A judge who performs civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages, based upon his or her personal, moral, and religious beliefs, acts contrary to the judicial oath of office and Jud. Cond. R. 1.1, 1.2, 2.2, 2.3, 2.4, 2.11, and Prof. Cond. R. 8.4(g).
A judge who takes the position that he or she will discontinue performing all marriages, in order to avoid marrying same-sex couples based on his or her personal, moral, or religious beliefs, may be interpreted as manifesting an improper bias or prejudice toward a particular class. The judge’s decision also may raise reasonable questions about his or her impartiality in legal proceedings where sexual orientation is at issue and consequently would require disqualification under Jud. Cond. R. 2.11.The Board refused to address questions regarding assignment or rotation of judges conducting marriages at a court.
Yesterday's Columbus Dispatch reported on the advisory opinion. The issue was highlighted in Ohio last month when Toledo Municipal Court Judge C. Allen McConnell's bailiff told a same-sex couple who had been issued a marriage license that McConnell does not do "these types of marriages." (See prior posting.)