The ACLU and I have told Attorney General Marty Jackley that county officials have no right to ignore the Supreme Court’s ruling in Obergefell v. Hodges and refuse to issue marriage licenses to same-sex couples.
The Board of Professional Conduct of the Supreme Court of Ohio appears to agree, at least when it comes to judges:
Every judge is required to take an oath prior to each term of office in a form prescribed by R.C. 3.23:
I, (name), do solemnly swear that I will support the Constitution of the United States and the Constitution of Ohio, will administer justice without respect to persons, and will faithfully and impartially discharge and perform all of the duties incumbent upon me as a judge according to the best of my ability and understanding. [This I do as I shall answer unto God.]
The oath represents the judge’s solemn and personal vow that he or she will impartially perform all duties incumbent on the office and do so without regard to the status or class of persons or parties who come before the court. The oath is a reflection of the self-evident principle that the personal, moral, and religious beliefs of a judicial officer should never factor into the performance of any judicial duty. When a judge takes the oath of office, “he or she yields the prerogative of executing the responsibilities of the office on any basis other than the fair and impartial and competent application of the law….” Mississippi Judicial Performance Com’n v. Hopkins, 590 So.2d 857, 862 (Miss. 1991). A judge’s oath to support the constitutions of the United States and the State of Ohio requires the judge to recognize and adhere to binding court interpretations of the same. A judge’s unilateral decision to refuse to perform same-sex marriages based on his or her own personal, religious, or moral beliefs ignores the holding in Obergefell and thus, directly contravenes the oath of office [Board of Professional Conduct, Supreme Court of Ohio, Opinion 2015-1: “Judicial Performance of Civil Marriages of Same-Sex Couples,” 2015.08.10].
The argument about fealty to the oath to the uphold the Constitution would apply as much to South Dakota public officials as to Ohio judges. The Ohio board goes further and says judges can’t even refuse to perform all marriages based on personal, religious, or moral beliefs. Such an effort to avoid marrying same-sex couples signals “an improper bias or prejudice toward a particular class” and “may raise reasonable questions about his or her impartiality in legal proceedings where sexual orientation is at issue.”
We have yet to hear of a test case where a county official hassles a same-sex couple seeking a marriage license in South Dakota. But happy couples, if you do catch heck, keep that Ohio opinion handy.
Progressives do not use the malapropism, “same-sex marriage” because it’s just marriage to us.
Good point Larry. Good response by the Ohio board.
South Dakota is dragging its feet in paying attorney fees for Marty’s loss in its marriage equality case.
http://rapidcityjournal.com/news/local/appeals-court-affirms-south-dakota-judge-s-ruling-on-gay/article_d26b21fa-a154-5745-af58-98d5ae2c37b1.html
The Ohio oath of judges states that if they do not follow the constitution ‘they will have to answer to God’. Is that the penalty. If they have religious convictions on this they will have to answer to God if they do or do not.
That pretty much must make the Ohio oath for judges pretty much completely toothless.
Separate marriage ritual from civil unions. Separate church and state. Time to get past this mutual masturbation by both sides still fighting on this.