In a 3-2 opinion yesterday, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. In
Neely v. Wyoming Commission on Judicial Conduct and Ethics, (WY Sup. Ct., March 7, 2017), Justice Fox wrote for the majority, saying in part:
This case is not about same-sex marriage or the reasonableness of religious beliefs.... This case is also not about imposing a religious test on judges. Rather, it is about maintaining the public’s faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law, independent of outside influences, including religion, and without regard to whether a law is popular or unpopular.
Responding to petitioner's free exercise argument, the majority stated:
Allowing Judge Neely to opt out of same-sex marriages is contrary to the compelling state interest in maintaining an independent and impartial judiciary.
However, rejecting the Commission's recommendation that Judge Neely be removed from office, the majority said:
Weighing these factors, we find that Judge Neely’s misconduct warrants a public censure. We further find that Judge Neely must perform her judicial functions, including performing marriages, with impartiality. She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies.
Justice Kautz, joined by Justice Davis, dissented, saying in part:
The majority’s position that Judge Neely violated Rule 1.2 is based on the mistaken conclusion that Judge Neely refused “to follow the law of the land.” As discussed above, the undisputed evidence shows that Judge Neely made no such refusal. She did not state that she would deny marriage to same sex couples, but rather said she would assist such couples in finding someone to perform their civil marriage ceremony. The law does not require Judge Neely personally to perform every marriage.
Focusing on the majority's free exercise argument, the dissenters said in part:
Apparently some individuals might find it offensive that Judge Neely said she would decline to personally perform a same-sex marriage and instead would refer them to someone else. There is no compelling state interest in shielding individuals from taking such an offense.
AP reports on the decision.
[Thanks to Gabe Rusk for the lead.]
