Proponents of religious liberty have expressed mixed opinions on the Wyoming Supreme Court’s censure of a judge for saying her religious beliefs would prevent her from performing same-sex weddings.
Judge Ruth Neely’s counsel from Alliance Defending Freedom (ADF) cited the court’s decision not to remove her from the bench as a recognition “that her honorable beliefs about marriage do not disqualify her from serving her community as a judge.” But Martha Lawley, a Wyoming attorney and former officer of the Southern Baptist Convention’s (SBC) Executive Committee, told Baptist Press (BP) the ruling apparently “strips government officials of any religious liberty protections.”
Wyoming Southern Baptist Convention executive director Lynn Nikkel said the ruling “gives reason for concern for the overall cause of religious liberty” in the state.
At issue were statements Neely – a municipal court judge and part-time circuit court magistrate – made to a reporter in 2014. Asked whether she was “excited” to perform same-sex marriages, Neely replied, “We have at least one magistrate who will do same-sex marriages, but I will not be able to,” according to the Wyoming Supreme Court’s March 7 ruling. Neely performs marriages as a magistrate but is not authorized to do so as a municipal court judge.
Some 20 minutes after her initial conversation with the reporter, Neely, a Christian, called him back and asked if she could be quoted merely as saying, “When law and religion conflict, choices have to be made. I have not yet been asked to perform a same-sex marriage.” The Pinedale (Wyo.) Roundup printed both of her statements.
By a 3-2 majority, Wyoming’s high court ruled Neely’s statements violated state rules mandating “impartiality and fairness” among judges and forbidding “bias, prejudice and harassment.” The 32-page majority opinion repeated at least eight times that Neely was being disciplined for her judicial conduct and not her religious beliefs.
Neely “shall either perform no marriage ceremonies or she shall perform marriage ceremonies regardless of the couple’s sexual orientation,” Justice Kate Fox wrote for the majority.
Neely “is not subject to discipline merely because she has expressed her religious beliefs,” Fox wrote. “She has gone one or two critical steps farther than that to say that she will not impartially perform her judicial functions with respect to parties the United States Supreme Court has held have a constitutional right to be treated equally.”
A dissenting opinion authored by Justice Keith Kautz argued the case was, in fact, about Neely’s religious beliefs.
She “did not deny marriage to anyone, nor did she say she would deny marriage to anyone. Rather, she said that because of her religious beliefs, she would not perform same-sex marriages herself, but would assist couples in finding a judge who would,” Kautz wrote.
The U.S. Supreme Court “did not establish any law about who must perform” same-sex marriages, “but only said they must be available on the same terms as accorded to other couples,” Kautz wrote, a right he said Neely upheld.
The state Supreme Court concluded Neely should receive “public censure” for her conduct.
ADF senior counsel Jim Campbell seemed to suggest the decision to leave Neely on the bench was a victory for religious liberty.
“The court rejected the Wyoming Commission on Judicial Conduct and Ethics’ recommendation that Judge Neely be removed from office for expressing her belief that marriage is the union of one man and one woman,” Campbell said in a statement. “The court also stated that removing her would have ‘uncecessarily circumscribe[d] protected expression’ and thus violated the Constitution. Judge Neely looks forward to serving her community for many years to come.”
Still, Lawley said the ruling has negative ramifications for religious liberty.
“Most troubling to me is that the ruling is based on comments made by Judge Neely, not an actual refusal to conduct a same-sex wedding,” said Lawley, a member of the SBC Executive Committee from 2004-12. “The reason this is significant is [that] when ruling on a hypothetical situation, there are no facts to consider as to whether someone else was available to perform the ceremony who had no moral objection and whether Neely’s religious rights could be protected without undue hardship.
“The ruling doesn’t even attempt to balance the different interests at play and thus, in my opinion, creates a religious test for government officials. We should always look to accommodate religious beliefs if at all possible. The failure of this ruling to do so is cause for concern,” Lawley said in written comments.
Nikkel told BP the ruling seems to subject judges to “a religious objection test” and leave “the door … open for the same test to be applied to other governmental position duties.”
“The non-removal of Neely from her judgeship – while encouraging – is far overshadowed by the court’s decision that her religious convictions are not allowed to determine her decisions concerning performances of gay marriages,” Nikkel said in written comments.
The ruling against Neely seems to coincide with “a growing number of legislators, and obviously judges, that have a much more liberal view” on social issues than do average Wyoming residents, Nikkel said. While “the majority of Wyoming voters traditionally vote very conservatively,” an “increase of liberal legislators and court rulings” may stem from “inattention” to social issues “by voters on local elections.”
Though Wyoming Gov. Matt Mead signed two pro-life bills into law March 9 – an ultrasound bill and a ban on distributing tissue from aborted babies for experimentation – Nikkel said there is “substantial support in the legislature, and now the courts,” for “things like gay marriage, along with the lottery, legalization of marijuana and other social issues that once would never have seen the light of day.”
(EDITOR’S NOTE – David Roach is chief national correspondent for Baptist Press, the Southern Baptist Convention’s news service.)