Opinion 16-56

May 5, 2016

Digest:         (1) Unless a judge is required by law or rule to perform marriages, a judge may adopt a policy to decline to perform all weddings. (2) A judge who declines to perform weddings may permit court staff to refer couples to another incumbent public official who is authorized to solemnize marriages.

Rules:          Domestic Relations Law § 11(3); 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(D)(3); Opinions 11-87; 10-124.

Opinion: 

         A full-time judge asks if he/she may decline to perform all weddings. If so, the judge asks if court staff may refer the couple to another wedding officiant with whom the judge has no financial interest and will not receive any remuneration for the referral.

         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 not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), and a full-time judge must not be an “active participant of any business entity” unless a specific exception applies (22 NYCRR 100.4[D][3]).

         First, as the Committee previously advised: “the Rules Governing Judicial Conduct do not, by their terms, require judges to perform marriages. Accordingly, unless a judge is required by law to perform marriages, the Committee sees no impropriety if a judge declines to conduct all marriages” (Opinion 11-87).¹ The Committee sees no reason for a different result here.

         Secondly, the Committee has advised that a judge may make a referral to a specific program or service offered by a governmental or not-for-profit entity, so long as the referral is not motivated by mere favoritism and does not impermissibly promote private interests (see Opinion 10-124). The Committee understands many people authorized to solemnize New York marriages offer such services for a lawful fee and in a way the public might reasonably conclude they are engaged in the business of performing marriages. Thus, to avoid a possible appearance of impropriety or inference the judge promotes private interests in making such referrals, the judge may allow court staff to refer a couple only to an incumbent public official who is authorized to solemnize marriages under Domestic Relations Law § 11 (see generally 22 NYCRR 100.2; 100.2[C]; 100.4[D][3]). Where the judge has no financial interest and will receive no remuneration for such referral, and the referral is to an incumbent public official, the Committee sees no possible appearance of impropriety.

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         ¹ The statute authorizing a “justice or judge of a court of the unified court system” to solemnize a marriage does not, on its face, appear to require all judges to exercise this authority (Domestic Relations Law §11[3]).