Ohio judges who perform civil marriages may not ethically refuse to perform civil marriages involving same-sex couples while continuing to perform marriages involving opposite-sex couples.  Ohio judges may not ethically decline to perform all marriages in order to avoid marrying same-sex couples based on their personal, moral, or religious beliefs.  These conclusions are set forth in an advisory opinion issued today by the Board of Professional Conduct of the Supreme Court of Ohio.

Advisory Op. 2015-1 responds to two requests received by the Board last month, including one submitted on behalf of all Ohio municipal and county court judges.  The opinion requests were received following the U.S. Supreme Court decision in Obergefell v. Hodges that invalidated several state laws restricting or prohibiting same-sex marriages.

The advisory opinion states that a judge’s decision regarding the performance of civil marriages must be made in a manner consistent with the judge’s oath of office and six specific provisions of the Code of Judicial Conduct.

Advisory Op. 2015-1 quotes the statutory oath of office that obligates each judge to support the U.S. and Ohio Constitutions, administer justice without respect to persons, and impartially perform all judicial duties.  Specific provisions of the Code of Judicial Conduct cited by the Board require a judge to comply with the law, act in a manner that promotes judicial independence, integrity, and impartiality, perform duties fairly and impartially, perform judicial and administrative duties without bias or prejudice, and avoid allowing external influences to affect the performance of judicial duties.

The opinion observes that a judge’s reliance on personal beliefs as a basis for declining to perform some or all civil marriages may require disqualification from cases in which the sexual orientation of the parties is at issue.  Judges are further advised that personal, moral, or religious beliefs should not be a factor in the performance of administrative duties, including the supervision of court personnel, and to be aware of the impact that a decision to decline to perform all civil marriages may have on the public’s perception of the judiciary.

Advisory Op. 2015-1 is “a restatement of core tenets that have long governed judicial conduct and continue to guide the proper and ethical performance of a judge’s constitutional and statutory obligations.”  The opinion offers advice similar to that provided by ethics authorities in four other states—Arizona, Louisiana, Nebraska, and Pennsylvania.

The advisory opinion does not answer the question of whether Ohio statutes authorizing the performance of civil marriages by judges are mandatory or permissive.  The Board’s authority to issue advisory opinions extends only to providing interpretations of rules and codes adopted by the Supreme Court that govern the professional conduct of lawyers and judges.  As such, the Board is not permitted to address questions of statutory construction or interpretation.

Advisory Opinions of the Board of Professional Conduct are nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

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