The Supreme Court’s decision last month legalizing same-sex marriage has led numerous Ohio leaders to question how judges should balance their civic responsibilities with their religious beliefs.
Several Ohio judges tasked with issuing marriage licenses or performing courthouse weddings have chosen to opt out of those duties because their religion doesn’t approve of same-sex marriage.
Supporters of Clark County Probate Court Judge Richard Carey, who chose to remove his name from all marriage certificates instead of having it appear on same-sex licenses, said judges should be allowed to exercise their religious beliefs as long as everyone can still access services.
“Should someone be forced to do something that’s against their religious or personal conviction? Do you give up your religious rights because you work for the government?” state Rep. Nino Vitale, R-Urbana, said.
He’s introduced the Ohio Pastor Protection Act to protect clergy who refuse to perform same-sex marriages.
No similar legislation has been proposed to protect judges, but the Ohio Supreme Court has been asked to weigh in on the matter.
Judges take an oath of office to administer justice impartially, civil and gay rights groups said, and shouldn’t use religious freedom as an excuse to discriminate.
“We all know what is going to seem slight to many people in our community, we know that feels significant to a lot of people … Separate but equal is not equal,” said Rick Incorvati, president of gay rights group Equality Springfield.
A need for guidance
Toledo Municipal Judge Allen McConnell and the Association of Municipal and County Judges of Ohio have requested advisory opinions from the Ohio Supreme Court’s Board of Professional Conduct on this issue.
Both asked if judges are required to perform weddings under Ohio law.
McConnell made headlines in the days after the Supreme Court’s decision when he told a same-sex couple that he wouldn’t perform their wedding. Another judge married them.
His letter to the professional conduct board noted that Ohio judges are authorized to perform marriages, “but I am uncertain as to whether or not this is a mandatory obligation.”
The judges association asked similar questions:
- May a judge decline to perform some wedding ceremonies due to his or her personal beliefs?
- May a judge decline to perform all wedding ceremonies?
- Are weddings a duty or an authority judges are granted and may choose not to exercise?
- Is there a difference in duty/authority between municipal, county and probate judges?
- If there is a duty to perform marriages, is it the personal duty of each judge or simply a duty of the court?
“It’s not necessarily a novel issue, in general, but in this particular context, it’s the first time that our board has been asked to address it,” said Rick Dove, director of the professional conduct board.
The conduct board next meets Aug. 7.
Clark County Municipal Judge Thomas Trempe said it’s been his impression that judges aren’t required to perform weddings. All three of the county’s municipal judges have performed weddings, he said.
“The judges here have done it as a public service. Some people are not affiliated with a church but would still like to be married,” he said. “There are some municipal court judges who have never done weddings.”
If judges can choose, some gay rights advocates worry that some same-sex couples may be unable to marry in their home county. All of the judges in Guernsey County, for example, no longer perform any weddings.
Clark County Municipal Court Judges Eugene Nevius and Denise Moody and Common Pleas Court Judges Thomas Capper, Richard O’Neill, Douglas Rastatter and Joseph Monnin didn’t respond to multiple requests for comment on this story.
A few other states have weighed in on this issue recently.
Nebraska’s Judicial Ethics Committee concluded in late June that judges and magistrates there couldn’t refuse to perform only same-sex marriages, but could stop doing all marriages.
“If a judge is willing to perform traditional marriages, his or her refusal to perform same-sex marriages would be a manifestation of bias or prejudice based on sexual orientation when a valid law permits such couples to marry, even if the judge states that the reason is based on sincerely held religious beliefs,” the committee wrote.
Texas Attorney General Ken Paxton issued an advisory opinion June 28 telling that state’s county clerks they could object to granting marriage licenses if it violated their religious beliefs, but said they could be sued for doing so.
Which right wins?
Both sides of the debate agree the issue comes down to individual religious freedom versus civil rights for all.
“How can a person of faith remain true to that faith and yet also true to an oath that he or she has taken in a position of civil authority,” said Dan Andriacco, communications director for the Roman Catholic Archdiocese of Cincinnati.
When judges put their robes on, they must leave their personal beliefs at the door, Equality Ohio Executive Director Elyzabeth Holford said at a rally in Springfield last week.
Conservative groups dispute that.
“There’s no question that our country was founded on religious freedom,” Vitale said. “We have people of conscience who believe there is a higher authority than what I signed up for in terms of government.”
Those people shouldn’t be forced to go against their faith, he said.
Phil Buress, president of Cincinnati-based Citizens for Community Values, called it religious persecution and reverse discrimination.
“This has got to stop,” he said.
No Catholic doctrine dictates that a judge or other government official must shirk their civic duty in favor of religious tenant or vice versa, Andriacco said, but it’s a clear church teaching that individuals should follow their own conscience.
“We believe that the thousands-year old tradition that marriage is for one man and one woman is also good for secular society,” he said. “So a Catholic who looks at that and says, ‘My faith tells me this is not good for secular society and I cannot in good conscience take part in that,’ shouldn’t take part in that.”
The Catholic church doesn’t support unjust discrimination against homosexuals, he said, but it doesn’t view withholding marriage as an unjust discrimination.
The ACLU of Ohio disagrees with that opinion and it’s unfortunate that some judges may believe they’re being infringed on, policy manager Lisa Wurm said.
“Providing a service doesn’t mean that you’re endorsing anyone’s marriage or divorce or adoption. It just means that you’re doing your job,” she said.
Trempe, who performed his first same-sex wedding on Friday and is a lifelong Catholic, said it’s a question each judge has to answer for themselves.
“I view them as any other wedding under the law now,” he said.
Many Catholic judges likely marry divorced individuals, Andriacco said.
Vitale’s bill to protect clergy and churches could be joined by a second proposed bill to protect businesses and individuals.
State Rep. Ron Young, R-Leroy, has asked for co-sponsors for a bill aimed at protecting people in the wedding industry.
It seems like a stretch that churches could be forced to act against their faith, Andriacco said, but it’s a fear among the faith community.
“There’s certainly the perception on the part of a lot of people of faith that faith is being pushed to the margins,” he said. “I think a lot of people of faith feel under siege.”
The issue of a judge’s religious freedom isn’t limited to marriage cases, but Wurm said that’s the civil rights topic of the day and it’s raising new legal questions.
“How far are we going to let this guise of religious freedom go?” she asked. “If (a judge) is Catholic, doesn’t that mean that he doesn’t believe in divorce … What if there is a second marriage?”
Carey said other potential conflicts concerning faith and marriage applications would, “require an examination of conscience of the applicants,” which is beyond the scope of the court.
When asked if he would ever hear a death penalty case, he said that was outside his responsibilities as probate judge.
“From time to time, every judge will likely come across a case in which he or she finds a potential conflict to exist — whether it be born of faith or otherwise. The law provides, then, for a means and a procedure by which that conflict can fairly be addressed,” Carey said.
That generally means recusing themselves.
The Code of Judicial Conduct requires judges to disqualify themselves from cases where their impartiality might be questioned, such as if they have a personal relationship or an economic interest in the case.
But Dove said he’s not aware of any specific case law in Ohio that deals with disqualification in the context of same-sex marriage or because of a judge’s religious convictions.
“I have had occasions to recuse myself where I have had a closer personal relationship with either a party or a witness,” Judge Trempe said, but never for a religious reason.
There are examples in case law where judges have been disciplined for allowing their personal beliefs to interfere with their duty, Dove said, but also cases in which some religious influence was deemed admissible.
In 2001, Cuyahoga County Judge Patricia Cleary had her law license suspended for six months for allowing her beliefs about abortion to influence a sentencing.
She sentenced a 21-year-old pregnant woman to six months in prison on a forgery charge, but indicated in court that probation was a possibility if the defendant chose to place her baby up for adoption rather than get an abortion.
The woman appealed but by the time she was released it was too late for an abortion.
A disciplinary panel found that Cleary’s sentencing, “was, in part, motivated by her personal beliefs regarding abortion, which rendered her unable to objectively apply the standards which she was required to follow in sentencing.”
But in a 2000 case, the Ohio Supreme Court held that a judge’s reference to the Bible, “constituted a permissible exercise of her discretion,” because she merely used a Biblical passage to guide her own thoughts on sentencing.
Judges take an oath of office to be impartial, Dove said.
“There’s a general rule that our judges perform their duties without bias and prejudice,” Dove said. “There’s a general obligation that judges are not to allow external influences to guide their conduct.”
Public opinion mixed
Reaction to the Supreme Court’s landmark decision last month has been split, as has local reaction to Judge Carey’s marriage license change.
Newly elected Clark County Bar Association President Jon Doughty said the changes to marriage licenses doesn’t call into question Carey’s ability to be impartial in other instances.
“I have no problem with it,” he said.
Some lesbian, gay, bisexual and transgender activists that gathered at a recent rally in downtown Springfield called for Carey to step down.
“It’s demeaning my relationship with my future husband,” said R. J. McKay from the Dayton LGBT Center.
The majority of those questioned in an Associated Press-GfK poll this month said they believe religious liberties should win out over gay rights if there is a conflict.
About 56 percent of respondents said protection of religious liberties should take precedence, while 39 percent said it’s more important for the government to protect gay rights.
The poll showed a near-even split over whether local officials with religious objections should be required to issue marriage licenses to same-sex couples, with 47 percent saying yes and 49 percent saying they should be exempt.
And 42 percent said they support same-sex marriage while 40 percent oppose it.
Anna Greene, who received Clark County’s first same-sex marriage license on July 6 with Harlie Royce, said the fact that Carey didn’t put his name on it doesn’t bother her.
“We have our rights and he has his,” Greene said.
Thank you for reading the Dayton Daily News and for supporting local journalism. Subscribers: log in for access to your daily ePaper and premium newsletters.
Thank you for supporting in-depth local journalism with your subscription to the Dayton Daily News. Get more news when you want it with email newsletters just for subscribers. Sign up here.