Hypothetical legal question: suppose they legalize gay marriage ...

Great Debates
1

First off, let’s not get off on a pro-gay-marriage vs. anti-gay-marriage debate.

Let’s pretend that “they” legalize gay marriage in the US. As in, gay people can actually marry and have all the rights that come with it.

Now let’s pretend that Bob and Jim fall in love and want to make it forever. So they go to the nice local Judge … who has a BIG moral issue with this and doesn’t want to do the ceremony.

For the purpose of this discussion, let’s say the Judge is (insert any religion that would normally have a problem with gay marriage).

The question is: legally, would the Judge have the right to refuse to perform the ceremony?

SHOULD the Judge have the right to refuse to do it?

Would the situation be different if there was another Judge in town who was willing to do it? What if the Judge with the problem with it is the only one?

On one hand, Judges are public servants and are subject to Uncle Sam’s anti-discrimination laws. On the other hand, there is no such thing as a “private” Judge. If you’re a Judge, you have to work for the public.

If you feel the Judge should do the ceremony regardless of his/her religious beliefs, does this same rule apply to, say, medical students being forced to learn to do abortions?

NOTE: I was just using that as an example, let’s not turn this into another abortion debate, k?

Where do the Judge’s rights to live according to his/her religion fall compared Bob and Jim’s right to be married?

(This discussion started with a friend last night, and it originally involved me telling him of a wedding that just took place here locally. The bride was 15 and pregnant, the groom was like, 17. The groom enlisted in the military and was about to be sent to Iraq. The bride’s parents gave their consent because they wanted the baby to be born legitimate AND everyone wanted Mom and the baby to have medical coverage and rights to money if Dad should go off to war and get killed. The Judge involved reluctantly did the ceremony (after a firm “You shouldn’t have gotten into this situation to begin with and you’re too young to get married”) lecture for the baby’s sake. I wondered aloud if the Judge could have legally refused to do the ceremony on account of the bride’s age even though her parents gave consent, and then we went on from there.)

2

I am not a lawyer, but…

The only way, to my knowledge, that a judge could legally avoid marrying two consenting people is by finding another fellow who can do it. He is not acting on behalf of his faith, but rather his government, which has no religious stance or beliefs. Regardless of how he personally feels, the law must be upheld. If the law says marriage licenses can be issued to same-sex couples, then a justice of the peace cannot deny them one through action or inaction.

3

It works in a similar fashion, IIRC, for doctors and abortions. They don’t have to learn how to perform abortions, but neither can they deny their patients a referral to a doctor who can should they request one. While you may attempt to dissuade your patient from that course, when push comes to shove you have no legal right to stand in their way if the procedure involved does not threaten their life.

4

/hijack

but neither can they deny their patients a referral to a doctor who can should they request one.

Yes they can if they are in a state that doesn’t require doctors to do referrals for abortion. West Virginia is one of those states, I imagine there are at least a few others.

/end hijack

5

I think it’s difficult to compare doctors and judges. Judges are officers of the court and bound by law to uphold the law, whereas being a doctor is essentially a private profession that has legal guidlines and laws governing it.

The judge would have to make sure the wedding was performed, even if he didn’t want to. If he was the only judge in the county, he’d have to perform the ceremony or give up his job. By the way, I have no idea what I’m talking about, but this seems logical to me. I could be wrong.

6

Yes, he has absolute right to refuse to do it - by immediately resigning from his position. However, if he wishes to keep his position he has the duty to officiate any marriage ceremony legal in his state, regardless of his personal views of the two people involved. I wouldn’t have a problem if he could find a colleague to do it within a reasonable amount of time, but if he’s the only one available, I see his choices as limited to the above.

Peace-DESK

7

Well, what about judges who object to interracial marriages and things like that. They can’t exactly refuse, can they?

8

Wait a minute-you don’t need a JUDGE to perform a civil ceremony. The county clerk can do it, & do every day. In fact in LA county judges do NOT perform wedding ceremonies on county time. They have a little cottage industry- $500 a pop on their time. BTW, judges declare conflicts all the time, recuse themselves from cases & do NOT have to give a reason. Why not the same here?

9

IMHO, the first question is whether the Judge has a legal obligation to perform the marriage.

In New Jersey, judges have the power - but not the duty - to perform marriages. So I can ask my cousin the judge to do my marriage, and he can say ‘no, I’m busy that day.’

Similarly, in New York, rabbis have the power to perform marriages. But that doesn’t mean that they have to marry a Jew to a Gentile.

A more interesting question comes up when the public servant is obligated by law to perform to the marriage. Like the County Clerk. In that case, I would say yes - the clerk MUST marry Bob and Jim. IMHO, if he refuses, you could go to court and get a writ of mandamus – a piece of paper ordering a public officer to do his job.

This situation comes up from time to time in the context of gun licenses. Often there will be a “shall issue” law, but the local police chief won’t issue the proper papers. AFAIK, in theory one can go to court and force them to give you the license.

Disclaimer: I’m kinda shooting from the hip here.

10

The way I know about the policy of the law in Western Christianized society, it is universally required that marriage be between a man and a woman; so that if either party is not a functionally complete man or a complete woman (sexually operative), the marriage is not valid; meaning to say no marriage actually is realized as a juridical entity, notwithstanding the officiation of the minister and the consent of the parties; and either party can ask the appropriate court to declare the marriage not to have ever been realized.

The ideology of the law is that marriage is for the procreation of children and for the orderly use of human sexuality. If babies are not possible, then orderly use of sex is the other necessary purpose of marriage. And the orderly use of sex is between a man and a woman, in accordance with the traditional convention of Western Christian society.

So, there has got to be a change in the law to the effect that not only a man and a woman but also two of the same sex can contract a valid marriage.

Why would two of the same sex want to have a marriage when they can live together and have sex the ways they can manage as best as they can be resourceful and skillful?

The important advantages of marriage are the recognition of the law and thus of society; and also very important the question of property relationships.

Such a law can only be enacted when society is advanced sufficiently in its liberal attitude, to accept the idea that all the rights and obligations can also be contracted and enforced by law should two persons of the same sex want to have a legally constituted relationship analogous to conventional marriage, even though no possibility of children ever would be possible in such a relationship.

If you ask me, I say I am in favor of such a law. In the absence of such a law, then people will just have to accept same sex partners living in as in a common law marriage, i.e., cohabitation without the protection and supervision of the law. And should the two partners have troubles between themselves, they cannot look to the law for redress in the manner of spouses in a conventional marriage legally entered into by the partners.

Susma Rio Sep

11

I think this topic needs a better title, like “Can Judges Refuse to Perform a Marriage Ceremony?” People who are not interested in another discussion of gay marriage may not be reading this. Would the OP consider requesting a title change from the mods? I think the question is an interesting one, particularly if possible examples are increased, as Guinastasia suggested with interracial marriages.

12

This was the only part you needed to make your point. Why did you use gay marriage and abortion to show examples? And then after saying you don’t want this to move in those directions you hijack your own thread about an abortion question? It sure sounds like it. Esspecially with the title you used.

If you really want thought to go into the answers given you should have left out the highly emotional examples you used. Were they given to try to just make this another gay/aniti-gay marriage and pro-choice/pro-life argument?

13

I was married in New York State by a judge in 1964. He came and performed the ceremony on a voluntary basis. IIRC we paid him. He was someone my Father-in-law knew.

14

Married? In 1964? Man, you missed out on being single in the late 60’s? No wonder you’re so bitter.

15

IMO, a county clerk could not refuse. Period. Regardless of personal feelings. It would never get to a court order, the clerk would ask another clerk to do it. I know civil servants often are lazy, but hell, it takes 1 minute, including paperwork.

16

By the way, one of the more celebrated U.S. Supreme Court decisions - Marbury v. Madison - involved a suit to force a public officer (James Madison) to perform his duty – deliver a commission

17

**

Actually, it varies from state to state. Some laws consider only the gender on the birth certificate. Others are based on what set of genitals the individuals in question have. This has been discussed in many GD threads.

Besides “trouble between themselves” same sex couples also can’t turn to the law in cases of inheritance or any other issue that designates a spouse next of kin.

18

Doc, I don’t think Susma’s post is worth the effort of deconstructing.

As for issues of inheritence, power of attorney, etc. how hard is it currently to designate another person as having all the rights equivalent to a spouse? Seems to me an “equivalent to marriage” contract wouldn’t be that hard to work out.

19

I found the use of “traditional western Christian marriage” rather than ‘traditional marriage’ to be a redeeming feature.

20

Actually Bryan, in order to get some of the same rights that straight married couples have automaticlly, my partner and I would have to draw up several different documents with the help of a lawyer. And things like wills are still challenged in court by narrow minded/greedy familys, and are sometimes overturned. That does still not give us all the rights, and especially not all the benefits. Insurance and taxes are two major areas that being married can give you a large advantage that no gay couple will get. But I could find a willing woman and go t oLas Vegas, get married, and have all those benefits with her immediately. I admire Canada, they seem to be on that track to equality much faster than the US.

This is a good debate, along the lines of a judge/clerk refusing to marry a gay couple if same-sex marriage was legalized, wasn’t there a town clerk somewhere in Vermont who refused to do what was required of her under Vermonts domestic partner law? I can’t find a cite, but I remember the story.