Wisconsin Judges Can Avoid Same-Sex Marriages

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By Bernie Pazanowski

Aug. 25 — Judicial officers in Wisconsin may avoid performing same-sex marriages simply by declining to perform “all” marriages, Opinion No. 15-1 of the Supreme Court of Wisconsin Judicial Conduct Advisory Committee said Aug. 18.

Relying on Obergefell v. Hodges, 83 U.S.L.W. 4592, 2015 BL 204916 (U.S. June 26, 2015), and state law, the opinion said that it's clear that a state judicial officer can't cite his or her religious beliefs to get out of officiating same-sex marriages.

Under Obergefell, the 14th Amendment requires states to license marriages between two people of the same sex, the opinion noted. Furthermore, under Wisconsin Supreme Court rules “[a] judge shall perform judicial duties without bias or prejudice” based upon “sexual orientation,” it said.

According to the opinion, a judicial officer's refusal to perform a same-sex marriage “for any reason, including religious or personal beliefs, while being willing to perform opposite-sex marriages would constitute refusal to follow the law and would draw into question the integrity and impartiality of the judiciary.”

A caveat to the committee's conclusion, however, is grounded in Wis. Stat. §765.16(1m), which says that “Marriage may be validly solemnized” and officiated by judicial officers. Because performing marriages in the state is a “discretionary,” rather than a “mandatory” duty, Wisconsin judicial officers may simply “decline to act as an officiant at marriages generally,” the opinion concluded.

The Supreme Court of Ohio Board of Professional Conduct recently concluded that Ohio judges can't avoid performing same-sex marriages by not performing any marriages.

The U.S. Court of Appeals for the Sixth Circuit came to a similar conclusion with regard to a Kentucky county clerk, saying she can no longer apply her “no marriage licenses” policy.

To contact the reporter on this story: Bernard J. Pazanowski in Washington at bpazanowski@bna.com

To contact the editor responsible for this story: Jeffrey D. Koelemay at jkoelemay@bna.com.

Full text at http://pub.bna.com/lw/wisconsinop151.pdf.