they do perform to friends and relatives. But it declined to opine on whether a judge can conduct traditional marriages and refuse to sanction same-sex unions because of his or her religious principles.

“In the Committee's view, [the question] raises serious legal issues relating to statutory and constitutional interpretation, questions which are both unsettled and highly controversial,” the opinion says. “These legal issues, to the extent unsettled, must be raised and addressed by persons with standing in the appropriate legal venue.”

A Question of Ethics

The committee cites Judiciary Law ' 212, 22 NYCRR 101.1 and one of its prior opinions (09-34) in concluding it cannot answer the judge's question. But ethics expert Stephen Gillers, a professor at New York University School of Law, said the committee could have addressed the judge's question.

“There are certainly legal issues in the background for the judge and the couple who want to marry,” Mr. Gillers said. “The couple has a claim based in constitutional doctrine and the judge has a claim based on conscience. The committee can't address either of those claims.”

But Mr. Gillers said the committee “can interpret the Code [of Judicial Conduct] subject to whatever those other claims may or may not require. If they want to say, 'This is our view, but it may be overridden by constitutional considerations we can't address,' they should say that. But they should take a position. That is their job and the state would benefit from having their position.”

The ethics committee declined to comment. The 26-member ethics panel is made up of current and former judges and is chaired by George D. Marlow, who is retired from the Supreme Court bench. The committee was formed in the late 1980s to respond to ethics inquiries from judges and quasi-judicial officials. It interprets the Rules Governing Judicial Conduct (22 NYCRR Part 100) and the Code of Judicial Conduct.

Mr. Gillers said there is nothing in the Code of Judicial Conduct that directly addresses the judge's issue about same-sex marriage. He said the code does prohibit judges from discriminating in the exercise of their judicial duties, and noted that performing marriages is not a judicial duty. But Mr. Gillers said the code requires judges to maintain the dignity of their office in performing extra-judicial functions and argues that refusing to perform gay marriages could be construed as demeaning the office in the same way that refusing to officiate interracial marriages would degrade the office.

'An Interesting Punt'

Mr. Gillers said the committee's implicit suggestion that the judge refrain from doing weddings or only perform nuptials for friends and relatives is “an interesting punt,” but falls far short of resolving the judge's dilemma. “Certainly, a judge can restrict weddings to friends and relatives, but what happens if a friend wants to have a same-sex marriage?” Mr. Gillers asks.

Michele Kahn, chairwoman of the New York State Bar Association's LGBT Committee, said the issue is complicated by the fact that judges do not have to perform weddings. “I would suppose that since a judge is authorized to perform weddings because [he is] a government official, [he] would be prohibited from discriminating,” said Ms. Kahn, of Kahn & Goldberg in Manhattan. “On the other hand, since judges have discretion as to which weddings they will perform, it is an interesting question. The ethics committee can't tell a judge there is a law that says you can't discriminate, and they can't say to the judge there is a law that says you can discriminate.”

The issue apparently has not been previously raised by the judiciary. Several attorneys, judges and court officials said they are unaware of any judge who is openly refusing to officiate at gay weddings. But a similar question did arise last year when a town clerk, Rose Marie Belforti of Ledyard, Cayuga County, NY, refused on religious grounds to sign marriage licenses for gay couples.

Same-Sex Marriage

The same-sex marriage statute exempts religious organizations from performing gay nuptials, but it is unclear whether the exemption extends to individuals, such as clerks and judges. Dale Schowengerdt, legal counsel for the Alliance Defense Fund, an Arizona-based Christian advocacy group that is backing Ms. Belforti, said he is unaware of any other instance in the country in which a judge has posed the question of whether he can refuse to perform same-sex marriages if they perform other marriages.

“Judges have discretion on what marriages to solemnize, and whether to solemnize,” said Mr. Schowengerdt, a member of the Alliance's marriage litigation team. “Judges don't generally have a duty and shouldn't be forced to officiate a union that violates their sincerely held religious convictions, especially since there are plenty of judges willing to officiate at same-sex weddings. There is no reason to force other judges to violate their conscience.”

In Ledyard, gay couples are not turned away. Rather, Ms. Belforti simply points them to a deputy clerk who is willing to sign the paperwork, Mr. Schowengerdt said. Similarly, the judge in Opinion 11-87 asked whether it would be acceptable for judges essentially to do the same thing ' refuse to perform same-sex marriages while referring same-sex couples to judges who are willing to perform such a ceremony. But the advisory committee said it is “not empowered to answer such questions.”

Mr. Gillers said the matter with the town clerk is substantially different from the issue raised by the judge. “The difference is the clerk doesn't represent the power of the state, and the judge does,” Mr. Gillers said. “A state official, which a judge is at a high level, carries an official message that the clerk's conduct does not. I could see where we might defer to the clerk's conscience but consider the judge to have a higher duty.”

John Caher can be contacted at [email protected]. This article also appeared in the New York Law Journal, an ALM sister publication of this newsletter.