Wednesday, August 12, 2015

The Heck You Say? When "May" Becomes "Must"

I read this morning that an Ohio judge that declined to perform same-sex marriages because he considered them morally repugnant has now bent the knee to the institution and will discontinue his stand on the subject.

Maybe you recall this story from the aftermath of the Supreme Court's decision Obergefell v. Hodges decision?

Judge Allen McConnell, a municipal judge in Toledo, Ohio, declined to perform a same sex marriage. According to the Toledo Blade version of this story, Judge McConnell sent word by his bailiff that "he doesn't perform this kind of marriage." Another judge performed the ceremony before the couple left the courthouse.

In the aftermath of Judge McConnell's refusal, the Ohio Supreme Court referred questions about whether Ohio judges can decline to perform same sex marriages to a special panel for evaluation.

The Board of Professional Conduct of the Ohio Supreme Court issued its decision on Friday, August 7. Today's news carried word that Judge McConnell, having reviewed the Board's opinion, would comply with its conclusion that he was obliged to perform same-sex marriages. The panel opinion is available for you to read online here.

Having read the opinion, I admit a certain perplexity and also that I have taken offense at the decision. The panel states that it "received inquiries from judges and a judicial association on behalf of its members seeking guidance concerning the obligation of a judge to perform same-sex civil marriages." In particular, apparently, the Board was asked two questions:
1) whether a judge who is authorized to perform marriages may refuse to marry same-sex couples based on personal, moral, or religious beliefs, but continue to marry opposite-sex couples; 
2) whether a judge may decline to perform all marriages to avoid marrying same-sex couples.

The first question raises an interesting question of English usage. The second question raises a regrettable question of tyrannical inclinations.

As it turns out, judges in Ohio are not required by law to perform any marriages at all. Rather, as the law is written, they have the authority to perform marriages. Notice this statutory language:
An ordained or licensed minister of any religious society or congregation within this state who is licensed to solemnize marriages, a judge of a county court in accordance with section 1907.18 of the Revised Code, a judge of a municipal court in accordance with section 1901.14 of the Revised Code, a probate judge in accordance with section 2101.27 of the Revised Code, the mayor of a municipal corporation in any county in which such municipal corporation wholly or partly lies, the superintendent of the state school for the deaf, or any religious society in conformity with the rules of its church, may join together as husband and wife any persons who are not prohibited by law from being joined in marriage.
Now, unless you are Humpty Dumpty, words have meanings, and the meanings of words are significant.

The marriage solemnization statute identifies those classes of persons that may "join together as husband and wife any persons who are not prohibited by law from being joined in marriage." That classification includes
  1. ordained or licensed ministers
  2. county court judges
  3. municipal court judges
  4. probate court judges
  5. mayors
  6. the superintendent of the state school for the deaf, or
  7. any religious society according to its own rules.
Each of the foregoing persons or groups "may" solemnize marriages. Note, the statute does not say, "must" solemnize marriages. Nor does the statute say, "shall" solemnize marriages.

When legislatures write laws, they are assumed to choose their words with care, and to give to words their commonly accepted meanings. Among the sometimes confusing questions that arise in reading statutes are a set of questions related to the performance of duties and the scope of powers.

Here's an example out of the Constitution. 

Article I grants to Congress the sole power "to declare war." Nothing in the Constitution grants the President or the Courts the power to order Congress to declare war. It is, entirely, a discretionary power in the hands of the Congress.  Discretionary powers may be exercised or they may not be exercised. The essence of discretion is that the person or body granted that discretion decides whether to exercise the power.

So, suppose Franklin Delano Roosevelt had come to the Congress on December 8, 1941, and asked Congress to declare that a state of war existed between the USA and Japan as a consequence of the unprovoked attack on Pearl Harbor. Suppose further that the Congress tabled the proposal and did not bring it to a vote. Congress could have done so, although doing so would certainly have proved politically fatal.

It is, then, of some moment and import that the Ohio statute does not say, "County judges shall perform marriage ceremonies anywhere in the State." Rather, it says that have "jurisdiction and authority" to do so. That language does not impose a duty or obligation. That language recognizes an authority or power to perform marriages.

In a cascade of verbal and ethical gymnastics, however, the Board of Professional Conduct has accomplished what only Humpty Dumpty before it could accomplish: it took that tiny word "may," by the neck if you will, and squeezed and choked and hammered it until it cried, "UNCLE," and agreed to mean "must" instead. What linguistic alchemists must sit on this Board!

The Board Stunningly Transformed a Power that Judges May Permissively Exercise Into A Duty They Must Slavishly Accomplish.

So how did this come to pass? How was it done that what was a discretionary power of judges became an unavoidable duty of judges? To get to its conclusion, the Board took a series of steps. 

One step, in particular, strikes the mind as substantially suspect. That is the moment when the Board acknowledged that it did not know -- and did not have the competence to decide -- whether judges are mandated or authorized to perform civil marriages. Despite its ignorance of the answer to that question, admitted ignorance, and its incompetence to answer that question, the Board proceeded throughout the balance of the opinion to treat the performance of marriages as a duty. Worse yet, the Board reasoned its way to the conclusion that performing marriages, including same sex marriages, was a duty that could not, without violating the Code of Judicial Conduct, be avoided.

Next, the Board briefly touched on the Supreme Court decision on same sex marriage, Obergefell v. Hodges, and concluded, Obergefell is "the law of the land and applies equally across all jurisdictions.

The Board then moved to a pivotal point in its analysis.

Remember, the statute does not order judges to perform marriages. Rather, the statute states that a judge may perform them. As such, it is difficult to understand how performing marriages becomes a duty, that is a mandatory behavior. The Board, however, needed for the performance of marriages to be a duty. As a duty, the judge's conduct could then be assessed against the Code of Judicial Conduct.

With no substantive development, the Board decided that, because a judge uses authority granted to him by the State when he performs a civil marriage, the judge is performing a judicial duty. In performing a judicial duty, a judge must comply with the Code of Judicial Conduct, and the balance of the decision from the Board is, then, the unsurprising application a carefully selected set of principles drawn from the Code of Judicial Conduct

The Board notes that judges take an oath pursuant to statute. The Board asserts that personal, moral, and religious beliefs should never factor into the performance of a religious duty, relying on a Mississippi case.  When a judge takes the oath of office, the Board noted, quoting a Mississippi court case, “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….”

In its next step, the Board concludes that a refusal to perform same sex marriage based on personal, religious, or moral beliefs "ignores the holding in Obergefell and thus, directly contravenes the oath of office." Indeed, the Board concludes, the refusal to perform same sex marriages while continuing to perform opposite sex couple marriages "is contrary to the holding in Obergefell and thus not in accord with the judge's obligation to comply with the law."

Still proceeding from its conclusion that performing marriages is a judicial duty, the Board next worries that "public confidence in the independence of the judiciary is undermined" when a judges allows his or her beliefs regarding the social or religious acceptance or validity of same-sex marriage to interfere in the performance "a judicial function or duty." The Board also charges that, by determining that he will marry only opposite-sex couples "undermines the holding in Obergefell and runs counter to the requirement ... to avoid impropriety and the appearance of impropriety."

The Board stated, next, that refusing to perform same sex marriage would constitute a sign of personal bias. On this point, the Board made reference to a case in which a judge denied post-conviction relief to a pregnant inmate so that the inmate would not have the liberty to seek out an abortion (to which the judge bore a moral objection). The Court in that case concluded that doing so constituted a bias that conflict with a judge's duty of impartiality and fairness. Here, the Board suggests that refusals to perform same sex marriage would, also, constitute bias that conflicted with the duties of impartiality and fairness. The Board also stated that, by disapproving of Obergefell, a judge would demonstrate a lack of fairness and impartiality.

The Board next noted the judges are required to "perform the duties of judicial office ... without bias or prejudice" and that a judge should avoid conduct that "may reasonably be perceived as prejudiced or biased." The Board then noted that by manifesting "bias or prejudice in any proceeding, he or she may bring disrepute to their office and the judiciary as a whole." The Board further concluded that doing so may be viewed as possessing a bias against a class or group based on sexual orientation. "Exhibiting bias or prejudice in the performance of judicial duties is antithetical to a core tenet of judicial office and erodes the public’s confidence in the independence, integrity, and impartiality of the judiciary"

The Board noted that a judge must avoid being swayed by public clamor or fear of criticism, and that doing so was essential to independence. To the extent judges permit such external factors to influence the execution of judicial functions, they will erode public confidence in the judiciary by giving place to such external influence.

Finally, the Board concluded that a decision not to perform some or all marriages after Obergefell may reflect adversely on, or impact, other functions and duties in his judicial office. The Board suggested, for example, that a judge that declined to perform any marriages after Obergefell might be required to disqualify herself from the decision of a domestic violence case arising in the context of a same-sex couple.

Lincoln's Cooper Union Address Offers Insight Into The New Ideological Tyranny

The year is 1860. The undoing of the Missouri Compromise by the Supreme Court decision in Dred Scott v. Sandford was much debated. Lincoln, in a short autobiography, attributed to that decision his re-animated interest in politics. Of course, by now, Lincoln had refined his oratory craft through his legal practice and through the debates with Stephen Douglas, his eventual Northern Democratic Party opponent in the election of 1860.

But earlier that year, in answer to an invitation from Henry Ward Beecher, Lincoln traveled to New York City to give a "political address." While Beecher had planned Lincoln's speech to be part of a series hosted by his church, when Lincoln stated that the only way he could accept the invitation was if he would be permitted to give one of his political addresses, the sponsorship of the event was transferred to the Young Men's Republican Union, and the event took place at the Cooper Union.

Lincoln's principal object in his address was to demonstrate that Dred Scott was wrongly decided by the Supreme Court, and that it flew in the face of the philosophy and ideas of those who framed the Constitution. Remember, Dred Scott not only held that blacks could never be citizens of the United States. In the case the Court also ruled that the Constitution withheld from Congress any power to regulate, restrict, or prohibit slavery in the federally administered territories.

In the agitations that were ongoing in the Nation, any move to restrict slavery, anywhere in the Nation, was bound to be interpreted as hostility to slavery in the States where it was lawfully ongoing. As Lincoln spelled out the historical ground for his view that Dred Scott was wrongly decided, he forcefully confronted the persistent complaining that he observed by slavery supporters that the Northerners would not leave them to their slavery and ways, but would poke, prod, and provoke until their institution was undone. In moving to his conclusion, he animated the essential dispute of freedom vs slavery, in terms of moral right and wrong:
The question recurs, what will satisfy them? Simply this: We must not only let them alone, but we must somehow, convince them that we do let them alone. This, we know by experience, is no easy task. We have been so trying to convince them from the very beginning of our organization, but with no success. In all our platforms and speeches we have constantly protested our purpose to let them alone; but this has had no tendency to convince them. Alike unavailing to convince them, is the fact that they have never detected a man of us in any attempt to disturb them. 
These natural, and apparently adequate means all failing, what will convince them? This, and this only: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly - done in acts as well as in words. Silence will not be tolerated - we must place ourselves avowedly with them. Senator Douglas' new sedition law must be enacted and enforced, suppressing all declarations that slavery is wrong, whether made in politics, in presses, in pulpits, or in private. We must arrest and return their fugitive slaves with greedy pleasure. We must pull down our Free State constitutions. The whole atmosphere must be disinfected from all taint of opposition to slavery, before they will cease to believe that all their troubles proceed from us. 
In a like vein, the decision by the Board of Professional Conduct evinces a like conviction to those of the slavers that, unless and until, every voice of objection, of dissent, whether framed as a religious and faith informed opposition, such as were Henry Ward Beecher's arguments against slavery, or phrased as constitutional principles, as were Lincoln's arguments against disunion, is not just silenced, but transformed into a voice of approval for same sex marriage, the work will be viewed as incomplete. Here, Judge McConnell must now bend his knee to the marital plow in service of elevation of same sex marriage.