Opinion 11-87

December 8, 2011

Please Note: Since the issuance of Opinion 11-87, certain legal issues relating to statutory and constitutional interpretation, which were previously "unsettled and highly controversial" (id.), have been fully settled by the United States Supreme Court. See Obergefell v. Hodges, 576 U.S. 644 (2015).  

Digest:         (1) Unless a judge is required by law to perform marriages, a judge may adopt a policy of performing marriages for friends and relatives only or may decline to perform all marriages. (2) Whether a judge may adopt a policy with respect to performing marriages that distinguishes between same-sex and opposite-sex couples raises primarily legal questions; however, if a judge acts in conformity with governing law the judge will not violate the Rules Governing Judicial Conduct.

Rules:          Marriage Equality Act (L 2011, ch 95 as amended by L 2011, ch 96 [effective July 24, 2011]); Domestic Relations Law §§10-a(1), 11(3); Judiciary Law §212(2)(l); Hernandez v Robles, 7 NY3d 338 (2006); 22 NYCRR 101.1; 100.2; 100.2(A); 100.2(D); 100.3(A); 100.3(B)(1), (4); 100.4(A)(1); Opinions 09-34; 92-106 (Vol. X); Joint Opinion 04-38/04-39.

Opinion:

         In reference to the Marriage Equality Act (L 2011, ch 95 as amended by L 2011, ch 96 [effective July 24, 2011]), a judge writes, “Given my personal religious beliefs, I am currently unwilling to conduct same sex marriages, despite the New York State Law.” The judge asks for ethics advice in response to the following questions:

1) May I ethically refuse to conduct same sex marriages?

2) If I continue to perform male/female marriages, may I ethically refuse to conduct same sex marriages?

3) May I refuse to conduct all marriages?

4) May I refuse to conduct same sex marriages if I provide the contact information of others (including judges or civil officers) who are willing to conduct same sex marriages?

5) May I limit weddings that I conduct to those people who are friends or relatives?

         Preliminarily, the Committee notes that it has not been asked to, nor can it, evaluate the merits of same-sex marriage; weigh any potentially competing constitutional interests such as those relating to separation of church and state, free exercise of religion, and rights of expressive association; or opine on issues of constitutional or statutory interpretation (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).

THE RULES GOVERNING JUDICIAL CONDUCT

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “respect and comply” with the law (id.) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]). In the performance of judicial duties, a judge must not, by words or conduct, manifest bias or prejudice based on numerous factors, including sexual orientation (see 22 NYCRR 100.3[B][4]).

         A judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), and thus a judge must not engage in extra-judicial activities that will cast reasonable doubt on the judge’s capacity to act impartially as a judge (see 22 NYCRR 100.4[A][1]). Therefore, a judge must not hold membership in any organization that “practices invidious discrimination on the basis of … sexual orientation,” although this provision “does not prohibit a judge from holding membership in an organization that is dedicated to the preservation of religious, ethnic, cultural or other values of legitimate common interest to its members” (22 NYCRR 100.2[D]).

DECLINING TO CONDUCT MARRIAGES ON A NEUTRAL BASIS

Questions 3 and 5

         In Questions 3 and 5, the judge asks whether it is ethically permissible to decline to perform some or all marriages on a facially neutral basis that has no apparent connection to sexual orientation or any protected class.