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State Board: Ohio Judges Cannot Refuse To Marry Same-Sex Couples

A Toledo judge who had refused to marry two women now says he would conduct such a marriage.

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Ohio judges cannot refuse to marry same-sex couples, the state's professional conduct board ruled in an advisory opinion distributed on Monday.

The advisory opinion of Ohio's Board of Professional Conduct is nonbinding, the board's director, Richard Dove, told BuzzFeed News on Tuesday — but it would be instructive should an actual ethics complaint be filed against a specific judge for not performing marriages.

The opinion concludes that "[a] judge who performs civil marriages may not refuse to perform same-sex marriages while continuing to perform opposite-sex marriages, based upon his or her personal, moral, and religious beliefs, acts contrary to the judicial oath of office" and judicial and professional conduct rules.

The advisory opinion, approved by the board on Aug. 7, was a response to two inquiries presented to the board in the wake of the Supreme Court decision in Obergefell v. Hodges, a case out of Ohio. Toledo Municipal Judge Allen McConnell had refused to perform same-sex couples' marriages in the wake of the Obergefell decision and was among those seeking the opinion from the board.

The advisory opinion also asserts that judges who — in the wake of the U.S. Supreme Court's ruling this June that struck down bans on same-sex couples' marriages — now decline to perform all marriages — opposite-sex couples and same-sex couples — "may be interpreted as manifesting an improper bias or prejudice toward a particular class." This is so, the board states, because it could be seen as being done "in order to avoid marrying same-sex couples based on [the judge's] personal, moral, or religious beliefs."

Going further, the board also states that judges who refuse to marry same-sex couples may "reasonably be perceived" to be prejudiced against gay people and, as such, have to recuse themselves from any cases involving sexual orientation-related issues.

"[A] judge's decision to decline to perform some or all marriage ceremonies, when grounded on the judge's personal beliefs, may reflect adversely on perceptions regarding the judge's performance of other judicial functions and duties," the board wrote.

The opinion notes that other similar boards in other states — including Arizona, Louisiana, Nebraska, and Pennsylvania — have reached similar conclusions.

McConnell told a Toledo-area TV station that, in light of the advisory opinion, he now will perform a wedding for a same-sex couple if requested to do so.

(h/t Gabriel Malor)

Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.

Contact Chris Geidner at chris.geidner@buzzfeed.com.

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