Opinion 19-50

May 2, 2019

Digest:         A judge may not display a rainbow flag or rainbow heart sticker on the bench or in the courtroom.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2 (C); 100.3(B)(4)-(5); Opinions 18-156; 02-35; 02-08.

Opinion:

         A full-time judge asks if he/she may publicly display a small rainbow flag or rainbow heart sticker in the courtroom, to communicate to individuals identifying as lesbian, gay, transgender, or queer that they are in a “safe, affirming and inclusive space.” If permitted, the judge would like to display these symbols on the bench or his/her judicial name plate.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “perform judicial duties without bias or prejudice against or in favor of any person” (22 NYCRR 100.3[B][4]). For example, a judge must not, “by words or conduct, manifest bias or prejudice, including but not limited to bias or prejudice based upon ... sexual orientation, gender identity [or] gender expression” (id.). Moreover, a judge “shall require staff, court officials and others subject to the judge’s direction and control to refrain from such words or conduct” (id.). Indeed, the judge’s responsibility for curbing such manifestations of bias and prejudice in the courtroom even extends to “lawyers in proceedings before the judge” (22 NYCRR 100.3[B][5]).

         Consistent with 22 NYCRR 100.3(B)(4)-(5), the courthouse and courtroom must convey to the public that everyone who appears before the court will be treated fairly and impartially. We recognize the good intentions underlying the proposal to convey assurances of welcome or acceptance to historically marginalized or disadvantaged groups by displaying their symbols in the courtroom. However, we believe that giving symbolic assurances for particular groups in the courtroom will not promote public confidence in the judiciary’s impartiality (cf. Opinion 02-35 [plaque honoring volunteer fire policeman killed by a drunk driver should not be prominently displayed in the courtroom while court is in session]).

         Accordingly, a judge may not display a rainbow flag or rainbow heart sticker on the bench or in the courtroom.¹

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¹ Our present opinion only addresses public display of symbolic flags or stickers in the courtroom, a uniquely public place in which cases are adjudicated (see e.g. Opinion 18-156). We do not address a judge’s private chambers or personal adornment (cf. Opinion 02-08 [leaving to judge’s discretion whether officiating a vow renewal ceremony in a themed costume will detract from the dignity of judicial office]).