Originally appeared in National Review.
In December 2014, a reporter at a local Wyoming paper, the Pinedale Roundup, called the town’s municipal judge, Ruth Neely, to ask if she was “excited” to be able to perform same-sex marriages. (Two months earlier, the state had decided not to defend its same-sex marriage ban after it was struck down by a federal judge.) In the ensuing conversation and later ones, Judge Neely explained that she’d never been asked to perform a same-sex marriage and mentioned her religious belief that marriage is the union of a husband and wife. She also made clear that her beliefs would not prevent any same-sex couple in the area from getting married. (They have not, in fact, done so, either: To this day, no one has asked her to perform a same-sex wedding.) Ominously, the reporter later called Judge Neely and offered not to run the story if she would “state a willingness to perform same-sex marriages.” This odd reaction to the judge’s response to a hypothetical question was a portent of further trouble.
That trouble came after the story was published, when it was sent to the executive director of the Wyoming Commission on Judicial Conduct and Ethics. The Commission started an investigation of Judge Neely and eventually charged her with four ethical violations a few weeks later. A panel of the Commission determined that she was guilty, and recommended that the Wyoming Supreme Court remove her from the bench On March 7, the Wyoming Supreme Court issued its opinion in the case. In a 3-2 decision, the majority rejected the recommendation to remove Judge Neely — since she had, to this point, only expressed her beliefs — and instead chose to publicly censure her for violating three ethics rules. Specifically, the majority determined that she had undermined confidence in the judiciary by not acting fairly and impartially and by manifesting bias against the state’s citizens based on their sexual orientation. The majority also said: “She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies.”
Two justices “vigorously” dissented. They argued that the judiciary should not add ideological criteria to the qualifications for judges established by the legislature. They also criticized the majority’s test for determining when a judge’s impartiality could be questioned, arguing that the appropriate “test cannot be whether some individual subjectively might be offended by what he or she heard or saw. Given the almost limitless capacity for people to take offense or feel ‘unwelcome,’ this would put every judge constantly at risk of being brought before the Commission to face ethics charges.” The dissenting opinion also quotes a Pennsylvania ethics decision that seems extremely prescient when applied to Judge Neely’s situation:
Indeed, if appearances were gauged without reference to the full and true facts, then false appearances of impropriety could be manufactured with ease by anyone with personal or political animus toward a judge.
Most importantly, the dissent points to Article I, §18 of the Wyoming Constitution, which “guarantees that any person can hold ‘any office of trust’ regardless of ‘his opinion on any matter of religious belief whatever.’” Under the majority decision, the dissent explains, “To avoid ethics charges like these, judges then must pass a religious test indicating that they have no religious beliefs that would prevent them from performing same sex marriages, or be precluded from performing any marriages.” The majority’s reasoning thus reduces “the constitutional guarantee of a robust principle — ‘free exercise’ — to a minimal ‘free belief.’”
The majority’s decision in Judge Neely’s case is similar to ethics decisions offered in a handful of other states. Some are even more onerous. The Ohio Supreme Court has said that:
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.
As the Wyoming dissent clearly shows, these kinds of rules create a de facto ideological, and often religious, test for qualification as a judge. A test totally extraneous to real concerns about bias and impartiality.
Judge Neely’s plight is instructive. While it is certainly positive that she did not lose her job, she has now been labeled as biased and her discretionary authority to determine which marriages she performs will be micromanaged by the judiciary — all because she shared her beliefs in response to a hypothetical question from a reporter.
To stave off a hypothetical violation of constitutional rights, the court has sanctioned an actual violation of constitutional rights. And that should worry all Americans, regardless of their views on same-sex marriage.