Friday, January 13, 2012

Dateline New York : Do Judges Have To Conduct Gay Marriages ? - Judicial Ethics (Updated)

Update- Link corrected below.

Mirrors of Justice links a Judicial Ethics Opinion that is published in the New York Law Journal. See their link at Can a Judge Refuse to Conduct a Gay Marriage? . I am hoping some discussion happens in the comment section.

I had this discussion with a Judge not too long ago relating to a controversy dealing with Justice of the Peace in Louisiana who did not do interracial weddings.

This Judge , who is a devout Christian, indicated to me that "the Wedding Business" would be shut down in his/ her office if it became a issue.

At first glance especially under New York Law , I think the committee answer to the questions it decided to answer are largely correct. That is in reality WEDDINGS are not the prime business of the Judicial branch and thus we see some options it is giving the Judge perhaps.

The issue raised here will happen more and more.

I am hoping some other legal blogs pick this Judicial opinion up today and discuss it too


Anonymous said...

Does being a "devout christian" mean that a person takes an oath to support and defend the Constitution of the United States, and then violate that oath? The guarantee of equal protection under the law was a part of The Bill of Rights section of the Constitution when that judge took his oath. It looks like being a
"devout christian" means being a lying hypocrite who will say anything, and use God's name to take any oath to get power to oppress others, and then violate his oath at his own pleasure.

Mark Spears said...

I did not mean my comment to be anonymous, I just mean't to type in the name and not log in on Google. Also let me add, that it is civil judges who obligated to equal protection under the law. Priests and ministers are free, and should always be free to practice whatever hatred and discrimination that they choose to practice.

James H said...

Mark I think some of the opinion hits on this.

First I think in most cases in the USA the opinion is right as to the role of weddings and the Judicial branch. While Judges often do Weddings it's not a prime Judicial function. In fact I suppose they don't have to do weddings at all.

I think the opinion aims to hit toward a reasonable compromise here.

It reminds of the Justice of the Peace case in Louisiana I referenced. Justice of the Peaces often make their personal income off fees for various services which weddings are a huge part.It was my position that if the Justice of the Peace did not want to perform interacial weddings well fine. But he could not act in discrimination like matter when he got that power to do so under color of law.

Now I am not sure how it works in New York. I imagine in most jurisdictions a "Real Judge" does not persoanlly benefit economic wise from performing weddings. At least they don't know here.

However as the Opinion acknowledges there is a need for a Judge not to give the appearance of not being being impartial.

Therefore what appears to be the suggestion that if the Judge has problems here that he should as a matter of course just do Weddings of Family and Friends.

Mark Spears said...

It is a matter of knowing that if a Judge does not recognize your equality so that he would preside over your entering into a marital contract just like anyone else, then God help you if you ever appear before such a person to face false charges. The main issue is that he has taken an oath to uphold the Constitution which guarantees equal treatment under the law, when he has no intention of anything but discrimination against homosexuals just because he hates a personality trait which we did not choose to have, and which we can not change. The preachers and the priests can do as they want, because I am not going to walk into a place where I know that I am hated anyway. But a Judge has of his own free will taken upon himself to protect my rights under the Constitution, and taken an oath to do so, and certainly as long as it is in the job description of a Judge to preside over the implementation of a marital contract, and if he has EVER done so for any two people, yet refuses to do so for any other two people, then he should be summarily impeached. I don't worry none about the ministers, as they are hypocrites anyway. The Bible tells them to show no respect for personage, in other words no discrimination, but they make it a big part of their religion to do the exact opposite of what the Bible says. Fortunately we are free to just ignore those people, but the government on the other hand is the only government that there is, and it is supposed to be the government of everybody, black or white, male or female, homosexual or heterosexual.

Mark Spears said...

Maybe you Catholics can understand it in these terms: How would you like it if a Judge said, "I don't shake hands with Catholics, and I have every right to my policy of refusing to shake hands with Catholics because my religion is true religion and not yours, but I am looking forward to presiding over your murder trial next week."

James H said...

Mark a couple of points.

First I think it is a leap and in fact does not fit the Judges that I know that might have problems doing a gay marriage as doing this on the basis of hate.

Further, while they might have disagreement with lets same sex relations I can't imagine , and in fact I know for a fact, that they would treat a gay person or couple or differently in various other aspect of the legal system.

What we have here is basically now the Judge entering a Ceremonal function to perform required solmenties for a civil service.

This is one reason why often this is quite optional for a Judge to do this and in fact in reality there are widely available options beside a Judge to do this civil ceremony or have someone to preside and do the function.

Further there would be and I think the opinion hints at this, various Church and State issues in some cases as to the Church. Especially as to some belief it is actually the couple themselves that enter into the Sacrament by consent ( which is Catholic theology some what). Thus a Judge puts himself into a somewhat ackward position.

For instance what if a couple came up to a Judge and said hey we have been remarried 3 times will you marry us. Well I actually think that in many areas the Judge would be free to go heck no go someone else. I am not sure that would mean he is prejudiced against divorce people.

I am not familar with the Laws of New York but again this if often very optional for a Judge to do.

James H said...

Now I will give you this. Lets in some hypothetical county there is no one NOT ONE not one Jutice of the Peace, not one Minister who would do a Civil Service for a gay person or couple and the Judge of course was the prime official officer. ( also assuming here that a "ceremony" might have be required by law)

Then a case might be made that a Higher Court would have to make sure that service was somehow granted if such a hypothetical hardship was found.

I have never researched that point but I can see something like that being ordered

Mark Spears said...

The big issue for me is not that a same sex couple could not find a Judge, a Justice of the Peace, or a MCC minister to perform a ceremony. This issue is that if a biased person, who violates his oath to uphold the Constitution, and refuses to perform a ceremony for a same sex couple because he considers homosexuals to be evil, is allowed to remain on the bench inspite of his demonstration of bias, how can any homosexual get a fair shake in a courtroom where he knows tha the Judge considers him to be an evil person? Like I said consider if the bias is toward Catholics. Suppose that a Catholic wishes to marry a Protestant before a Judge to make the expected baby legitimate while the Protestant undergoes conversion so that they can marry before a priest. When the Judge learns that one of this couple is a Catholic and refuses to perform the marriage because he considers Catholicism to be an evil false religion, and he just will not in his warped conscience perform the ceremony to legally join a nice Protestant to such an evil person as a Catholic. Now would you not just love to face civil or criminal action before such a Judge? Of course the evil Catholic can find someone else to perform the ceremony. Don't they sell ministerial credentials on the internet for $25 or so? The issue is the person with bias is allowed to be a Judge.

Anonymous said...

And, what is a better word than "hatred" when people consider me to be an loathsome, evil, despicable, sinful person because of a personality trait which I did not choose to have, and can not change, when these people have never met me, and I have never done anything to intentionally harm anyone. And it is not that they consider me an evil person, but they consider me to be the ultimate sinful person, so that men who are caught in very heinous adultery scandals are widely justified by people saying "well at least he did it with a woman!" I just don't know of any better word than "hate" for the bias, and the prejudice, and the discrimination, and the state of being reviled, which I experience every day of my life. It is something of a pipe dream, but I would like to experience a bit of fairness and equity in a court of law, just as though the Bill of Rights was real.

Anonymous said...

I should make it perfectly clear that the churches and minister have a right in America to continue to practice the hatred and bias which I described, just as I have a right to call it the hatred and hypocrisy that it is. I might be out of line to post comments on a religion blog, but the comments are about Judges refusing to preside over a contract because of bias, and these comments do not apply to priests refusing to conduct an ordinance or sacrament of his own church for a person he considers evil. Religion is free to practice hatred and bias, but the government should not be allowed to practice hatred and bias with impunity.

Mark Spears said...

I have also posted some comments on the "Mirror of Justice" link in this article, and there are some other good comments posted there.

Kurt said...

Judges have discretion at officiating at civil marriages. It is not a mandatory part of their job. Under NYS law, they can pick and choose if and who they officiate for.

Legal ethics require them not to do things that would raise questions as to their impartial adminsitration of justice.

A judge might just do marriages for friends. But I think it would be unwise for a judge to annouce publicly that he would do marriages for opposite sex strangers but not same sex couples. It woudl lead fair minded people to question if he could rule in an unbiased way in court hearings.

Anonymous said...

It is rather obvious... eventually there will not be "Christian" judges in America. For they will not reject their God in order to marry homosexuals. Down with Christ and welcome Antichrist. It is payday someday.

Anonymous said...

I love that term, "fair minded people". How sad... beware when good is called evil and evil good. Humanism is destroying a once great nation. They are reaping what they are sowing. Thus, down deep they still remain empty. They realize something is missing from their lives...Christ.

Anonymous said...

Is anyone searching for truth on this page? Do you love darkness so... that you will even distort the truth to hold onto the evil which possesses your soul? Which chapter in the New Testament can you state is historically inaccurate? Which miracle do you know never occurred?
This race into sexual darkness... in light of eternity will not bring happiness. I realize if you are a homosexual this cuts. I also realize that God spoke through Christ, and enough of His statements are written in the Bible. Yea... it is real. "But I was born this way"... Cool... I was born with the desire to have sex with most of the women I meet, but God says no, and so it is not for me. I would suggest you man up, get a grip on God's word, and Spirit, and see if He will help you in this life. If not He will certainly come through in the next. Sometimes life is a test. He still loves you, though yea... sometimes life mean struggle. Hope to see you in heaven. It's the only way to go!