Wyoming Supreme Court Censures Judge Who Refused To Perform Same-Sex Marriages

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.]

Kashmir Court Employees Must Offer Regular Prayers At Proper Time To Get Raises

According to WIO News, the new Chief Justice of the Supreme Court of Pakistan-Occupied-Kashmir has told court employees that their annual salary increases will turn on their offering prayers regularly and at the prescribed times. Ibrahim Zia, who was sworn in Saturday as Chief Justice, instructed that offering prayers is now mandatory for all court employees.  He also told employees they must work with dedication, honesty and regularity to ensure speedy justice to the public.

Sri Lankan Judge, Expert In Law and Religion, Dies at Age 90

Christopher Gregory Weeramantry, a distinguished lawyer who served as a judge on the Supreme Court of Sri Lanka and later as a judge on the International Court of Justice died on January 5, 2017 at the age of 90.  The President of the Muslim Council of Sri Lanka published this tribute which outlines Weeramantry's contributions to law and religion:

Judge Weeramantry was undoubtedly well versed in all the major religions and its laws. He successfully interpreted legal principles with the teachings of the major religions of the world- Islam, Christianity, Hinduism and Buddhism in his deliberations at the International Court of Justice. He has been considered a pioneer in bringing religious jurisprudence to the international court of justice.

His biggest contribution to the Muslim community was his book, ‘Islamic Jurisprudence, An International Perspective’....

Weeramantry was also known for having presided over a 1996 case on the International Court of Justice involving advisory opinions on the Legality of the Threat or Use of Nuclear Weapons in which he issued a dissenting opinion taking the position that the use or threat of use of nuclear weapons is illegal in all circumstances.

Alabama's CJ Roy Moore Files Brief In Appeal of His Suspension

As previously reported, in September Alabama's 9-member Court of the Judiciary (COJ) concluded that Alabama Supreme Court Chief Justice Roy Moore violated various Canons of Judicial Ethics in issuing an order to state probate judges telling them they had a duty under Alabama law to refuse to issue marriage licenses to same-sex couples. The COJ suspended Moore from office for the remaining two years of his term.  This decision is now on appeal to a specially constituted bench of the Alabama Supreme Court, the regular Justices having recused themselves. Yesterday, Moore filed a 95-page brief setting out his arguments. The brief summarizes them in part as follows:

The JIC [Judicial Inquiry Commission and the COJ did not have the jurisdiction or authority to review the Administrative Orders of the Chief Justice, as such authority is placed solely in this Court.

The COJ violated Rule 16 by imposing a de facto removal (i.e., permanent suspension without pay) upon Chief Justice Moore without the unanimous concurrence of all sitting members....

All charges against Chief Justice Moore must be dismissed because they have no legal basis and are not supported by clear and convincing evidence.... 

Section 159 of the Alabama Constitution, which imposes an automatic suspension upon the mere filing of a complaint with the COJ, represents a gross violation of due process in violation of the Fourteenth Amendment....

The JIC violated the confidentiality mandated by the Alabama Constitution and Rule 5 by disclosing information about Chief Justice Moore’s matter prior to filing charges and the penalty should be dismissal of all charges.

Liberty Counsel issued a press release announcing the filing of the brief.

Candidate's Religious Views Become Issue In Montana Supreme Court Race

The conservative Christian religious beliefs of one of the candidates for Justice of the Montana Supreme Court-- attorney and law professor Kristen Juras-- has become a campaign issue. In endorsing her opponent Dirk Sandefur, the Bozeman Daily Chronicle last week said in part:

In an email sent to a colleague at the UM she stated, “After lots of prayer I decided to run…I think there are going to be a lot of cases affecting religious freedom that arise over the next several years, and I’d like to be part of the decision-making body that will be addressing those issues.”

Juras was quoted earlier this year by the Montana Christian Journal: “It is important to elect justices who respect all of our fundamental rights, including the free exercise of religion, and who have not pre-determined that one right should outweigh another.”

Just like [Republican nominee for Montana governor] Greg Gianforte, Juras uses “religious freedom” as a dog whistle in attempts to deny civil rights to the LGBTQ community. Juras’ bias and lack of experience make her unfit for the Supreme Court. Dirk Sandefur is hard-working, fair, and the only qualified candidate.

The Missoulian also raises questions about the impact of Juras' religious views.

Alabama Chief Justice Appeals Suspension With Cryptic Motion For Recusals

As previously reported, two weeks ago Alabama's Court of the Judiciary suspended Alabama Supreme Court Chief Justice Roy Moore for the remaining two years of his term on charges stemming primarily from his order to state probate judges telling them they had a duty under Alabama law to refuse to issue marriage licenses to same-sex couples despite controlling U.S. Supreme Court precedent to the contrary.  The decision has been followed by a series of appellate moves by Moore.  On Sept. 30, Moore filed a Notice of Appeal with the Alabama Supreme Court. Then on Oct. 10, Moore filed a Motion (full text) to recuse four current and three former Alabama Supreme Court Justices from hearing the appeal.  The grounds for seeking recusal of 6 of the 7 were filed only in a sealed affidavit with the following cryptic explanation:

Because Case No. 1150818 has been maintained under seal by the present and former justices who sat on that case, the argument for this section is not presented in this public filing. However, the facts presented in the attached Sealed Affidavit of Chief Justice Roy S. Moore amply demonstrate that the Justices, present and former, who sat on Case No. 1150818, have disqualified themselves by their biased and unconscionable actions in that case not only from participating in this case but also from playing any role in selecting a substitute Court.... Media organizations and members of the public, if they so choose, may intervene in Case No. 1150818 to demand that the records of that case be made public.

The motion also argued:

The selection of replacement Justices should be made by a random drawing from a pool of names consisting of all sitting circuit judges.

In an October 12 public statement, Moore urged the unsealing of the referenced case, saying in part:

I call upon the press to demand that the Alabama Supreme Court unseal Case No. 1150818 and, if necessary, to intervene in that case. The public has a right to know why I have requested that the justices, who participated in that case, be disqualified from playing any role in my appeal. The Court has refused my requests to unseal Case No. 1150818. I ask the Supreme Court and the media to act...

Religious Comment Does Not Invalidate Civil Protection Order

In Majeed v. Majeed, (OH App., Oct. 7, 2016), an Ohio appellate court held that a religious comment made by a magistrate at the end of a hearing at which the magistrate agreed to issue a wife a domestic violence civil protection order was not grounds for overturning the order.  The wife, who testified that her husband was Muslim, had the following exchange with the magistrate at the end of the hearing at which the husband did not appear:

The Petitioner: Thank you very much for your time. The Court: Be careful. Take care of yourself. The Petitioner: Yes, with God’s help I’ve been depressed and it’s the worst feeling in the world to feel like Jesus is not real. I just got back with Jesus and I’d like it to stay there.  The Court: An[d] He would like you to stay there also. The Petitioner: Yes, ma’am. The Court: Thank you, ma’am. The Petitioner: God bless.

The appeals court said in part: "there is nothing in the record to indicate that religious beliefs affected the trial court’s issuance of a domestic violence CPO."

Defendant Wears Religious Texts As Protest Against Judge

The New York Post reports (with accompanying photos) that on Wednesday a defendant charged with various drug offenses appeared in a Brooklyn, New York trial court wearing a shirt he had made from newsprint carrying Hebrew writings of the late Lubavitcher Rebbe. He also wore a paper hat carrying seven of the Ten Commandments.  Defendant Aaron Akaberi-- who has professed a series of different religious beliefs-- says he did this as a protest against the judge who had refused to allow him to read passages from Jewish texts into the record at an earlier pre-trial hearing. His hearing was adjourned to a later date.

Brooklyn District Elects First Hasidic Female Judge In New York

The Windsor Terrace Patch reports that Rachel Freier will become the first Hasidic Jewish woman elected as a judge in New York state.  Frier won 41% of the votes in a 3-way Democratic primary for 5th District Civil Court in Kings County.  The district encompasses various communities in Brooklyn.  Apparently Freier will be unopposed in the November election.  Freier, a mother of six and and attorney, is particularly known for her role in founding Ezras Nashim, an all-female volunteer EMT service for the observant Jewish community.

Obama Nominates First Muslim Federal Court Judge

As reported by National Law Journal, yesterday President Obama nominated (White House announcement) Abid Qureshi, partner in the D.C. law firm of Latham & Watkins, for a federal district judgeship in the District of Columbia.  Qureshi, a Harvard Law School graduate, is the first Muslim ever nominated for a seat on a federal court. A litigator whose expertise includes white collar defense, Qureshi is also the global Chair of Latham’s Pro Bono Committee. (Bio). Muslim Advocates issued a press release commending President Obama for the nomination.

Israel Appoints 7 New Muslim Religious Court Judges

In Israel yesterday, Israeli President Reuven Rivlin and Minister of Justice Ayelet Shaked spoke at a ceremony at the President's residence marking the appointment of seven new judges (Qadis) to Israeli Shariah courts that adjudicate Muslim personal status matters.  (Ministry of Foreign Affairs press release.) As reported by the Jerusalem Post, two new judges were appointed to the Shariah Court of Appeals, and five were appointed to Shariah regional courts.  Both Rivlin and Shaked expressed their hope that future appointment of Qadis would include women. Shaked said that she had asked the the sub-committee that recommends appointments for the names of female candidates. Apparently they did not produce any. A bill proposed in the Knesset last year would have required that at least one woman be on the list of recommended nominees, but the government coalition partner United Torah Judaism party vetoed the bill fearing it might set a precedent for Jewish religious court judges. (See prior posting.)

Commission Recommends Removal of State Judge On Various Grounds Including Resisting Same-Sex Weddings

In an opinion issued on Monday (full text), the Oregon Commission on Judicial Fitness and Disability recommended to the Oregon Supreme Court that Marion County Judge Vance Day be removed from office for violations of ten rules of the Code of Judicial Conduct.  Judge Day gained notice when he ordered his staff to screen wedding applicants to assure that any same-sex couples were directed to other judges.  The Commission found that this practice violated three separate rules of conduct.  In addition the Commission found that Judge Day violated Judicial Conduct Rules in connection with his interaction with individuals officiating at his son's soccer games; facilitating the handling of a firearm by a convicted felon who was on supervised probation, as well as personal out-of-court contacts with the felon who had been a Navy SEAL and awarded a Bronze Star; and by soliciting funds from attorneys to acquire military art to be hung in and around his Veterans Treatment Court.  Here is the written closing arguments submitted by Judge Day. Reuters reported on the Commission's opinion. (See prior related posting.)

Oregon Judge Faces Ethics Charges Over Refusing Same-Sex Weddings and Other Matters

The Oregon Commission on Judicial Fitness and Disability announced in a press release issued Tuesday that a hearing is scheduled next month on ethics charges filed against Marion County Judge Vance Day.  (See prior related posting.) Day has religious objections to same-sex marriage, and one of the charges against him is that before he decided to discontinue entirely performing wedding ceremonies, he had his staff screen wedding applicants to assure that he was not presiding over a same-sex marriage.  However Day, who is head of the Veterans Treatment Court, also faces five other unrelated charges including false statements, improperly allowing a veteran with a prior felony conviction to handle firearms and posting a picture of Adolph Hitler in the county courthouse.  According to CBS News, the Hitler portrait was part of a collage included in memorabilia of a local doctor who had served in World War II. The portrait was surrounded and partially obscured by pages from the doctor's diary, medals and photos.

Meanwhile, The Oregonian reported yesterday that another Oregon state trial court judge, Washington County Judge Thomas Kohl, has also stopped performing weddings now that same-sex marriages are legal.  Kohl has written and speaks widely in churches and prisons about the transformative power of faith.

Ohio Supreme Court Board Issues Advisory Opinion On Judges' Refusal To Perform Same-Sex Marriages

The Ohio Supreme Court's Board of Professional Conduct has issued an advisory opinion on Judicial Performance of Civil Marriages of Same-Sex Couples.  In Opinion 2015-1 (Aug. 7, 2015), the Board concluded:

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.)

Afghan President Appoints First Woman To Supreme Court, But Clerics Object

Afghanistan President Ashraf Ghani has appointed the country's first female Supreme Court judge according to yesterday's Euronews.  Ghani fulfilled an election promise by appointing Anisa Rassouli, former head of the Afghan Women Judges Association.  Rassouli's appointment must still be approved by Parliament. Ghani says he has religious approval for the appointment, but Islamic clerics on the Ulema Council of Afghanistan say that Sharia law prohibits a woman from occupying the position of judge.

Texas Judge Disciplined For Religious-Cultural Bias

The Texas State Commission on Judicial Conduct last week issued a Public Admonition (full text) against Texas state trial court judge Carter Tinsley Schildknecht, finding in part that she:

manifested a religious and/or cultural bias by describing District Attorney Munk as a “New York Jew” and by criticizing a prosecutor’s beard because it made him look like a “Muslim.”

Other charges involved a court session that lasted until 4:00 AM without breaks and an order refusing to allow the District Attorney to enter the court room. Besides the admonition, the judge was ordered to complete an additional four hours of education with a mentor on open courts and eliminating bias. Texas Lawyer reports on the Commission's action.

Arizona Says Judges Cannot Refuse To Perform Same-Sex Marriages If They Perform Others

The Arizona Supreme Court Judicial Ethics Advisory Committee has issued Revised Advisory Opinion 15-01 (March 9, 2015), Judicial Obligation To Perform Same-Sex Marriages. It provides in part that:

a judge who chooses to perform marriages may not discriminate between marriages based on the judge’s opposition to the concept of same-sex marriage.

Rule 2.3(B) of the Arizona Code of Judicial Conduct provides that a judge shall not, "in the performance of judicial duties," manifest bias or prejudice based upon sexual orientation....

Refusing to perform same-sex marriages, while agreeing to perform opposite sex marriages, also violates Rule 2.2 of the Code which provides that "[a] judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially."

...  The JEAC concludes that a judge may choose for various reasons not to conduct any marriages at all because performing marriages is a discretionary, not mandatory, function. A judge may also choose to conduct marriages only for friends and relatives to the exclusion of all others. Such a choice would not run afoul of Rule 2.3(B) because it is not based on sexual orientation. Of course, a judge who performs marriages only for friends and relatives would violate Rule 2.3(B) if the judge refuses to perform marriages for same sex friends and relatives.

AP reports on reactions to the ruling.

Suit Challenges Quote From British Jurist Posted In Rhode Island's High Court

A Rhode Island lawyer this week filed a federal lawsuit challenging a quotation from British jurist Sir Edward Coke inscribed above the bench of the Rhode Island Supreme Court. The complaint (full text) in Gelfuso v. Suttell, (D RI, filed 3/4/2015) alleges in part:

6. Inscribed above the bench of the Rhode Island Supreme Court are the words "Non Sub Homine Sed Sub Deo Et Lege" ....

7. On information and belief, this is a phrase which translates as "Not under man, but under God and law."

8. Plaintiff considers this inscription as conveying a government endorsement of religion and a particular religious viewpoint with which Plaintiff does not agree.

Plaintiff not only seeks an injunction against displaying the inscription, but also an injunction against the court's continued distribution of an allegedly misleading publication that describes the quote's history and Lord Coke's relationship with Rhode Island's founder Roger Williams. The complaint alleges:

15. Though the publication portrays Lord Coke as a defender of freedom and equality defying a tyrannical king, Coke had actually been a persecutor of religious and political dissidents in England who had supported the ecclesiastical court of the High Commission and its counterpart the Star Chamber.

16. While Coke had mentored Roger Williams as a youth, Roger Williams later denounced Coke's views regarding religious persecution, the separation of church and state, and the Church of England, which eventually led to his own religious persecution and the founding of Rhode Island.

The full complaint makes fascinating reading for fans of English legal history. GoLocalProv carries a lengthy story on the lawsuit.

Court Dismisses Religious and Speech Objections To Requirement That Witness Stand To Be Sworn In

In Pellegrino v. Meredith, (ED CA, Feb. 23, 2015), a California federal magistrate judge dismissed, with leave to amend, a suit for damages against a traffic court judge and the county by Anthony Pellegrino who, as defendant in a traffic case, was told that he must stand while being sworn in as a witness.  Pelligrino refused, telling the court: "I only rise before my Lord and Savior Jesus Christ."  At that point the bailiff escorted Pellegrino outside the courtroom for an hour. When Pellegrino returned he was escorted to the bench area and sworn in before he had a chance to sit down.

The court rejected Pellegrino's free exercise claim, saying that at most he suffered an "insubstantial inconvenience" for refusing to stand.  The court also rejected Pellegrino's claim that his refusal to stand was protected expressive conduct.

The opinion recounts numerous incidents in which Pellegrino harassed government officials, raising frivolous arguments, asking government officials to show him their oath of office, refusing to pay filing fees, and the like.  In dismissing Pellegrino's claims, the court said:

Given the context of the situation, it is clear from this Court’s reading of the complaint that Defendant Meredith viewed Plaintiff’s refusal to stand while taking the oath as another incident in a long line of immature, disrespectful and frivolous protests by Plaintiff throughout his court proceedings.

Judge Reprimanded For Questioning Defendant Over Religious Head Covering

In In re Ladenburg, (WA Commn. on Judicial Conduct, Feb. 20, 2015), the Washington Commission on Judicial Conduct in a consent order reprimanded municipal court judge David Ladenburg for challenging a criminal defendant wearing a fedora in the courtroom for religious reasons. The facts, as stipulated by the parties, showed that the judge told the defendant who said the hat was worn as part of his Jewish belief that he must bring evidence supporting his decision to wear that particular kind of head covering.  The judge threatened otherwise to have it removed.  In defense of his actions, the judge said he was unfamiliar with wearing of a fedora instead of a yarmulke. In 2006, the same judge had been issued an admonishment by the Commission for requiring a Muslim woman wearing a headscarf for religious reasons to remove it or leave his court room. (See prior posting.) The Tacoma News Tribune reports on yesterday's Commission action.