Updated Wednesday, January 16, 2013 at 11:01 PM
Washington’s amended marriage law exempts pastors, rabbis, Imams and other clergy from having to perform same-sex weddings if they aren’t so moved.
But for judges, justices and some court commissioners, who are also authorized to marry people in this state, the law is much less clear.
Weeks after same-sex marriage became legal in Washington, questions are being raised over what obligations — if any — judges have to marry gay couples when doing so assails their own religious or other personal beliefs.
In the days before the state’s same-sex marriage law took effect last month, Thurston County Superior Court Judge Gary Tabor told fellow judges and his staff that he was not comfortable marrying gay couples.
Along with the court’s seven other judges, he is on a weekly rotation to perform marriages outside court hours.
He said his remarks to fellow judges were not meant as a political or legal stance but rather to ensure that there would be a judge available to cover any weddings assigned to him that he preferred not to officiate.
“What I’ve said is that I have philosophical and religious feelings that I do not wish to perform such marriages,” he said in a recent telephone conversation.
First elected to the Thurston County bench in 1996, Tabor is a graduate of Oklahoma Christian College, according to an online-court biography.
“My understanding is that a judge is not required to perform any marriage; he may choose to do so to accommodate the public,” he said. “As far as I know the other judges here have indicated they would perform such marriage without question. People will be accommodated.”
While Referendum 74 amended the state’s marriage laws to include gay couples among those who may legally wed, it did not change who can perform these weddings.
That’s limited to active or retired justices and judges and some court commissioners, as well as licensed or ordained religious people, which includes regular folks who, for a fee, can receive ordination from websites online.
Elected officials, unless ordained, may not perform marriages in this state.
In addition to state laws against discrimination, judges are subject to an even higher bar — the code of judicial conduct — which requires them to discharge their duties without bias or prejudice.
Those same canons bar judges from joining organizations with invidious and discriminatory practices, such as the Ku Klux Klan, or engaging in outside activities that cast doubt on their ability to be impartial.
While the state’s marriage law authorizes who can perform marriages, it does not require anyone to. Performing weddings is not a judicial duty but a discretionary function judges conduct on their own time and are compensated for privately.
“Judges may perform them or not,” said Thurston County Court administrator Marti Maxwell.
“Some elect to do them, some elect to do none,” she said. “There are some who will only do them during the week or during their lunch hours or after hours or for family and friends and some who will travel to the ends of the earth to do them.”
But Anne Levinson, a retired Seattle judge who was also a key adviser in the campaign to legalize same-sex marriage, said that “if a judge says he or she is available to perform weddings, then he can’t decline some of them based on any reason that has the appearance of bias or prejudice.”
That appearance of bias, even if it involves a judge’s activities off the bench, could create discomfort among those who may then have to appear before that same judge when he’s on the bench, she says.
Reiko Callner, executive director of the state Commission on Judicial Conduct, called the matter an open question — one that no court has yet ruled on. It’s a case of competing interests, she said: a judge’s personal religious beliefs against the ethical code for judges.
“One can make an all-or-nothing argument that if they perform any weddings at all, then they cannot discriminate” against any particular group, Callner said.
The practical reality is that most couples — gay or straight — wouldn’t want to be married by a judge who doesn’t support their union.
Yet with the religious exemption in place for religious officiants, a judge might be the closest option available for some, particularly people living in remote parts of the state.
On the third day gay couples could marry in Maine earlier this month, a couple at the Litchfield Town Office were turned away because the two people in the office authorized to perform such weddings were “both shy about things like this,” a deputy clerk told the two men.
Tabor, the Thurston County judge, said his position on this issue is no indication of how he would rule on issues involving gay people in general or gay couples in particular.
“I take seriously the position of judges making decisions not based on personal preference,” Tabor said. “I don’t believe anyone has ever complained that I’ve treated them inappropriately.”
Whether anyone has made an official complaint with the Commission on Judicial Conduct is unknown. Callner said such information would be kept in the strictest of confidence unless an investigation finds against the judge.
In the absence of any court ruling on the matter, a judge seeking clarity could pose a question to the state’s ethics-advisory commission, Callner noted.
That’s precisely what an unnamed judge in New York did last year after that state’s same-sex marriage law went into effect.
Citing religious beliefs, the judge sought the advice of the New York state advisory committee on judicial ethics on several points: whether judges could ethically refuse to conduct same-sex marriages if they also performed straight weddings; whether they could refer same-sex couples to other judges willing to marry them; and whether they could conduct weddings for only friends and relatives.
For the most part, the committee punted in its response, concluding that unresolved questions over whether a judge can refuse to officiate a same-sex wedding “must be raised and addressed by persons with standing in the appropriate legal venue.”
Some legal experts here in Washington say much the same.
“What you have here is potential controversy — without an actual case,” Callner said. “There’re lots of arguments and ideas you can raise on either side of the case. It’s unsettled until its settled.”
Lornet Turnbull: 206-464-2420 or firstname.lastname@example.org. On Twitter @turnbullL.