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Judicial Ethics and the Same Sex Marriage Debate
by Hon. Bob Pirraglia

One of the most contentious issues on the current American political scene involves the debate over the pros and cons of the legalization of same sex marriages. Proponents say the issue is one of basic fairness and, constitutionally, of equal protection. Opponents say that culturally, traditionally and legally, marriage has been defined over the millennia as the joining of a man and a woman “in lawful wedlock.”

While this all makes for an interesting intellectual discussion of a most controversial topic, what makes it of particular interest to judges and those who provide for their education is that like so many unresolved policy issues facing our nation, this debate has been framed in legal terms for resolution in a court of law. And for the judges confronted with deciding such cases, this involves a keen understanding and a studied application of their state constitutions and laws as well as the Canons governing their behavior both on and off the bench.

The Iowa Example
Early in 2009, a unanimous Iowa Supreme Court declared a state law banning same sex marriages was unconstitutional, based on the Court’s interpretation of the equal protection clause of the Iowa state constitution. This ruling presented Iowa judges who had the discretion to solemnize weddings along with local clergy with a dilemma. If they were personally opposed to such “marriages,” in view of the Court’s decision, must they perform them? And if they refused to perform them, could they be forced to perform them by another judge and/or ultimately by the same state Supreme Court that had overturned the ban in the first place. And if they refused to perform such marriages, could and would they subject themselves to an ethics complaint based on bias and prejudice that could result in their reprimand, censure, suspension, and removal.

And what if they were asked about their position on these matters while attending a public gathering, especially when they were engaged in a campaign for election/re-election? Could they say they were personally opposed to such relationships without also saying that notwithstanding, they were bound by law to comply with the decision of the Supreme Court in this regard?

These were the very types of questions that were discussed and debated at an educational program created by judges from the Judicial Division of the ABA and presented last June to a couple hundred Iowa judges in Des Moines.

What made the program particularly helpful to troubled attendees is that the presenters took a point-counterpoint approach to each of these questions in the hope of providing the judges in attendance with a useful ethical framework within which to make the hard calls dealing with this difficult issue involved.

An Issue Coming Your Way
Even for those states where there is a legally intact ban on same sex marriages, this is an issue where judges still need education and guidance. Among the questions these jurists might face are these:

• What if a same sex couple married in Iowa comes to a state that doesn’t recognize such marriages, establishes residency and then later petitions a state court for a divorce. Must the judge personally opposed to such unions hear and decide the case in comportment with the “full faith and credit” clause of the U.S. Constitution?
• Can such a judge as a matter of conscience refuse to hear such a case by recusing himself/herself?
• What if the pastor of a judge’s church asks the judge to give his/her opinion on such “marriages” or more difficult still, what if this cleric asks the judge to publicly condemn such unions?
• What if a judge is asked by a same sex couple seeking a divorce to order the clerk charged with taking and filing the divorce petition to take it after he/she refused to do so “on religious grounds?”

I could go on but these are just some of the issues judges all across the nation will soon be confronted with as this contentious debate makes its way across America.

The Need to Prepare
Whether you create and implement such an interactive program using your own resources or by reaching out to an organization like the ABA, this is an emerging issue that like it or not will confront your state judiciary in the immediate years ahead. And the sooner the hard-to-make decisions this issue gives rise to are discussed and debated by your judges, the better prepared they will be to answer the challenging personal and professional questions the same sex marriage issue will present to them.

For further information on the Iowa program, contact Eugenia Taylor at the ABA in Chicago at 312-988-6716.