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Could Supreme Court Justices Be Forced to Perform Same-Sex Marriages?

The Arizona Supreme Court Judicial Ethics Advisory Committee has issued their opinion that judges who perform marriages cannot discriminate against same-sex marriages.

Religion Clause:

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.
Now, that's just Arizona but one could easily see this becoming a national issue. What's interesting is that Justices Ruth Bader Ginsburg and Elena Kagan have both performed same-sex marriages in the past. Justice Clarence Thomas officiated at the wedding of Rush Limbaugh and a woman on May 27, 1994. Now, could Clarence Thomas be forced to officiate a same-sex wedding? I don't think we're there yet but one could easily see how this could become an issue. If a Supreme Court Justice agrees to marry men and women, they could be under severe pressure to marry same-sex partners.

Something tells me that conservative justices simply won't be agreeing to marry anyone in the near future.


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