Opinion: Judges can’t refuse to perform same-sex marriages

Nebraska state capitol in Lincoln.

Nebraska state capitol in Lincoln.

Nebraska state capitol in Lincoln.

Nebraska state capitol in Lincoln.

OMAHA, Neb. –— Nebraska judges and court officials cannot refuse to perform same-sex marriages unless they refuse to perform all marriages, according to a state judicial ethics group.

The opinion released last week by the Nebraska Judicial Ethics Committee answers the question of whether a judge or clerk magistrate can refuse to perform marriages for same-sex couples for religious reasons, even if the official refers the same-sex couple to another official willing to perform the ceremony.

The ethics committee, made up of seven state judges, determined that the U.S. Supreme Court‘s ruling last month that legalized same-sex marriage across the country does not allow Nebraska judges to refuse to perform gay marriage ceremonies if they also perform opposite-sex marriages.

“If a judge is willing to perform traditional marriages, his or her refusal to perform same-sex marriages would be a manifestation of bias or prejudice based on sexual orientation when a valid law permits such couples to marry, even if the judge states that the reason is based on sincerely held religious beliefs or upon a personal belief,” the opinion said.

A refusal to perform a same-sex marriage “would question the integrity and impartiality of the judiciary as well as giving the appearance of impropriety,” a violation of the Nebraska judicial conduct code, according to the opinion.

The committee said judges and clerk magistrates can avoid conflicts with their religious objections by refusing to perform all marriages.

Nebraska law allows clergy, judges, retired judges, clerk magistrates and retired clerk magistrates to perform marriage ceremonies. A clerk magistrate is a court official who assists in managing a court’s administrative tasks and presides over some matters.

The opinion was sought by the Nebraska Administrative Office of the Court. A message left Thursday for State Court Administrator Corey Steel was not immediately returned.

The opinion is advisory, but a complaint could be filed against a judge or court official if he or she does not follow it, leading to a judicial disciplinary committee hearing.

The high court’s ruling has sparked questions of religious protections for officials opposed to same-sex marriage across the country. Just this week, a Texas couple was granted a marriage license only after filing a federal lawsuit against a county clerk who had said she wouldn’t issue licenses to same-sex couples because of religious objections.

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