The American Bar Association Standing Committee on Ethics and Professional Responsibility released a formal opinion that gives judges guidance for their options in performing same-sex marriages.
Under Formal Opinion 485, judges violate the Model Code of Judicial Conduct if they refuse to perform same-sex marriages while also agreeing to perform marriages for opposite-sex couples. In other words, judges who perform marriages can’t discriminate if they’re asked to marry an LGBTQ+ couple.
Formal Opinion 485 comes as individual states are implementing the 2015 U.S. Supreme Court decision in Obergefell v. Hodges.
Not all judges are required to perform marriages and those who aren’t are allowed to decline to perform marriages for all members of the public while still performing marriages for family and friends. Those judges are still not able to discriminate based on sexual orientation and they must be consistent.
The ABA Standing Committee on Ethics and Professional Responsibility issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.
“The public is entitled to expect that judges will perform their activities and duties fairly, impartially and free from bias and prejudice,” Formal Opinion 485 says. “If state law authorizes or obligates a judge to perform marriages, a judge’s refusal to perform same-sex marriages while agreeing to perform marriages for opposite-sex couples is improper.”
