An Inquiry Concerning the Honorable Ruth Neely, Municipal Court Judge and Circuit Court Magistrate, Ninth Judicial District, Pinedale, Sublette County, Wyoming Judge Ruth Neely v. Wyoming Commission On Judicial Conduct and Ethics.

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 25OCTOBER TERM, A.D. 2016
March 7, 2017
AN INQUIRY CONCERNING THE
HONORABLE RUTH NEELY,
MUNICIPAL COURT JUDGE AND
CIRCUIT COURT MAGISTRATE,
NINTH JUDICIAL DISTRICT,
PINEDALE, SUBLETTE COUNTY,
WYOMING
JUDGE RUTH NEELY
J-16-0001
(Petitioner),
v.
WYOMING COMMISSION ON
JUDICIAL CONDUCT AND ETHICS
(Respondent).
Original Proceeding
Petition on Professional Regulation
Wyoming Commission on Judicial Conduct and Ethics
Representing Petitioner:
Herbert K. Doby, Torrington, Wyoming; James A. Campbell, Kenneth J.
Connelly, and Douglas G. Wardlow of Alliance Defending Freedom, Scottsdale,
Arizona. Argument by Mr. Campbell.
Representing Respondent:
Patrick Dixon and Britney F. Turner of Dixon & Dixon, LLP, Casper, Wyoming;
Timothy K. Newcomb, Laramie, Wyoming. Argument by Mr. Dixon.
Representing Amici Curiae Mayor and Town Council Members of the Town of
Pinedale and Sutherland Institute Center for Family & Society:
William H. Twichell, Pinedale, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
FOX, Justice, delivers the opinion of the Court; KAUTZ, Justice, files a dissenting
opinion, in which DAVIS, Justice, joins.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.
[¶1] Judge Ruth Neely objects to the Wyoming Commission on Judicial Conduct and
Ethics’ (Commission) recommendation that she be removed from her positions as
municipal court judge and part-time circuit court magistrate because of her refusal to
perform same-sex marriages in her judicial capacity as a part-time circuit court
magistrate. We conclude, as have all the state judicial ethics commissions that have
considered this question, that a judge who will perform marriages only for opposite-sex
couples violates the Code of Judicial Conduct, and we hold that Judge Neely violated
Rules 1.2, 2.2, and 2.3 of the Wyoming Code of Judicial Conduct. However, we do not
accept the Commission’s recommendation for removal, and instead order public censure,
with specific conditions.
ISSUES
[¶2] While the parties state numerous and divergent issues, we consider the issues in
this case to be:
1. Does the United States Constitution permit this Court to discipline Judge
Neely for announcing that her religious beliefs prevent her from officiating same-sex
marriages?
2. Does the Wyoming Constitution permit this Court to discipline Judge Neely
for announcing that her religious beliefs prevent her from officiating same-sex
marriages?
3. Are the provisions of the Wyoming Code of Judicial Conduct alleged to have
been violated by Judge Neely void for vagueness?
4. Did Judge Neely violate the Wyoming Code of Judicial Conduct?
[¶3] This case is not about same-sex marriage or the reasonableness of religious
beliefs. We recognize that “[m]any who deem same-sex marriage to be wrong reach that
conclusion based on decent and honorable religious or philosophical premises, and
neither they nor their beliefs are disparaged here.” Obergefell v. Hodges, 135 S.Ct. 2584,
2602, 192 L.Ed.2d 609 (2015). This case is also not about imposing a religious test on
judges. Rather, it is about maintaining the public’s faith in an independent and impartial
judiciary that conducts its judicial functions according to the rule of law, independent of
outside influences, including religion, and without regard to whether a law is popular or
unpopular.
1
FACTS
[¶4] Judge Neely was appointed as a municipal court judge for the Town of Pinedale,
Wyoming, in 1994, and has served continuously in that capacity ever since.1 As a
Pinedale municipal court judge, Judge Neely hears all cases arising from the town’s
ordinances, such as traffic and parking violations, animal control, public intoxication,
underage drinking, breach of peace, nuisances, and similar matters. Municipal court
judges are not authorized to perform marriages. Wyo. Stat. Ann. § 20-1-106(a)
(LexisNexis 2015). Municipal court judges are appointed by the governing bodies of the
towns where they sit. Wyo. Stat. Ann. § 15-4-202(d) (LexisNexis 2015). It is undisputed
that the Wyoming Code of Judicial Conduct applies to them, and that they are subject to
the disciplinary authority of the Commission on Judicial Conduct and Ethics and this
Court. Wyoming Code of Judicial Conduct, Application I.(B); see also Wyo. Const. art.
5, § 6. The evidence is uncontroverted that Judge Neely is highly respected as a
municipal court judge in her community, including by at least one member of the gay
community.
[¶5] Since approximately 2001, Judge Neely has also served as a part-time circuit court
magistrate; she was most recently appointed by circuit court Judge Haws to assist him.
Part-time magistrates are in a unique position in that they perform judicial functions only
as needed. They are not on the state payroll, but instead are compensated for particular
services by voucher. Wyo. Stat. Ann. § 5-9-213 (LexisNexis 2015). One of her powers
in that capacity is to perform marriage ceremonies, Wyo. Stat. Ann. § 5-9-212(a)(iii)
(LexisNexis 2015), and in fact performing marriages was her primary function as a part-
time circuit court magistrate. Judge Neely was compensated for marriages by
the marrying couple and not by the state. Under Wyoming law, marriage is “a civil
contract . . . .” Wyo. Stat. Ann. § 20-1-101 (LexisNexis 2015). Marriage ceremonies
have minimal requirements:
In the solemnization of marriage no particular form is
required, except that the parties shall solemnly declare in the
presence of the person performing the ceremony and at least
two (2) attending witnesses that they take each other as
husband and wife.
Wyo. Stat. Ann. § 20-1-106(b) (LexisNexis 2015).
[¶6] Judge Neely has performed over 100 weddings. Part-time magistrates can and do
decline to perform marriages for various reasons. Stephen Smith, who also serves as a
part-time circuit court magistrate, testified that he only performs marriages for people he
1
Judge Neely is not a lawyer and has no formal legal training.
2
knows. Judge Haws testified that he would turn down a request to perform a marriage if
his schedule would not permit it, and that it would be acceptable for magistrates to turn
down such a request if they were going to a football game, getting their hair done, or
were sick.
[¶7] When she was appointed as part-time circuit court magistrate, Judge Neely took
the oath required by Wyoming law.
“I do solemnly swear (or affirm) that I will support, obey and
defend the constitution of the United States, and the
constitution of the state of Wyoming; that I have not
knowingly violated any law related to my election or
appointment, or caused it to be done by others; and that I will
discharge the duties of my office with fidelity.”
Wyo. Const. art. 6, § 20.2
[¶8] Judge Neely is a devout Christian and a member of the Lutheran Church, Missouri
Synod. It is undisputed that she holds the sincere belief that marriage is the union of one
man and one woman. Shortly after the United States District Court for the District of
Wyoming issued its order enjoining the state from enforcing or applying any “state law,
policy, or practice, as a basis to deny marriage to same-sex couples,” Guzzo v. Mead, No.
14-CV-200-SWS, 2014 WL 5317797, at *9 (D. Wyo. Oct. 17, 2014),3 Judge Neely met
with Judge Haws “to explain to him that I would not be able to officiate same-sex
marriages due to my sincerely held religious beliefs about what marriage is.” Judge
Haws advised her to “keep your head down and your mouth shut,” until they received
further guidance.
[¶9] On December 5, 2014, Pinedale Roundup reporter Ned Donovan called Judge
Neely on her cell phone. She returned the call, Mr. Donovan answered “Pinedale
Roundup,” and he then asked her if she was “excited” to be able to perform same-sex
marriages. In the article that followed the interview, two quotes were attributed to Judge
Neely, which she later testified were accurate:
“I will not be able to do them. . . . We have at least
one magistrate who will do same-sex marriages, but I will not
be able to.”
2
This oath is required of circuit court magistrates by Wyo. Stat. Ann. § 5-9-203 (LexisNexis 2015).
3
That decision, essentially finding that same-sex marriage was legal in Wyoming, was established as the
law of the land by the United States Supreme Court in Obergefell v. Hodges, 135 S.Ct. 2584, 192 L.Ed.2d
609 (2015).
3
“When law and religion conflict, choices have to be
made. I have not yet been asked to perform a same-sex
marriage.”
[¶10] Mr. Donovan’s article appeared in the December 9, 2014 edition of the Pinedale
Roundup. The Sublette Examiner published the article in its online edition on December
11, 2014. The matter came to the Commission’s attention, and on December 22, 2014,
the Commission’s Executive Director forwarded the articles to the Commission’s
Investigatory Panel for their review. On January 6, 2015, the Investigatory Panel decided
to commence an investigation and sent a letter of inquiry to Judge Haws and Judge
Neely.
[¶11] Also on January 6, without knowledge of the Commission’s actions, Judge Neely
sent a letter to the Judicial Ethics Advisory Committee to seek its guidance. She asked:
“Can a magistrate recuse himself/herself from officiating at a same sex wedding due to
religious conviction; and if so, without fear of civil rights repercussions?” She explained:
Without getting in too deeply here, homosexuality is a
named sin in the Bible, as are drunkenness, thievery, lying,
and the like. I can no more officiate at a same sex wedding
than I can buy beer for the alcoholic or aid in another
person’s deceit. I cannot knowingly be complicit in another’s
sin. Does that mean I cannot be impartial on the bench when
that homosexual or habitual liar or thief comes before me
with a speeding ticket? Or the alcoholic appears before me
for yet another charge of public intoxication? No. Firmly,
no. I have been the municipal court judge for the Town of
Pinedale for over 20 years; and there has not been one claim
of bias or prejudice made by anyone who has come before
me. Not the homosexual, not the alcoholic, not the liar, not
the thief. Not one.[4]
The Commission provided no answer to Judge Neely’s question, explaining that it could
only “provide guidance for those judges seeking resolution to current or unresolved
ethical dilemmas, rather than to confirm a judge’s decision or provide a legal opinion.”
On January 15, 2015, Judge Haws met with Judge Neely and suspended her from her
position as a part-time circuit court magistrate.
4
This letter to the Judicial Ethics Advisory Committee would normally be a protected communication.
However, this Court’s “determination must be made upon the evidence that was presented to the Board at
the hearing.” Bd. of Prof’l Responsibility v. Custis, 2015 WY 59, ¶ 19, 348 P.3d 823, 829 (Wyo. 2015)
(citations omitted). As no party raised this issue either below or on appeal, and in fact both parties
referred to the letter, it remains part of the record, particularly when Judge Neely waived confidentiality
when she filed her motion to remove confidentiality. See infra ¶ 14.
4
[¶12] In her response to the Investigatory Panel’s inquiry, Judge Neely affirmed that
“[m]y conscience, formed by my religious convictions, will not allow me to solemnize
the marriage of two men or two women . . . .” She indicated that she has not been asked
to perform a same-sex marriage, and she admonished the Commission:
[P]lease keep my and others’ First Amendment rights in
mind. I want to continue to officiate at weddings; and I
should not have to fear that lawful exercise of my freedom of
religion as a member of a Lutheran church in Pinedale,
Wyoming would be a violation of the Code.
[¶13] After reviewing the responses from Judge Neely and Judge Haws, the
Investigatory Panel met again and determined there was probable cause to find a code
violation and referred the matter to the Commission’s Adjudicatory Panel. The
Commission and Judge Neely retained counsel, and the parties engaged in discovery and
filed cross-motions for summary judgment. The Adjudicatory Panel held a hearing on
those motions and issued its Order Granting Commission’s Motion for Partial
Summary Judgment and Denying Judge Neely’s Motion for Summary Judgment on
December 31, 2015. The full Commission adopted the Adjudicatory Panel’s findings and
recommendations, and recommended that Judge Neely be removed from her positions as
municipal court judge and part-time circuit court magistrate.
[¶14] Judge Neely timely petitioned this Court to reject the Commission’s
recommendation, the parties filed their briefs, and this Court heard the arguments of
counsel. Although normally all proceedings before the Commission are confidential
(Rules Governing the Commission on Judicial Conduct and Ethics, Rule 22), Judge
Neely filed a motion seeking to remove the confidentiality, the motion was not opposed
by the Commission, and it was granted by this Court. Several motions to file Amicus
Curiae briefs were filed, and this Court denied all but the Motion for Leave to File
Proposed Brief of Amici Curiae Mayor and Town Council Members of the Town of
Pinedale and Sutherland Institute Center for Family & Society in Support of the
Honorable Ruth Neely’s Petition Objecting to the Commission’s Recommendation,
which was granted.
DISCUSSION
[¶15] Judge Neely contends that removing5 her from either judicial position “because of
her religious beliefs” would violate her constitutional rights to free speech and free
exercise of religion, under both the United States and the Wyoming constitutions. Judge
5
As we discuss below, see infra ¶ 57, this Court is not bound by the Commission’s recommendation, and
although we have determined that discipline is appropriate, we stop short of removing her from either of
her judicial positions.
5
Neely’s religious beliefs, however, are not the issue. Rather, the issue is Judge Neely’s
conduct as a judge.
I. Does the United States Constitution permit this Court to discipline Judge Neely
for announcing that her religious beliefs prevent her from officiating same-sex
marriages?
[¶16] The free exercise clause of the First Amendment provides that “Congress shall
make no law respecting an establishment of religion, or prohibiting the free exercise
thereof . . . .” U.S. Const. amend. I. This provision is made applicable to the states by
the Fourteenth Amendment. Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60
S.Ct. 900, 903, 84 L.Ed. 1213 (1940). “The free exercise of religion means, first and
foremost, the right to believe and profess whatever religious doctrine one desires.”
Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872, 877, 110
S.Ct. 1595, 1599, 108 L.Ed.2d 876 (1990).6 Yet the United States Supreme Court has
recognized an important distinction between the “freedom to believe and freedom to act.
The first is absolute but, in the nature of things, the second cannot be.” Cantwell, 310
U.S. at 303-04, 60 S.Ct. at 903.
[¶17] In Smith, the United States Supreme Court considered the free exercise claims of
two parties whose employment had been terminated for their use of peyote for religious
purposes, and then were denied unemployment benefits. 494 U.S. at 874, 110 S.Ct. at
1598-99. The Court rejected respondents’ claims that “their religious motivation for
using peyote places them beyond the reach of a criminal law that is not specifically
directed at their religious practices . . . . ,” Id. at 878, 110 S.Ct. at 1599, citing the
principle that a citizen cannot excuse violation of the law because of his religious beliefs.
“‘Laws,’ we said, ‘are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with practices. . . .’” Id. at
879, 110 S.Ct. at 1600 (quoting Reynolds v. United States, 98 U.S. 145, 166-67, 25 L.Ed.
244 (1878)).
Subsequent decisions have consistently held that the
right of free exercise does not relieve an individual of the
obligation to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or
proscribes).’
Smith, 494 U.S. at 879, 110 S.Ct. at 1600 (citations omitted).
6
Although Congress subsequently attempted to overturn Smith by enacting the Religious Freedom
Restoration Act of 1993, 42 U.S.C. § 20000bb, the United States Supreme Court struck down the Act, as
applied to state actions, in City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 2172, 138
L.Ed.2d 624 (1997).
6
[¶18] We adhere to the Smith Court’s rule on the interplay between the right to free
exercise and the obligation to comply with a valid and neutral law, but unlike the Smith
Court, we will apply strict scrutiny to our analysis. The parties agree that we should do
so, and Judge Neely has raised both free exercise of religion and freedom of speech
claims, requiring us to apply the strict scrutiny standard to our decision. See Republican
Party of Minnesota v. White, 536 U.S. 765, 774, 122 S.Ct. 2528, 2534, 153 L.Ed.2d 694(2002) (applying strict scrutiny in First Amendment challenge to rule restricting judicial
campaign speech). Strict scrutiny requires us to determine whether disciplining Judge
Neely for her refusal to conduct same-sex marriages serves a compelling state interest,
and whether the discipline is narrowly tailored to serve that interest. Williams-Yulee v.
Florida Bar, --- U.S. ---, ---, 135 S.Ct. 1656, 1664-65, 191 L.Ed.2d 570 (2015).
[¶19] The judicial code at issue in Williams-Yulee prohibited candidates for judicial
election from “personally solicit[ing] campaign funds, or solicit[ing] attorneys for
publicly stated support . . . .” 135 S.Ct. at 1663 (citation omitted). Williams-Yulee
(Yulee), who ran for a seat on a county court, drafted a campaign letter soliciting
campaign contributions, which she mailed to local voters and posted on her campaign
website. Id. The Florida bar filed a complaint against Yulee for violating the Florida
Code of Judicial Conduct, and the Florida Supreme Court, finding that Canon 7C was
narrowly tailored to serve a compelling state interest, imposed sanctions on Yulee for her
code violation. Id. at 1664.
[¶20] The Williams-Yulee Court agreed that the State of Florida had a “compelling
interest in preserving public confidence in the integrity of the judiciary . . . .” Id. at 1666.
The importance of public confidence in the integrity of judges
stems from the place of the judiciary in the government.
Unlike the executive or the legislature, the judiciary “has no
influence over either the sword or the purse; . . . neither force
nor will but merely judgment.” The Federalist No. 78, p. 465
(C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
The judiciary’s authority therefore depends in large measure
on the public’s willingness to respect and follow its decisions.
As Justice Frankfurter once put it for the Court, “justice must
satisfy the appearance of justice.” Offutt v. United States, 348
U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954).
Id. See also Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889, 129 S.Ct. 2252, 173
L.Ed.2d 1208 (2009) (“Judicial integrity is . . . a state interest of the highest order.”
(citation omitted)). We find that, like the State of Florida, the State of Wyoming has a
compelling government interest in maintaining the integrity of the judiciary, in this case
by enforcing Wyoming Rules of Judicial Conduct 1.2, 2.2, and 2.3.
7
[¶21] Judge Neely contends that Republican Party of Minnesota v. White governs, and
there is no compelling state interest in ensuring her lack of preconception on the issue of
same-sex marriage. 536 U.S. at 777-78, 122 S.Ct. at 2536. In White, the United States
Supreme Court addressed a different rule, restricting judicial campaign activity.7 The
Court there had before it the “announce clause,” which said that a candidate for judicial
office in Minnesota shall not “announce his or her views on disputed legal or political
issues.” Id., 536 U.S. at 770, 122 S.Ct. at 2532. (The “announce clause” is distinguished
from a separate provision which “prohibits judicial candidates from making ‘pledges or
promises of conduct other than the faithful and impartial performance of the duties of the
office.’” (internal citation omitted)).
[¶22] In White, a candidate for judicial office had distributed campaign literature
criticizing “Minnesota Supreme Court decisions on issues such as crime, welfare, and
abortion.” Id. at 768, 122 S.Ct. at 2531. Although a complaint was filed against him, the
disciplinary board with the responsibility to investigate ethical violations dismissed the
complaint, expressing doubt whether the announce clause was constitutionally
enforceable. Id. at 769, 122 S.Ct. at 2531. The candidate, who had nevertheless
withdrawn from the race, filed suit, joined by the Republican Party of Minnesota and
others, seeking a declaration that the announce clause violated the First Amendment. The
board interpreted the announce clause to allow the candidate to criticize decisions of the
state supreme court on such issues as application of the exclusionary rule in criminal
cases, striking down a state law restricting welfare benefits, and financing abortions for
poor women, but not if the candidate also stated he was against stare decisis. Id. at 771-
72, 122 S.Ct. at 2533.
[¶23] The Court found that, although judicial impartiality may be a compelling state
interest, the announce clause was not narrowly tailored to serve that interest. Id. at 774-
76, 122 S.Ct. at 2534-35. The White majority reached this conclusion by first defining
“impartiality” as “the lack of bias for or against either party to the proceeding.
Impartiality in this sense assures equal application of the law.” Id. at 775-76, 122 S.Ct. at7
Most cases dealing with the tension between the First Amendment and restrictions on judicial conduct
arise in the context of judicial election campaigns. See Winter v. Wolnitzek, 834 F.3d 681, 2016 WL
4446081 (6th Cir. Aug. 24, 2016); In re Judicial Campaign Complaint Against O’Toole, 24 N.E.3d 1114(Ohio 2014). Judges in Wyoming are not elected, but rather are selected in a modified system of judicial
selection known as “Merit Selection” or the “Missouri Plan.” “[T]he very practice of electing judges
undermines” the interest in an impartial judiciary. Judges subject to regular elections “are likely to feel
that they have at least some personal stake in the outcome of every publicized case.” And, because
campaigns cost money, judges must engage in fundraising, which “may leave judges feeling indebted to
certain parties or interest groups.” White, 536 U.S. at 788-90, 122 S.Ct. at 2542 (O’Connor, J.,
concurring). “Legislative and executive officials act on behalf of the voters who placed them in office;
judge[s] represent[t] the Law.” Id. at 803, 122 S.Ct. at 2550 (Ginsburg, J., dissenting) (internal quotation
marks and citation omitted).
8
2535 (emphasis in original). The Court then reasoned that the announce clause failed to
address the objective of judicial impartiality because it “does not restrict speech for or
against particular parties, but rather speech for or against particular issues.” Id. at 776,
122 S.Ct. at 2535 (emphasis in original).
[¶24] There are two critical differences between White and Judge Neely’s case. First,
rather than simply express her views on a matter of law or religion, she has stated her
position that she will not perform her judicial functions with impartiality. She does not
merely believe that homosexuality is a sin; as a judge, she will manifest that belief by not
treating homosexual persons the same way she treats heterosexual persons. Thus, unlike
the candidate in White, Judge Neely’s conduct is at odds with a “lack of bias for or
against either party . . . .” Id. at 775, 122 S.Ct. at 2535. She refuses “equal application of
the law” to homosexuals. Id. at 776, 122 S.Ct. at 2535. Second, the rules she has
violated are far more well established than the announce clause at issue in White. Rule
1.2, Promoting Confidence in the Judiciary; Rule 2.2, Impartiality and Fairness; and Rule
2.3, Bias, Prejudice, and Harassment, all address different facets of the fundamental
requirement that judges maintain public confidence in the judiciary by impartially
applying the law. See infra ¶¶ 59-70. The Wyoming Code of Judicial Conduct,
including the three rules at issue here, is based on the American Bar Association Model
Code of Judicial Conduct, as revised in 2007. Arthur Garwin et al., Annotated Model
Code of Judicial Conduct, at 22, 30, 92, 111 (2d ed. 2011). Each of the rules at issue
here has been applied in numerous decisions. Id. at 31-73, 93-111, 113-119.
When [a judge] takes the oath of office, 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 to the facts. The preservation of the
rule of law as our last best hope for the just ordering of our
society requires nothing less than an insistence by this Court
that our justice court judges be in fact what they are in name:
judges.
In re Bailey, 541 So.2d 1036, 1039 (Miss. 1989) (emphasis omitted).
[¶25] The White Court went on to look at other possible grounds for finding a
compelling state interest, and it rejected the argument that avoiding preconception on a
particular legal view was a compelling state interest, in part because “it is virtually
impossible to find a judge who does not have preconceptions about the law.” 536 U.S. at
777, 122 S.Ct. at 2536. It similarly rejected the notion that there was a compelling state
interest in maintaining judicial open-mindedness regarding the law, stating, for example,
that Minnesota’s prohibition of a judicial candidate’s statement, “I think it is
constitutional for the legislature to prohibit same-sex marriages,” was “woefully
underinclusive” because the same person could make that statement prior to announcing
his candidacy, and after he is elected. Id. at 779-80, 122 S.Ct. at 2537. (White was
decided before Obergefell.)
9
[¶26] Judge Neely attempts to fit her conduct into the “lack of preconception” prong
discussed in White. 536 U.S. at 766, 122 S.Ct. at 2530. But we are not concerned here
with Judge Neely’s views on the issue of same-sex marriage. Instead, the questions that
Judge Neely’s conduct engender regarding her judicial impartiality go to her bias toward
particular parties, rather than toward particular issues. Judge Neely has indicated that she
will perform marriage ceremonies for one category of parties, but not another. Her
position is a sufficient basis for the public’s confidence in Judge Neely’s impartiality to
be undermined, and thus enforcement of the Code of Judicial Conduct serves a
compelling state interest under these facts. Although Judge Neely contends that this
result would mean that “no one who holds Judge Neely’s widely shared beliefs about
marriage can remain a judge in Wyoming,” that is incorrect. Judge Neely may hold her
religious beliefs, and she must impartially apply the law regardless of those beliefs.
[¶27] It is quite likely that all judges disagree with some aspect of the law for religious,
personal, or moral reasons. Yet the judiciary plays a key role in preserving the principles
of justice and the rule of law, which requires the consistent application of the law
regardless of the judge’s personal views. “Although each judge comes to the bench with
a unique background and personal philosophy, a judge must interpret and apply the law
without regard to whether the judge approves or disapproves of the law in question.”
Wyoming Code of Judicial Conduct, Rule 2.2, Comment 2. “Our obligation is to define
the liberty of all, not to mandate our own moral code.” Planned Parenthood of
Southeastern Pennsylvania. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 2806, 120
L.Ed.2d 674 (1992). An independent judiciary “requires that judges decide cases
according to the law and the facts, without regard to whether” a particular law is popular,
and without permitting a judge’s “other interests or relationships to influence the judge’s
judicial conduct or judgment.” Wyoming Code of Judicial Conduct, Rule 2.4(B) and
Comment. “No judge is permitted to substitute his concept of what the law ought to be
for what the law actually is.” In re Inquiry Concerning a Judge, J.Q.C. No. 77-16, 357
So.2d 172, 179 (Fla. 1978). We find that the state has a compelling interest in
maintaining public confidence in the judiciary by enforcing the rules requiring
independence and impartiality.
[¶28] We turn next to the narrowly-tailored prong of strict scrutiny. The Williams-Yulee
Court explained that “narrowly tailored” does not mean “perfectly tailored.”
The impossibility of perfect tailoring is especially apparent
when the State’s compelling interest is as intangible as public
confidence in the integrity of the judiciary. . . . Here, Florida
has concluded that all personal solicitations by judicial
candidates create a public appearance that undermines
confidence in the integrity of the judiciary; banning all
personal solicitations by judicial candidates is narrowly
tailored to address that concern.
Williams-Yulee, 135 S.Ct. at 1671.
10
[¶29] Judge Neely argues that “removing [her] for her religious beliefs and expression
about marriage is fatally underinclusive,” and therefore not narrowly tailored. In Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124
L.Ed.2d 472 (1993), the United States Supreme Court found that the challenged
ordinances were not narrowly tailored because they were underinclusive to the city’s
professed governmental interest in protecting the public health and preventing cruelty to
animals. The ordinances, while prohibiting the Church of Lukumi’s animal sacrifice,
permitted many other types of animal deaths, like euthanasia of unwanted animals. Id.,508 U.S. at 543, 113 S.Ct. at 2232. Judge Neely attempts to draw parallels to her
circumstances, arguing that a municipal court judge “may critique or praise . . . the Guzzo
decision that brought same-sex marriage to Wyoming” or could “publicly disclose their
views on controversial political issues” in a caucus-type election procedure. Judge Neely
again mischaracterizes her conduct at issue. She is not subject to discipline merely
because she has expressed her religious beliefs. 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. Obergefell, 135 S.Ct. at 2598, 2602 (due process clause and equal
protection clauses of the Fourteenth Amendment guarantee same-sex couples the right to
marry).
[¶30] Judge Neely further argues that disciplining her would violate her free speech
rights because the Commission would not have brought a disciplinary proceeding against
a judge who expressed her willingness to follow the law on same-sex marriage, and
therefore it is discriminating against her based on the content and viewpoint of her
speech. But there would indeed be no basis for disciplining a judge who indicated her
willingness to follow the law and thus demonstrated her impartiality toward parties. The
action against Judge Neely is a response to her deeds, not her faith.
[¶31] Judge Neely argues that others could perform marriages for same-sex couples,
causing no disruption to their rights to marry, and the dissent relies heavily on the fact
that same-sex couples will likely face no obstacles to getting married despite Judge
Neely’s refusal to perform their marriages. These contentions may be true, but they have
no relevance to the decision whether she has violated any provision of the Code of
Judicial Conduct. Even if we accepted the premise that allowing Judge Neely to opt out
would have no effect on the rights of same-sex couples to marry,8 the problem of the
public’s faith in judicial integrity remains. As Judge Posner explained in the context of a
case decided under the Civil Rights Act of 1964, §§ 701(j), 703(a)(1), 42 U.S.C.A.
§§ 2000e(j), 2000e-2(a)(1):
8
“There cannot be one set of employees to serve the preferred couples and another who is ‘willing’ to
serve LGBT citizens with a ‘clear conscience’ . . . .” Barber v. Bryant, Nos. 3:16-CV-417 & 442-CWR-
LRA, 2016 WL 3562647, at *23 (S.D. Miss. June 30, 2016).
11
Mr. Rodriguez, a Chicago police officer, claims, I have no
reason to doubt sincerely, that it violates his religious
principles to guard abortion clinics. He is entitled to his view.
He is not entitled to demand that his police duties be altered
to conform to his view any more than a volunteer member of
the armed forces is entitled to demand that he be excused
from performing military duties that conflict with his
religious faith . . . or than a firefighter is entitled to demand
that he be entitled to refuse to fight fires in the places of
worship of religious sects that he regards as Satanic. The
objection to recusal in all of these cases is not the
inconvenience to the police department, the armed forces, or
the fire department, as the case may be, though that might be
considerable in some instances. The objection is to the loss
of public confidence in governmental protective services if
the public knows that its protectors are at liberty to pick and
choose whom to protect.
The public knows that its protectors have a private agenda;
everyone does. But it would like to think that they leave that
agenda at home when they are on duty—that Jewish
policemen protect neo-Nazi demonstrators, that Roman
Catholic policemen protect abortion clinics, that Black
Muslim policemen protect Christians and Jews, that
fundamentalist Christian policemen protect noisy atheists and
white-hating Rastafarians, that Mormon policemen protect
Scientologists, and that Greek-Orthodox policemen of
Serbian ethnicity protect Roman Catholic Croats. We judges
certainly want to think that U.S. Marshals protect us from
assaults and threats without regard to whether, for example,
we vote for or against the pro-life position in abortion cases.
Rodriguez v. City of Chicago, 156 F.3d 771, 779 (7th Cir. 1998) (Posner, C.J.,
concurring) (emphasis added). In Endres v. Indiana State Police, 349 F.3d 922, 926 (7th
Cir. 2003), the Seventh Circuit upheld the termination of a state police officer who would
not defend a casino because it would violate his religious beliefs, emphasizing
the need to hold police officers to their promise to enforce the
law without favoritism—as judges take an oath to enforce
all laws, without regard to their (or the litigants’) social,
political, or religious beliefs. Firefighters must extinguish all
fires, even those in places of worship that the firefighter
regards as heretical. Just so with police.
Id. at 927 (emphasis added).
12
[¶32] Allowing Judge Neely to opt out of same-sex marriages is contrary to the
compelling state interest in maintaining an independent and impartial judiciary. Judge
Neely, like all judges, has taken an oath to enforce all laws, and the public depends upon
an impartial judiciary, regardless of religious sentiment. “The objection is to the loss of
public confidence in [the judiciary] if the public knows that its [judges] are at liberty to
pick and choose whom to [serve].” Rodriguez, 156 F.3d at 779.
[¶33] “The Free Exercise Clause simply cannot be understood to require the
Government to conduct its own internal affairs in ways that comport with the religious
beliefs of particular citizens.” Bowen v. Roy, 476 U.S. 693, 699, 106 S.Ct. 2147, 2152,
90 L.Ed.2d 735 (1986). In Bowen, parents claimed that the government’s requirement
that they provide a social security number for their child in order to receive government
benefits violated their sincerely held religious beliefs that the number would “rob the
spirit” of their daughter. Id. at 696, 106 S.Ct. at 2150. The Court distinguished between
beliefs and conduct, finding that the parents’ issue implicated conduct and therefore was
not entitled to absolute protection under the First Amendment. Id. at 699, 106 S.Ct. at
2152. It rejected the parents’ claim, holding that “[t]he Free Exercise Clause affords an
individual protection from certain forms of governmental compulsion; it does not afford
an individual a right to dictate the conduct of the Government’s internal procedures.” Id.
at 700, 106 S.Ct. at 2152.
[¶34] Amici Curiae point out that in many cases, courts have required accommodation
for religious beliefs. For instance, in American Postal Workers Union, San Francisco
Local v. Postmaster General, 781 F.2d 772, 776 (9th Cir. 1986), the court held that Title
VII of the Civil Rights Act of 1964 required the post office to determine reasonable
accommodations for postal workers who believed that processing draft registration forms
was contrary to their religious beliefs. But there, unlike in Rodriguez and Endres, there
was no issue of public confidence in the neutrality of the clerks processing draft
registrations. Amici Curiae also cite Haring v. Blumenthal, 471 F.Supp. 1172 (D.C. Cir.
1979), another Title VII case in which the court held that the Internal Revenue Service
was required to allow its employee to disqualify himself from handling applications for
exemptions from groups whose practices were abhorrent to his religious beliefs. There,
the court rejected the argument that the integrity of the Internal Revenue Service was at
stake, holding that “[i]t is difficult to see how that stand could impair taxpayer confidence
in the tax system or the impartiality of the IRS.” Id. at 1183. In contrast, in Judge
Neely’s case, public confidence in the judiciary is the central issue.
[¶35] Perhaps the seminal case representing government accommodation to freedom of
religion is Wisconsin v. Yoder, 406 U.S. 205, 208, 92 S.Ct. 1526, 1529, 32 L.Ed.2d 15(1972). In Yoder, the Court found unconstitutional Wisconsin’s application of its
compulsory school attendance law to Amish parents who believed that any education
beyond eighth grade undermined their entire, religiously-focused way of life. 406 U.S. at
13
235-36, 92 S.Ct. 1543. The Yoder opinion emphasized “the interrelationship of belief
with [the Amish] mode of life, the vital role that belief and daily conduct play in the
continued survival of Old Order Amish communities and their religious organization,”
and how as a result compulsory high-school education would “substantially interfer[e]
with the religious development of the Amish child and his integration into the way of life
of the Amish faith community.” Id. at 218, 235, 92 S.Ct. at 1534, 1543. The Court held
compulsory attendance at any school—whether public, private, or home-based—
prevented these Amish parents from making fundamental decisions regarding their
children’s religious upbringing and effectively overrode their ability to pass their religion
on to their children, as their faith required. Id. at 233-35, 92 S.Ct. 1542-43.
[¶36] There are obvious distinctions between Judge Neely’s case and Yoder. She is
required by the Wyoming Code of Judicial Conduct to perform a ministerial judicial
function in an impartial manner. Unlike the Amish in Yoder, occasionally performing
this function does not threaten her very “way of life” by impacting a distinct community
and life style. Yoder emphasized that its holding was essentially sui generis, as few sects
could make a similar showing of a unique and demanding religious way of life that is
fundamentally incompatible with any schooling system. See Yoder, 406 U.S. at 235-36,
92 S.Ct. at 1543. Judge Neely can make no such showing. Moreover, in Yoder, the
Amish parents had been criminally convicted for violating Wisconsin’s compulsory
school attendance law. Id. at 207, 92 S.Ct. at 1529. Judge Neely is not compelled to
serve as a part-time circuit court magistrate and does not face criminal prosecution.
[¶37] Neither Judge Neely nor Amici Curiae direct us to any case in which
accommodation for religious beliefs has been required when the requested
accommodation would undermine the fundamental function of the position. “The First
Amendment . . . gives no one the right to insist that in pursuit of their own interests others
must conform their conduct to his own religious necessities.” Estate of Thornton v.
Caldor, Inc., 472 U.S. 703, 710, 105 S.Ct. 2914, 2918 (1985) (citations omitted). There
is no less restrictive alternative than discipline for Judge Neely that would serve the
compelling state interest in judicial integrity.
[¶38] Judge Neely’s refusal to perform marriage ceremonies for same-sex couples, in
spite of the law recognizing their right to be married, implicates the compelling state
interest in maintaining the integrity, independence, and impartiality of the judiciary.
Imposing discipline on her for such conduct is not underinclusive or overbroad. We will
address the scope of the discipline necessary and permissible under the narrowly-tailored
standard below. See infra ¶¶ 72-75.
14
II. Does the Wyoming Constitution permit this Court to discipline Judge Neely for
announcing that her religious beliefs prevent her from officiating same-sex
marriages?
[¶39] The Wyoming Constitution can offer “broader protection than the United States
Constitution.” Andrews v. State, 2002 WY 28, ¶ 31, 40 P.3d 708, 715 (Wyo. 2002); see
also O’Boyle v. State, 2005 WY 83, ¶ 23, 117 P.3d 401, 408 (Wyo. 2005). “Recourse to
our state constitution as an independent source for recognizing and protecting the
individual rights of our citizens must spring not from pure intuition, but from a process
that is at once articulable, reasonable and reasoned.” Bear Cloud v. State, 2014 WY 113,
¶ 14, 334 P.3d 132, 137 (Wyo. 2014) (quoting Saldana v. State, 846 P.2d 604, 622 (Wyo.
1983) (Golden, J., concurring)).
[¶40] Judge Neely offers an articulable, reasonable, and reasoned argument for
considering whether Wyoming Constitution, article 1, section 18 and article 21, section
25 provide greater protection than does the United States Constitution.9 They provide:
The free exercise and enjoyment of religious
profession and worship without discrimination or preference
shall be forever guaranteed in this state, and no person shall
be rendered incompetent to hold any office of trust or profit,
or to serve as a witness or juror, because of his opinion on
any matter of religious belief whatever; but the liberty of
conscience hereby secured shall not be so construed as to
excuse acts of licentiousness or justify practices inconsistent
with the peace or safety of the state.
Wyo. Const. art. 1, § 18. Judge Neely points out that this provision is significantly
broader than the similar provision in the United States Constitution―“but no religious
Test shall ever be required as a Qualification to any Office or public Trust under the
United States.” U.S. Const. art. VI.
Perfect toleration of religious sentiment shall be
secured, and no inhabitant of this state shall ever be molested
in person or property on account of his or her mode of
religious worship.
Wyo. Const. art. 21, § 25. In contrast, the United States Constitution states that
“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof . . . . ” U.S. Const. amend. I.
9
Her reference to Wyoming Constitution, Article 1, section 20 (free speech rights) contains no argument
for why the Wyoming Constitution might provide greater free speech rights than does the First
Amendment of the United States Constitution, and we will therefore not address that provision of the
Wyoming Constitution separately.
15
[¶41] In construing the Wyoming Constitution, we follow the same rules as those we
apply to statutory interpretation. Our “fundamental purpose is to ascertain the intent of
the framers.” Cathcart v. Meyer, 2004 WY 49, ¶ 39, 88 P.3d 1050, 1065 (Wyo. 2004)
(citations omitted). Judge Neely argues that these provisions in Wyoming’s Constitution
are broader than the First Amendment of the United States Constitution, and broader than
those of other states. She further directs us to the debates during the constitutional
convention, which indicate article 1, section 18 was adopted in conjunction with the
defeat of a proposed amendment, “aimed at the state’s Mormon population, that would
have prohibited anyone who entered into or believed in polygamy from voting, holding
public office, or serving as a juror.” Robert B. Keiter & Tim Newcomb, The Wyoming
State Constitution, at 69 (2011).10 Courts of other states with similar constitutional
language have held that their state constitutions provided stronger protection than the
federal constitution. See First Covenant Church of Seattle v. City of Seattle, 840 P.2d
174, 224 (Wash. 1992); State v. Hersberger, 462 N.W.2d 393, 397 (Minn. 1990).
[¶42] The language of Wyoming Constitution article 1, section 18 and article 21,
section 25 may offer broader protections than does the United States Constitution, but we
do not find that the protections they may offer are applicable to Judge Neely’s
circumstances here. That is because neither her opinion on matters of her religious belief,
nor her religious sentiment, are the focus of the state action.
[¶43] Referring to the debates of the constitutional convention, Judge Neely asserts that
this Court should conclude that, “just as a Mormon judge who believes in polygamy
cannot be excluded from judicial office because of her beliefs about marriage, neither
may Judge Neely or others be expelled as municipal judges because of their sincere
beliefs about that issue.” This argument ignores the important distinction between the
freedom to believe and the freedom to act. “While the freedom to believe is absolute, the
freedom to act cannot be. ‘Conduct remains subject to regulation for the protection of
society. The freedom to act must have appropriate definition to preserve the enforcement
of that protection.’” Trujillo v. State, 2 P.3d 567, 576-77 (Wyo. 2000) (quoting Cantwell,
10
We have noted before that:
The debates of the convention are not a very reliable source of
information upon the subject of the construction of any particular word
or provision of the constitution. As we understand the current of
authority, and the tendency of the courts, they may for some purpose, but
in a limited degree, be consulted in determining the interpretation to be
given some doubtful phrase or provision; but, as a rule, they are deemed
an unsafe guide.
Powers v. State, 2014 WY 15, ¶ 39, 318 P.3d 300, 314 (Wyo. 2014), reh’g denied (Feb. 12, 2014)
(quoting Rasmussen v. Baker, 7 Wyo. 117, 138, 50 P. 819, 824 (Wyo. 1897)).
16
310 U.S. at 304, 60 S.Ct. at 903). In Trujillo, we rejected the appellant’s challenge to
state drug laws on both United States and Wyoming constitutional grounds, and we held
the notion that compliance with the law could be “contingent upon the law’s coincidence
with his religious beliefs,” thus making him “a law unto himself,” would contradict “both
constitutional tradition and common sense.” Trujillo, 2 P.3d at 575 n.4, 577 (quoting
Smith, 494 U.S. at 885, 110 S.Ct. at 1603). The Wyoming Constitution does not give
Judge Neely the prerogative to perform her judicial functions contingent upon the law’s
coincidence with her religious beliefs.
[¶44] Just like the county clerk in Miller v. Davis, 123 F.Supp.3d 924, 944 (E.D. Ky.
2015), appeal dismissed, cause remanded by Miller v. Davis, Nos. 15-5880, 15-5978,
2016 WL 3755870 (6th Cir. July 13, 2016) (finding county clerk must issue marriage
licenses to same-sex couples), Judge Neely remains “free to practice her [religious]
beliefs,” and she is “free to believe that marriage is a union between one man and one
woman, as many Americans do. However, her religious convictions cannot excuse her
from performing the duties that she took an oath to perform . . . .” Id. “The State is not
asking her to condone same-sex unions on moral or religious grounds, nor is it restricting
her from engaging in a variety of religious activities.” Id. Judge Neely is not being
“molested . . . on account of [her] mode of religious worship.” Wyo. Const. art. 21, § 25.
[¶45] The Alabama Supreme Court rejected a similar argument by Chief Justice Roy
Moore, when he was removed from his position as a consequence of his refusal to
comply with a federal court order enjoining him to remove a monument to the Ten
Commandments that he had placed in the rotunda of the Alabama Judicial Building.
Moore v. Judicial Inquiry Comm’n of State of Alabama, 891 So.2d 848, 851 (Ala. 2004).
Justice Moore argued that he was being removed from office because of a “religious
test,” in violation of the Alabama Constitution11 and the free exercise clause of the United
States Constitution. The court cited with approval two federal courts which
concluded that this case is not about a public official’s right to
acknowledge God, as Chief Justice Moore contends. Rather,
this case is about a public official who took an oath to uphold
the Constitution of the United States and then refused to obey
a valid order of a United States District Court holding that the
placement of the monument in the Judicial Building violated
the Establishment Clause of the First Amendment to the
United States Constitution.
Id. at 859.
11
Alabama Constitution section 3 provides that “no religious test shall be required as a qualification to
any office or public trust under this state.” Moore, 891 So.2d at 858 (citation omitted).
17
[¶46] It is likely correct, as Judge Neely contends, that “a Mormon judge who believes
in polygamy cannot be excluded from judicial office because of her beliefs about
marriage,” but if a judge broke the law against polygamy by maintaining multiple
marriages, she would be removed as a judge because she broke the law, not because of
her beliefs. See, e.g., In re Steed, 131 P.3d 231, 232 (Utah 2006) (The court removed the
judge because his multiple marriages were contrary to law, holding “it is of little or no
consequence that the judge may believe a criminal statute is constitutionally defective.”)
Similarly, Judge Neely has done more than express her opinion on a matter of religious
belief. She has taken the position that, although she has sworn to “support, obey and
defend” the constitutions of the United States and Wyoming, when it comes to same-sex
marriages, she will decline to do so. Judge Neely is not being disciplined “because of
[her] opinion on any matter of religious belief,” she is being disciplined because of her
conduct. Thus, Wyoming Constitution article 1, section 18 and article 21, section 25 are
not violated by such discipline.
[¶47] Our conclusion is further reinforced by an examination of the entire Wyoming
Constitution, for “[e]very statement in the constitution must be interpreted in light of the
entire document, with all portions thereof read in pari materia.” Cathcart, 2004 WY 49,
¶ 40, 88 P.3d at 1065-66. In addition to protecting religious freedom, our constitution
recognizes the importance of equal rights for all.
[¶48] “In their inherent right to life, liberty and the pursuit of happiness, all members of
the human race are created equal.” Wyo. Const. art. 1, § 2. “No person shall be deprived
of life, liberty or property without due process of law.” Wyo. Const. art. 1, § 6.
Since equality in the enjoyment of natural and civil
rights is only made sure through political equality, the laws of
this state affecting the political rights and privileges of its
citizens shall be without distinction of race, color, sex, or any
circumstance or condition whatsoever other than individual
incompetency, or unworthiness duly ascertained by a court of
competent jurisdiction.
Wyo. Const. art. 1, section 3. The Wyoming Constitution also contains its own variation
of the federal establishment clause. See Wyo. Const. art. 1, § 19 (Appropriations for
sectarian or religious societies or institutions prohibited); Wyo. Const. art. 7, § 12
(Sectarianism prohibited). “Considering the state constitution’s particular call for equal
protection, the call to recognize basic rights, and notion that these particular protections
are merely illustrative, the Wyoming Constitution is construed to protect people against
legal discrimination more robustly than does the federal constitution.” Johnson v. State
Hearing Examiner’s Office, 838 P.2d 158, 165 (Wyo. 1992). Judge Neely would have us
find, not only that the religious liberty provisions of the Wyoming Constitution provide
greater protections than the United States Constitution provides, but also that they trump
18
all other provisions of the Wyoming Constitution. That is contrary to the rules of
constitutional interpretation.
[¶49] Applying our rule that, in interpreting the constitution, “no part will be inoperative
or superfluous,” Geringer v. Bebout, 10 P.3d 514, 520 (Wyo. 2000), we could not read
the provisions recognizing religious liberty to render those provisions recognizing equal
rights and due process to be inoperative or superfluous. Judge Neely contends that the
religious freedom provisions of the Wyoming Constitution entitle her to act in accordance
with her religious beliefs, so long as they do not “foster[] licentiousness or jeopardize[]
public safety.” Such a rule would permit her, and any other judge, to apply the law in
accordance with their individual views on what “divine law” required, to the exclusion of
any other right under the Wyoming Constitution. That is an untenable position.
Can a man excuse his practices . . . because of his religious
belief? To permit this would be to make the professed
doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto
himself. Government could exist only in name under such
circumstances.
Reynolds v. United States, 98 U.S. 145, 166-67, 25 L.Ed. 244 (1878).
[¶50] Further, the broad reading of the Wyoming constitutional provisions recognizing
freedom of religion that Judge Neely urges upon us would also require us to find that
those provisions of the state constitution trump the federal due process and equal
protection rights that the United States Supreme Court relied upon in Obergefell, 135
S.Ct. at 2602-03. If we held that freedom of religious opinion meant no state official in
Wyoming had to marry a same-sex couple if it offended his or her religious belief, the
right of same-sex couples to marry under the United States Constitution would be
obviated. “The State of Wyoming is an inseparable part of the federal union, and the
constitution of the United States is the supreme law of the land.” Wyo. Const. art. 1,
§ 37.
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.
U. S. Const. art. VI.
19
[¶51] The United States Supreme Court explained this when Arkansas state officials
sought to avoid school desegregation, arguing in part that they were not bound by the
Court’s holding in Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686,
98 L.Ed. 873 (1954).
Article VI of the Constitution makes the Constitution
the ‘supreme Law of the Land.’ In 1803, Chief Justice
Marshall, speaking for a unanimous Court, referring to the
Constitution as ‘the fundamental and paramount law of the
nation,’ declared in the notable case of Marbury v. Madison,
1 Cranch 137, 177, 2 L.Ed. 60 [(1803)], that ‘It is
emphatically the province and duty of the judicial department
to say what the law is.’ This decision declared the basic
principle that the federal judiciary is supreme in the
exposition of the law of the Constitution, and that principle
has ever since been respected by this Court and the Country
as a permanent and indispensable feature of our constitutional
system. It follows that the interpretation of the Fourteenth
Amendment enunciated by this Court in the Brown case is the
supreme law of the land, and Art. VI of the Constitution
makes it of binding effect on the States ‘any Thing in the
Constitution or Laws of any State to the Contrary
notwithstanding.’ Every state legislator and executive and
judicial officer is solemnly committed by oath taken pursuant
to Art. VI, ¶3 ‘to support this Constitution.’ Chief Justice
Taney, speaking for a unanimous Court in 1859, said that this
requirement reflected the framers’ ‘anxiety to preserve it [the
Constitution] in full force, in all its powers, and to guard
against resistance to or evasion of its authority, on the part of
a State. ***’ [Citation omitted.]
Cooper v. Aaron, 358 U.S. 1, 18, 78 S.Ct. 1401, 1409-10, 3 L.Ed.2d 5 (1958); see also
Williams v. Eaton, 443 F.2d 422, 429 (10th Cir. 1971) (“[I]f plaintiffs establish a
violation of Federal constitutional rights and entitlement to relief under the Federal civil
rights acts, the Wyoming Constitution may not immunize the defendants and override the
Federal constitutional principles . . . .”).
[¶52] Just last year, Alabama Chief Justice Roy Moore was suspended from office
because of his instruction to Alabama probate judges to disregard the opinion of the
United States Supreme Court. He said that “the Obergefell opinion, being manifestly
absurd and unjust and contrary to reason and divine law, is not entitled to precedential
value.” In the Matter of: Roy S. Moore, Chief Justice, Supreme Court of Alabama,
Alabama Court of the Judiciary Case No. 46, Final Judgment, at 15 (September 30,
20
2016). As the Court of the Judiciary held, an individual judge’s interpretation of divine
law must give way to the “supreme law of the land.” Id. at 34.12
[¶53] The religious freedom provisions of the Wyoming Constitution do not prohibit the
state from proceeding with disciplinary action against Judge Neely for her stated refusal
to conduct same-sex marriages.
III. Are the provisions of the Wyoming Code of Judicial Conduct alleged to have been
violated by Judge Neely void for vagueness?
[¶54] Judge Neely argues that the provisions of the Wyoming Code of Judicial Conduct
that she is charged with violating are void for vagueness, citing U.S. Const. amends. I and
XIV; Wyo. Const. art. 1, §§ 6, 7, 20. “The prohibition against vague regulations of
speech is based in part on the need to eliminate the impermissible risk of discriminatory
enforcement.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051, 111 S.Ct. 2720,
2732, 115 L.Ed.2d 888 (1991). A “provision is not unconstitutionally vague if its
wording can reasonably be said to provide sufficient notice to a person of ordinary
intelligence that his conduct was [contrary to the rules].” Guilford v. State, 2015 WY
147, ¶ 15, 362 P.3d 1015, 1018 (Wyo. 2015). Judge Neely again mischaracterizes the
conduct for which she is being disciplined as “honestly conveying her religious beliefs,”
and she argues that “the Commission could use Rule 1.2’s vague language to punish a
judge who expresses her moral belief that human life begins at conception . . . .”
However, as discussed above, Judge Neely is not being disciplined for her expression of
her religious beliefs, but for her conduct in refusing to impartially perform her judicial
functions.
12
The law recognizes no hierarchy of sincerely held religious beliefs. “‘[R]eligious beliefs need not be
acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment
protection.’” Church of the Lukumi Babalu, 508 U.S. at 531, 113 S.Ct. at 2225 (quoting Thomas v.
Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714, 101 S.Ct. 1425, 1430, 67 L.Ed.2d
624 (1981)). Yet if Judge Neely had taken the position that her religion prevented her from conducting
interracial marriages, a right which our society now generally accepts, there would be little controversy
regarding her discipline. While we respect the religious views of those who deem same-sex marriage to
be wrong, we cannot give those views greater weight in our constitutional analysis simply because they
are more widely held.
The idea of the Constitution “was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be
applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U.S.
624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). This is why
“fundamental rights may not be submitted to a vote; they depend on the
outcome of no elections.” Ibid. It is of no moment whether advocates of
same-sex marriage now enjoy or lack momentum in the democratic
process.
Obergefell, 135 S. Ct. at 2605-06.
21
[¶55] Further, Judge Neely ignores the law which recognizes that the standard for
vagueness is relaxed when applied to codes of professional conduct.
Given the traditions of the legal profession and an attorney’s
specialized professional training, there is unquestionably
some room for enforcement of standards that might be
impermissibly vague in other contexts; an attorney in many
instances may properly be punished for “conduct which all
responsible attorneys would recognize as improper for a
member of the profession.”
Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 666,
105 S.Ct. 2265, 2289, 85 L.Ed.2d 652 (1985) (Brennan, J., concurring in part and
dissenting in part) (citation omitted). The same rationale has been applied to judicial
codes of conduct. See, e.g., Matter of Halverson, 169 P.3d 1161, 1176 (Nev. 2007)
(“[W]hen evaluating a statute that applies only to judges, the issue is whether an ordinary
judge could understand and comply with it.”). And in fact, courts have consistently
rejected vagueness challenges in judicial discipline matters. Matter of Halverson, 169
P.3d at 1176; Judicial Conduct Comm’n v. McGuire (In re McGuire), 685 N.W.2d 748,
761 (N.D. 2004); In re Barr, 13 S.W.3d 525, 565 (Tex. Rev. Trib. 1998); In re Complaint
Against Harper, 673 N.E.2d 1253, 1263, (Ohio 1996); In re Disciplinary Proceeding
Against Ritchie, 870 P.2d 967, 972 (Wash. 1994); Matter of Young, 522 N.E.2d 386, 387-
88 (Ind. 1988); Matter of Seraphim, 294 N.W.2d 485, 493, (Wis. 1980).
[¶56] Although Judge Neely is not an attorney, she has been a municipal court judge
since 1994, and she served on the Select Committee to review the Wyoming Code of
Judicial Conduct in 2008. That committee met many times, and as a consequence, Judge
Neely was familiar with the Wyoming Code of Judicial Conduct. Judge Neely’s own
conduct tells us that she understood her refusal to perform same-sex marriages could be a
code violation. She met with Judge Haws to express her concern to him, and then she
wrote to the Judicial Ethics Advisory Committee to ask if she could recuse herself from
officiating same-sex weddings “without fear of civil rights repercussions.” We do not
mean to suggest that Judge Neely should be faulted for asking the questions (although we
note, as did the Judicial Ethics Advisory Committee, that her request for guidance from
them came after she had already engaged in the conduct at issue here, and appeared to be
more of a request for their approval than a request for guidance); we simply observe that
this conduct indicates she suspected her position would put her in conflict with the
Wyoming Code of Judicial Conduct. We find that an ordinary judge would also
understand that refusal to conduct some marriages on the basis of the sexual orientation
of the couple did not comply with the Code of Judicial Conduct and thus, it is not
unconstitutionally vague.
22
IV. Did Judge Neely violate the Wyoming Code of Judicial Conduct?
[¶57] Because the Wyoming Supreme Court makes the initial determination whether to
impose discipline on a judicial officer, we do not “review” a recommendation of the
Commission on Judicial Conduct and Ethics in the same way that we review decisions of
the district courts. Wyo. Const. art. 5, § 6(f). Our approach here is analogous to our
approach in attorney discipline cases. While the Court “gives due consideration to the
findings and recommendations of the Board, [] ‘the ultimate judgment in these cases is
vested in this Court.’” Bd. of Prof’l Responsibility v. Custis, 2015 WY 59, ¶¶ 19-21, 348
P.3d 823, 829 (Wyo. 2015) (citations omitted). Although the Commission urges us to
give its findings a “significant degree of deference,” we decline to do so, particularly in
this case which was decided on cross-motions for summary judgment, which we review
de novo. Snell v. Snell, 2016 WY 49, ¶ 18, 374 P.3d 1236, 1240 (Wyo. 2016) (On review
of summary judgment, “[w]e examine the record from the vantage point most favorable
to the party opposing the motion, and we give that party the benefit of all favorable
inferences that may fairly be drawn from the record.” (citation omitted)). We therefore
engage in a de novo review of the record to decide whether there is clear and convincing
evidence that Judge Neely violated the Wyoming Code of Judicial Conduct. Rules
Governing the Commission on Judicial Conduct and Ethics, Rule 16(b). “Clear and
convincing evidence” is defined as “that kind of proof which must persuade . . . that the
truth of a contention is highly probable.” Rules Governing the Commission on Judicial
Conduct and Ethics, Rule 2(b). We review questions of law de novo, without giving any
deference to the lower tribunal’s determinations. Pope v. Rosenberg, 2015 WY 142,
¶ 15, 361 P.3d 824, 829 (Wyo. 2015).
[¶58] The primary objective of judicial discipline is to hold judges to a high ethical
standard that fosters public confidence in the integrity and impartiality of the judiciary.
Garwin, supra, at 3; In re Johnstone, 2 P.3d 1226, 1234 (Alaska 2000). “Unlike the other
branches of government, the authority of the judiciary turns almost exclusively on its
credibility and the respect warranted by its rulings . . . .” Carey v. Wolnitzek, 614 F.3d
189, 194 (6th Cir. 2010). The Preamble to the Wyoming Code of Judicial Conduct
describes the critical importance of such a high standard for the judiciary:
An independent, fair and impartial judiciary is indispensable
to our system of justice. The United States legal system is
based upon the principle that an independent, impartial, and
competent judiciary, composed of men and women of
integrity, will interpret and apply the law that governs our
society. Thus, the judiciary plays a central role in preserving
the principles of justice and the rule of law. Inherent in all
the Rules contained in this Code are the precepts that judges,
individually and collectively, must respect and honor the
judicial office as a public trust and strive to maintain and
enhance confidence in the legal system.
23
A. Rule 1.1.
[¶59] Rule 1.1. Compliance with the Law.
A judge shall comply with the law, including the Code of
Judicial Conduct.
The Commission found that Judge Neely’s unwillingness to perform same-sex marriages
is a violation of Rule 1.1. The vast majority of Rule 1.1 violations are found when a
judge violates a criminal law in his or her personal conduct. See, e.g., In re Coffey’s
Case, 949 A.2d 102, 120 (N.H. 2008) (judge violated code when she transferred assets in
violation of Fraudulent Transfer Act); Disciplinary Counsel v. Ault, 852 N.E.2d 727, 728,
730 (Ohio 2006) (municipal court judge, convicted of attempting to obtain dangerous
drugs by deception, violated code). As leading commentators have explained: “Whereas
Rule 1.1 addresses the judge’s duty to comply with the law in his or her daily life, this
Rule [Rule 2.2] directs the judge to follow the rule of law when deciding cases.” Garwin,
supra, at 93. Here, there is no suggestion that Judge Neely has failed to comply with the
law in her daily life.
[¶60] The Commission directs us to a handful of cases in which judges were found to
have violated Rule 1.1 as a result of their failure to properly apply the law in executing
their judicial functions. However, in all those cases, the judges had violated clear
procedural rules of law. See In re Bennington, 24 N.E.3d 958, 961 (Ind. 2015) (The
judge did not comply with Indiana law when she did not “(a) sentence [defendant] to a set
time in jail for contempt, (b) indicate when he would be released, (c) reduce her order to
writing as Indiana Code section 34-47-2-4 requires, (d) appoint him an attorney before
jailing him for contempt, nor (e) inform him of his right to appeal his contempt
sentence.”); In re Harkin, 958 N.E.2d 788, 791 (Ind. 2011) (The judge violated Rule 1.1
when he failed to comply with Indiana law by “referring traffic infraction litigants to the
Traffic School and then dismissing their cases upon their completion of the program
without any dismissal request from the prosecutor . . . .”); In re Young, 943 N.E.2d 1276,
1280 (Ind. 2011) (judge’s imposition of penalties for traffic infractions in excess of
amount authorized by law violated Rule 1.1). The Commission also cites a Texas case in
which a judge was disciplined for his failure to comply with the law, for his use of writs
of attachment to secure the accused’s appearance at a peace bond hearing, his use of
mediation in the peace bond context, and his issuance of arrest warrants without a
complete written complaint, all in violation of Texas law. In re Jones, 55 S.W.3d 243,
248 (Tex. Spec. Ct. Rev. 2000). The Minnesota Supreme Court found violations of Rule
1.1 as a result of failure to comply with the law in the judge’s judicial role in In re Perez,
843 N.W.2d 562, 564 (Minn. 2014) (The judge “failed to release opinions in compliance
with Minn.Stat. § 271.20, falsely certified that he was in compliance with Minn.Stat.
§ 271.20, and made false statements in his orders regarding the date cases were submitted
for decision, in violation of Minn.Stat. § 271.20 . . . .”).
24
[¶61] Even if we were to adopt this minority application of Rule 1.1, Judge Neely has
not violated a clear procedural rule governing the performance of her legal duties. As a
municipal court judge, she had no authority to perform marriages. As a part-time circuit
court magistrate, she had the power to perform marriage ceremonies, but she was not
required to do so. She has not violated the law in her daily life, and she has not violated a
procedural rule of law, as occurred in the cases cited by the Commission, see supra ¶ 60.
Our conclusion that the requirement to comply with the law at Rule1.1 addresses a much
more specific violation than is present here is bolstered by the existence of other rules
applicable to a judge’s application of the law. Rules 1.2, 2.2, and 2.3 address the
necessity of a judge’s impartiality and absence of bias in the performance of her duties.
Those rules are better fitted to the type of judicial misconduct at issue here. There is no
need to stretch the requirement to comply with the law to this situation, where
performance of marriages is a discretionary duty. We recognize that the language of
Rule 1.1 includes compliance with the Code of Judicial Conduct. So to the extent that
Judge Neely has violated other rules of the code, she has violated Rule 1.1. However, we
find that, standing alone, her conduct does not violate Rule 1.1.
B. Rule 1.2.
[¶62] Rule 1.2. Promoting Confidence in the Judiciary.
A judge shall act at all times in a manner that promotes
public confidence in the independence, integrity, and
impartiality of the judiciary, and shall avoid impropriety and
the appearance of impropriety.
The parties dispute the proper application of the “objective standard” that should be
applied to the “appearance of impropriety” determination. Judge Neely advocates the use
of the standard applied by the Mississippi Supreme Court: “The test for impropriety is
whether a judge’s impartiality might be questioned by a reasonable person knowing all
the circumstances.” Mississippi Comm’n on Judicial Performance v. Boland, 975 So.2d
882, 895 (Miss. 2008). The Commission contends that this standard is unduly restrictive
and argues that we should apply the standard used by Alaska, which sets forth the
“objectively reasonable person test” to determine whether the judge failed “to use
reasonable care to prevent objectively reasonable persons from believing an impropriety
was afoot.” In re Johnstone, 2 P.3d at 1235. We do not find this debate to be particularly
fruitful. We apply the standard contained in the Wyoming Code of Judicial Conduct
comments to this rule:
Actual improprieties include violations of law, court rules or
provisions of this Code. The test for appearance of
impropriety is whether the conduct would create in
25
reasonable minds a perception that the judge violated this
Code or engaged in other conduct that reflects adversely on
the judge’s honesty, impartiality, temperament, or fitness to
serve as a judge.
Wyoming Code of Judicial Conduct, Rule 1.2, Comment 5. It goes without saying that
the “reasonable minds” would be fully informed of the relevant facts and circumstances,
and we do not find conflict between the standards proposed by the parties.13
[¶63] The Commission found that Judge Neely’s announcement that she would not
perform same-sex marriages violated Rule 1.2 by giving “the impression to the public
that judges, sworn to uphold the law, may refuse to follow the law of the land.” Judge
Neely contends that “no reasonable person knowing the following facts would conclude
that Judge Neely’s religious beliefs about marriage render her incapable of fairly
adjudicating legal matters for LGBT citizens.” However, the facts she goes on to cite are
unpersuasive. First, she emphasizes that solemnizing marriages is a discretionary
function, but we reject that argument because the requirement of impartiality cannot be
limited to only certain types of judicial functions. In essence, this is an argument that
bias or prejudice is acceptable if the judicial function is discretionary. Our society
requires a fair and impartial judiciary no matter how the judicial function is classified.
The Code of Judicial Conduct recognizes this when it says “The Rules in this Code have
been formulated to address the ethical obligations of any person who serves a judicial
function, and are premised upon the supposition that a uniform system of ethical
principles should apply to all those authorized to perform judicial functions.” Wyoming
Code of Judicial Conduct, Application, Comment 1.
[¶64] The Washington Commission on Judicial Conduct reached the same conclusion in
its Stipulation, Agreement and Order of Admonishment with a judge who told his
colleagues he was “uncomfortable” performing same-sex marriages and asked them to
officiate in his stead. In re Matter of: The Honorable Gary Tabor, Thurston County
13
It is, of course, possible to interpret the phrase “appearance of
impropriety” much more broadly and to suggest that it embraces a
situation where the facts are only partially known, and where this partial
version of the facts might rouse legitimate suspicion. Suppose, for
example, that it was known only that Judge Haynsworth had some stock
in the litigant, without it being known how miniscule his interest was?
But this interpretation would cut so broadly as to prevent a judge named
Jones from presiding at the trial of a defendant named Jones, even
though they were totally unrelated, since it would be possible from
simply reading the docket entries to conclude that they were related to
one another. It will not do.
Matter of Larsen, 616 A.2d 529, 583 (1992) (quoting Rehnquist, Sense and Nonsense About Judicial
Ethics, 28 The Record 694, 701 (1973)) (emphasis in original).
26
Superior Court Judge, WA Jud. Disp. Op. 7251-F-158, 2013 WL 5853965, at *1 (Wash.
Com. Jud. Cond. 2013). In response to press inquiries, Judge Tabor explained that his
decision was based on his religious views, and he expressed his belief that “since judges
are not required, but are only permitted, to perform marriages,” he was within his rights
to decline to perform same-sex marriages. The Commission on Judicial Conduct
disposed of that argument:
Respondent is not required as a judicial officer to solemnize
marriages. Having chosen to make himself available to
solemnize some weddings, however, he is bound by the Code
of Judicial Conduct to do so in a way that does not
discriminate or appear to discriminate against a statutorily-
protected class of people.
Id. at *2.
[¶65] Judge Neely then contends that solemnizing marriages is unlike other magisterial
functions because it “involves personally participating in, celebrating, and expressing
support for a marital union . . . .” However, Wyoming law does not require the person
performing the ceremony to condone the union. Marriage is “a civil contract . . . .” Wyo.
Stat. Ann. § 20-1-101.
In the solemnization of marriage no particular form is
required, except that the parties shall solemnly declare in the
presence of the person performing the ceremony and at least
two (2) attending witnesses that they take each other as
husband and wife.
Wyo. Stat. Ann. § 20-1-106(b) (LexisNexis 2015).
[¶66] Judge Neely states that she would perform other magisterial functions for gays and
lesbians, she would help them find someone else who would perform marriages, she does
not question the legality of same-sex marriage in Wyoming and would recognize the
validity of such marriages, and that homosexuals in Pinedale do not question her
impartiality as a judge. We accept all of these allegations as true. However, they are
insufficient to overcome the fact that she has unequivocally stated her refusal to perform
marriages for same-sex couples, which creates the perception in reasonable minds that
she lacks independence and impartiality.14 We conclude that Judge Neely has violated
Rule 1.2.
14
“Impartiality” includes the “absence of bias or prejudice in favor of, or against, particular parties or
classes of parties . . . .” “Impropriety” includes conduct “that undermines a judge’s independence,
integrity, or impartiality.” Wyoming Code of Judicial Conduct, Terminology.
27
C. Rule 2.2.
[¶67] Rule 2.2. Impartiality and Fairness.
A judge shall uphold and apply the law, and shall perform
all duties of judicial office fairly and impartially.
Judge Neely’s primary function as a circuit court magistrate was to perform marriages.
She has taken the position that she is willing to do that for one class of people (opposite-
sex couples), but not for another (same-sex couples), in spite of the fact that the law
provides both classes are entitled to be married. That is not fair and impartial
performance by any measure. Comment 2 to Rule 2.2 is exactly on point:
Although each judge comes to the bench with a unique
background and personal philosophy, a judge must interpret
and apply the law without regard to whether the judge
approves or disapproves of the law in question.
Wyoming Code of Judicial Conduct, Rule 2.2, Comment 2. The Court respects Judge
Neely’s religious beliefs, but when she allows them to interfere with her fair and
impartial application of the law, she violates Rule 2.2 and undermines the public
confidence in the integrity of the judiciary.
D. Rule 2.3.
[¶68] Rule 2.3. Bias, Prejudice, and Harassment.
(A) A judge shall perform the duties of judicial office,
including administrative duties, without bias or prejudice.
(B) A judge shall not, in the performance of judicial
duties, by words or conduct manifest bias or prejudice, or
engage in harassment, including but not limited to bias,
prejudice, or harassment based upon race, sex, gender,
religion, national origin, ethnicity, disability, age, sexual
orientation, marital status, socioeconomic status, or political
affiliation, and shall not permit court staff, court officials, or
others subject to the judge’s direction and control to do so.
The Commission found that Judge Neely’s “expression of her inability to perform same
sex marriages, manifested a bias with respect to sexual orientation.”
28
[¶69] Judge Neely argues that her comments to the reporter did not manifest “bias or
prejudice”15 based upon “sexual orientation,” but merely expressed her sincerely held
religious belief. But Judge Neely did more than express her religious belief. She
expressed her position that, in her performance of her judicial function, the law would
have to yield to her religious beliefs. (“When law and religion conflict, choices have to
be made.”) The dissent suggests that Judge Neely should not be disciplined because no
same-sex couple has asked her to officiate at a wedding and been turned away. But that
is not likely to happen, given her clear and public statement refusing to perform same-sex
marriages. She would therefore perform her judicial functions as a circuit court
magistrate for one class of people, but not another.
[¶70] Comment 2 to Rule 2.3 states in part: “A judge must avoid conduct that may
reasonably be perceived as prejudiced or biased.” Judge Neely’s refusal to perform same
sex marriages exhibits bias and prejudice toward homosexuals. See Supreme Court of
Ohio, Board of Professional Conduct, Opinion 2015-1, Judicial Performance of Civil
Marriages of Same-Sex Couples, at 4-5 (August 7, 2015) (“A judge who is willing to
perform marriages of only opposite-sex couples because of his or her personal, moral, or
religious beliefs, may be viewed as possessing a bias or prejudice against a specific class
or group of people based on sexual orientation.”) Judge Neely asserts in her affidavit that
she has no bias or prejudice against homosexuals. We examine the record in a light most
favorable to Judge Neely and accept that averment, but our inquiry is whether her
conduct may reasonably be perceived as prejudiced or biased. See Caperton, 556 U.S. at
881, 129 S.Ct. at 2262 (“The Court asks not whether the judge is actually, subjectively
biased, but whether the average judge in his position is ‘likely’ to be neutral . . . .”); In
Matter of: The Honorable Gary Tabor, 2013 WL 5853965, at *3 (“[A] judge must not
only be impartial, but must also be perceived as impartial . . . .”). Judge Neely’s refusal
to conduct marriages on the basis of the couple’s sexual orientation can reasonably be
perceived to be biased. We therefore conclude that Judge Neely violated Rule 2.3.
[¶71] Our conclusion that Judge Neely’s expressed refusal to conduct same-sex
marriages violates the Code of Judicial Conduct is in line with every other tribunal that
has considered the question. The judges in In re Matter of: The Honorable Gary Tabor
and In re Roy S. Moore, were disciplined for their conduct. Five state advisory
commissions offered opinions, consistently stating that a judge may not perform judicial
functions for some parties while declining to perform them for same-sex couples without
violating the Code of Judicial Conduct: Supreme Court of Ohio, Board of Professional
Conduct, Opinion 2015-1, Judicial Performance of Civil Marriages of Same-Sex Couples
(August 7, 2015) (a judge may not decline to perform same-sex marriages, and may not
15
“Bias” is “[a] mental inclination or tendency; prejudice; predilection.” Black’s Law Dictionary 192
(10th ed. 2014). “Prejudice” is “[a] preconceived judgment or opinion formed with little or no factual
basis; a strong and unreasonable dislike or distrust.” Black’s Law Dictionary 1370 (10th ed. 2014).
29
decline to perform all marriages in order to avoid marrying same-sex couples); Supreme
Court of Wisconsin, Judicial Conduct Advisory Committee, Opinion No. 15-1 (August
18, 2015) (judge may not decline to perform only same-sex marriages, but may decline
performing all marriages); Arizona Supreme Court, Judicial Ethics Advisory Committee,
Revised Advisory Opinion 15-01, Judicial Obligation to Perform Same-Sex Marriages
(March 9, 2015) (judge may not distinguish between same-sex and opposite-sex couples);
Nebraska Judicial Ethics Committee Opinion, Opinion 15-1 (June 29, 2015) (a judge who
is willing to perform traditional marriage manifests bias or prejudice by refusing to
perform same-sex marriage); Judicial Conduct Board of Pennsylvania Newsletter,
Impartiality in Solemnizing Marriages, by Elizabeth A. Flaherty, Deputy Counsel,
Judicial Conduct Board (No. 3 Summer 2014) (judge who decides not to perform
wedding ceremonies for same-sex couples must opt out of officiating at all wedding
ceremonies). Only in Mississippi Comm’n on Judicial Performance v. Wilkerson, 876
So.2d 1006, 1016 (Miss. 2004), did the tribunal find that a judge’s comments disparaging
gays and lesbians did not violate the Code of Judicial Conduct. But there, only the
judge’s speech as a private citizen was at issue; not his conduct as a judge, and there was
no issue of performing marriages. See Boland, 975 So.2d at 892 (distinguishing
Wilkerson on basis that judge in Boland made remarks while acting in her judicial
capacity).
SANCTIONS
[¶72] We turn to the determination of the appropriate sanctions to be imposed as a result
of Judge Neely’s violations of Rules 1.2, 2.2, and 2.3 of the Wyoming Code of Judicial
Conduct. The purpose of judicial discipline is primarily to protect the public, but of
necessity it has punitive effects.
The punitive aspect of judicial discipline serves multiple
purposes: it discourages further misconduct on the part of the
disciplined judge and the judiciary as a whole; it reinforces
the general perception that judicial ethics are important; and it
promotes public confidence by demonstrating that the judicial
system takes misconduct seriously. Punishment thus
subserves the various goals of judicial discipline, but is a
means, not an end.
In re Johnstone, 2 P.3d at 1234; see also In re Judicial Campaign Complaint Against
O’Toole, 24 N.E.3d 1114, 1129 (Ohio 2014) (listing purposes of judicial discipline).
[¶73] The Commission has recommended that Judge Neely be removed from her
positions as a part-time circuit court magistrate and as a municipal court judge; however,
we may modify or reject that recommendation. Wyo. Const. art 5, § 6(f)(iv); Rules
Governing the Commission on Judicial Conduct and Ethics, Rule 19(a). We approach
our sanctions analysis mindful of our standard under strict scrutiny, which requires us to
30
narrowly tailor the restrictions on Judge Neely’s speech and religious expression. We
endeavor to craft a sanction that does not “unnecessarily circumscrib[e] protected
expression.” White, 536 U.S. at 775, 122 S. Ct. at 2535 (Scalia, J., with three justice
concurring and one concurring in the result) (quoting Brown v. Hartlage, 456 U.S. 45, 54,
102 S.Ct. 1523, 1529, 71 L.Ed.2d 732 (1982). We are also guided by the relevant factors
for determining the appropriate sanctions set forth in Rule 8(d)(2) of the Rules Governing
the Commission on Judicial Conduct and Ethics:
(A) the nature, extent, and frequency of the misconduct
Judge Neely’s refusal to conduct same-sex marriages, and her indication that her
religious beliefs would override the rule of law undermines public confidence in the
integrity and impartiality of the judiciary. But her misconduct was an isolated response
to a quickly-changing legal landscape, one in which many judges have experienced
similar turmoil. See supra ¶ 71.
(B) the judge’s experience and length of service on the bench
Judge Neely has had a long career as a municipal court judge and as a part-time
circuit court magistrate; a career for which she is widely respected.
(C) whether the conduct occurred in the judge’s official capacity or private life
As discussed above, the misconduct occurred in Judge Neely’s official capacity.
She did not merely express her opinion about same-sex marriage, she expressed how that
opinion would impact her performance of her judicial functions.
(D) the nature and extent to which the acts of misconduct injured other persons
or respect for the judiciary
There is no evidence that any person has been injured. And while there is no
evidence of injury to respect for the judiciary, under the objective standard that we apply,
we have concluded that her conduct does undermine the public’s respect for the judiciary.
(E) whether and to what extent the judge exploited his or her position for
improper purposes
Judge Neely has not exploited her position for improper purposes.
(F) whether the judge has recognized and acknowledged the wrongful nature of
the conduct and manifested an effort to change or reform the conduct
Judge Neely has not recognized or acknowledged the wrongful nature of her
conduct, nor has she indicated that she would consider performing same-sex marriages.
(G) whether there has been prior disciplinary action concerning the judge, and
if so, its remoteness and relevance to the present proceeding
There have been no prior disciplinary actions concerning Judge Neely.
31
(H) whether the judge complied with prior discipline or requested and complied
with a formal ethics advisory opinion
Judge Neely requested a formal ethics advisory opinion, but only after she had
engaged in the objectionable conduct.
(I) whether the judge cooperated fully and honestly with the Commission in the
proceeding
Judge Neely cooperated fully and honestly with the Commission in the
proceeding.
[¶74] Weighing these factors, we find that Judge Neely’s misconduct warrants a public
censure. We further find that Judge Neely must perform her judicial functions, including
performing marriages, with impartiality. She must either commit to performing
marriages regardless of the couple’s sexual orientation, or cease performing all marriage
ceremonies. This does not mean, as the dissent suggests, that no judge can now turn
down any request to perform a marriage. What it means is that no judge can turn down a
request to perform a marriage for reasons that undermine the integrity of the judiciary by
demonstrating a lack of independence and impartiality. This is no different than allowing
parties to exercise the right to peremptory challenges of jurors for any reason, while
prohibiting them from challenging jurors on the basis of race or gender. See Beartusk v.
State, 6 P.3d 138, 142 (Wyo. 2000); (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct.
1712, 90 L.Ed.2d 69 (1986). Depending on her choice, it will be up to the circuit court
judge’s discretion to determine whether she will continue as a part-time circuit court
magistrate. A part-time circuit court magistrate’s position is unique. Unlike a full-time
circuit court magistrate or a circuit court judge, the functions of a part-time circuit court
magistrate’s job depend upon the particular needs of the circuit court judge appointing
the magistrate. We therefore defer to the circuit court judge who appointed Judge Neely
to determine whether she can continue to serve the essential functions of that position.
[¶75] We decline to remove Judge Neely from her position as a municipal court judge;
such a punishment would “unnecessarily circumscribe protected expression,” and we are
mindful of our goal to narrowly tailor the remedy.
CONCLUSION
[¶76] We conclude that Judge Ruth Neely shall receive a public censure; Judge Neely
shall either perform no marriage ceremonies or she shall perform marriage ceremonies
regardless of the couple’s sexual orientation; and each party will bear its own fees and
costs.
32
KAUTZ, Justice, dissenting, in which, DAVIS, Justice, joins.
[¶77] I must respectfully, but vigorously, dissent.
[¶78] This case is of the utmost importance to the State of Wyoming. It is a case
confronting new and challenging issues, where the parts of the legal landscape recently
changed dramatically and rapidly.16 Contrary to the position asserted by the majority
opinion, this case is about religious beliefs and same sex marriage. The issues considered
here determine whether there is a religious test for who may serve as a judge in
Wyoming. They consider whether a judge may be precluded from one of the functions of
office not for her actions, but for her statements about her religious views. The issues
determine whether there is room in Wyoming for judges with various religious beliefs.
The issues here decide whether Wyoming’s constitutional provisions about freedom of
religion and equality of every person can coexist. And, this case determines whether
there are job requirements on judges beyond what the legislature has specified.
Judge Neely’s Background
[¶79] The majority opinion summarizes facts from the record. However, in addition to
the facts presented by the majority, some additional facts are important to this decision.
[¶80] Prior to this case, Judge Neely has never been accused of prejudice or bias, and
has never had a complaint brought against her either before the Commission or the
Pinedale town council. Judge Neely has an outstanding record and reputation, being
recognized for her fairness and willingness to serve the public. The current Mayor of
Pinedale, Bob Jones, who has known Judge Neely for over ten years, states that “she has
a sterling reputation in the community as a person of unswerving character and as an
honest, careful, and fair judge.” After observing her on the bench, Mayor Jones said he
“cannot imagine a situation in which she would treat unfairly anyone who appears before
her.” Former mayor, Miriam Carlson, who also appointed Judge Neely and observed her
both while mayor and later while serving on the town council, states “based on my
experience watching her operate as a municipal judge, she has always been fair and
impartial. In fact, I don’t think you could find a fairer person to be a judge.”
[¶81] Pinedale town attorney, Ralph E. Wood, has observed Judge Neely during his
entire tenure as town attorney – seventeen years. Based on his experience he describes
Judge Neely as “a dedicated public servant and an unselfish and generous member of the
16
No other state court has decided this issue. The Washington Commission on Judicial Conduct decided
a case consistent with the majority opinion, and advisory committees in Arizona, Nebraska, Wisconsin,
Pennsylvania, and Ohio have given advisory opinions. None of those states have the same religious
freedom provisions found in the Wyoming Constitution. As can be seen with the Wyoming
Commission’s decision on Rule 1.1, Commission recommendations may or may not be correct, and are
not precedent.
33
community more generally.” He unequivocally states that “in my experience, every party
who appears before Ruth gets a fair shake, and she has never exhibited even the slightest
hint of bias, prejudice or partiality toward anyone.” Under oath, Mr. Wood states “based
on my experience, Ruth’s religious belief regarding marriage and her inability to officiate
at same-sex wedding ceremonies does not, and will not, affect in any way her impartiality
as a judge.”
[¶82] Judge Neely serves on the steering committee of the Sublette County Treatment
Court. The coordinator of that agency, Kathryn Anderson, has known Judge Neely since
2006. Ms. Anderson is married to her same sex partner, Ms. Stevens. She is fully aware
of Judge Neely’s views on same sex marriage, yet describes Judge Neely as a
“conscientious, fair, and impartial person.” Ms. Anderson states, “I have no doubt that
she will continue to treat all individuals respectfully and fairly inside and outside her
courtroom, regardless of their sexual orientation. Accordingly, I believe it would be
obscene and offensive to discipline Judge Neely for her statement . . . about her religious
beliefs regarding marriage.”
What Judge Neely Said and Did
[¶83] On December 5, 2014, Ned Donovan, a reporter from the Pinedale Roundup,
called Judge Neely, but she was unable to answer the call. When she called him back,
Mr. Donovan identified himself as a reporter and “asked if [she] was excited to be able to
start performing same-sex marriages.” Judge Neely responded that because of her
religious beliefs she would not be able to perform same sex marriages. However, she
affirmed that others could and would perform same sex marriages. Mr. Donovan wrote
an article about the conversation, concluding “Neely, however, was clear that this does
not stop any same sex couple in Pinedale from getting married in the town.” Judge Neely
added that she had never been asked to perform a same sex marriage.
[¶84] About twenty minutes after that conversation, Judge Neely called Mr. Donovan
back and asked that he substitute her earlier statements with the following: “When law
and religion conflict, choices have to be made. I have not yet been asked to perform a
same-sex marriage.” Mr. Donovan called Judge Neely back a few hours later and offered
to not publish a story if Judge Neely would state a willingness to perform same-sex
marriages. Judge Neely declined, and on December 9, 2014, a local newspaper published
an article written by Mr. Donovan which included Judge Neely’s statements from both
conversations.
[¶85] No one ever asked Judge Neely to perform a same sex marriage, and Judge Neely
never refused such a request.
[¶86] Under oath, Judge Neely said “if I ever were to receive a request to perform a
same-sex marriage, which has never happened, I would ensure that the couple received
34
the services that they requested by very kindly giving them the names and phone numbers
of other magistrates who could perform their wedding.” Further, also under oath, Judge
Neely stated that if any case before her “would ever require me to recognize or afford
rights based on a same-sex marriage . . . I would unquestionably recognize that marriage
and afford the litigant all the rights that flow from it. . . . I have never disputed the
legality of same-sex marriage.”
[¶87] The record has no indication that any same sex couple has been denied or delayed
marriage in Pinedale. Mr. Wood, who is able to perform marriages as a district court
commissioner and as a circuit court magistrate, states “there is no shortage of public
officials in Pinedale or Sublette County willing to officiate at same-sex wedding
ceremonies.” He indicated that he is willing to perform such marriages and has done so.
DISCUSSION
[¶88] Accusations that a judge violated the Code of Judicial Conduct are akin to
criminal charges, and the most serious incriminations that can be leveled at a judge.
Analysis of whether a judge violated a specific rule in the Code should be exact, just as it
is with criminal charges. The public can be confident in its judiciary only if the Code is
accurately applied to every judge, without watering down the requirements therein, but
also without overreaching beyond the specific language in the rules.
1. Did Judge Neely violate Rule 1.1 of the Wyoming Code of Judicial
Conduct?
[¶89] The majority opinion concludes that the record does not indicate that Judge Neely
violated Rule 1.1. I concur.
[¶90] Before specifically addressing the other Rules the majority finds Judge Neely
violated, it is necessary to analyze exactly what “the law” requires of Judge Neely and
other Wyoming judges with respect to officiating at marriages.
[¶91] The majority opinion asserts that Judge Neely failed or refused to follow the law
as established in Guzzo v. Mead, No. 14-CV-SWS, 2014 WL 5317797 (D. Wyo. Oct. 17,
2014). Guzzo is clear about the law it establishes. It states:
Defendants (essentially State and County Officials) are
hereby enjoined from enforcing or applying Wyoming Statute
§ 20-1-101, or any other state law, policy, or practice, as a
basis to deny marriage to same-sex couples or to deny
recognition of otherwise valid same-sex marriages entered
into elsewhere. Marriage licenses may not be denied on the
basis that the applicants are a same-sex couple.
35
Id. at 8.
[¶92] Guzzo established that Wyoming officials (which would include judges) may not
deny marriage to same sex couples on the basis of any state law, policy or practice. It did
not establish any law beyond this specific prohibition. It is clear from the undisputed
facts that Judge Neely 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. Guzzo did not involve statements about religious beliefs in any manner. It did
not involve any issue of who must perform same sex marriages. Guzzo certainly did not
establish any requirement that any particular judge or level of judges in Wyoming must
perform every marriage when requested. Similarly, it did not establish any right of same
sex couples to insist that they be married by a particular judge.
[¶93] In addition to Guzzo, the majority finds applicable law in the U.S. Supreme
Court’s decision in Obergefell, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). That case also
is clear about the law it establishes (as it applies to the issues here). The Court stated
“[t]he Constitution, however, does not permit the State to bar same-sex couples from
marriage on the same terms as accorded to couples of the opposite sex.” Id. at 2607.
Obergefell did not establish any law about who must perform those marriages, but only
said they must be available on the same terms as accorded to other couples. Because
other couples in Wyoming cannot insist that a particular judge or magistrate perform their
wedding ceremony, it follows that same sex couples also have no right to do so. In
Obergefell the U.S. Supreme Court made some other clear statements that apply to this
case. It stated “[m]any who deem same-sex marriage to be wrong reach that conclusion
based on decent and honorable religious or philosophical premises, and neither they nor
their beliefs are disparaged here.” Id. at 2602. It added:
Finally, it must be emphasized that religions, and those who
adhere to religious doctrines, may continue to advocate with
utmost, sincere conviction that, by divine precepts, same-sex
marriage should not be condoned. The First Amendment
ensures that religious organizations and persons are given
proper protection as they seek to teach the principles that are
so fulfilling and so central to their lives and faiths, and to
their own deep aspirations to continue the family structure
they have long revered.
Id. at 2607.
[¶94] The majority’s decision implies that the law requires Judge Neely to perform
weddings, and that Judge Neely did not “follow” the law when she made the reported
36
statements. Indeed, a key element in the majority opinion is an assumption that to follow
the law Judge Neely was required to perform all marriages, or at least all same sex
marriages, when requested. Neither Guzzo nor Obergefell created such a requirement.
Wyoming law does not contain such a requirement. Wyo. Stat. Ann. § 20-1-106(a)
(LexisNexis 2015) governs who may perform marriages in Wyoming. It says:
Every district or circuit court judge, district court
Commissioner, supreme court justice, magistrate and every
licensed or ordained minister of the gospel, bishop, priest or
rabbi, or other qualified person acting in accordance with
traditions or rites for the solemnization of marriage of any
religion, denomination or religious society, may perform the
ceremony of marriage in this state.
[¶95] This statute indicates that many judges and religious officials may perform
weddings, but it does not give that authority to municipal judges. Further, this statute
states that certain judges and other individuals may perform the marriage ceremony, but
it does not require any judge to do so. Nothing in any other statute or rule requires any
particular judge or individual to perform a marriage ceremony.
[¶96] It cannot be argued that Judge Neely had an implied duty to perform marriages if
asked. If there is an implied duty for circuit judges or circuit court magistrates to perform
all weddings when requested, then there likewise is a duty for district court judges,
Supreme Court justices, ministers, bishops, priests, rabbis and others. Of course, there
simply is no such duty based on the plain language of § 20-1-106(a). The legislature, not
this Court, wrote § 20-1-106(a) and determines who can perform marriages and whether
any particular class of officiant is required to do so. It is not appropriate for this Court to
attempt to re-write this statute. Horning v. Penrose Plumbing & Heating, Inc., 2014 WY
133, ¶ 18, 336 P.3d 151, 155 (Wyo. 2014) (“We are not at liberty to rewrite a statute
under the guise of statutory interpretation or impose a meaning beyond its unambiguous
language.”).
[¶97] Further, nothing in Wyoming law or the record supports any express or implied
requirement that if a judge decides to perform any weddings, he or she must perform
every wedding. The record contains evidence that magistrates and judges decline to
perform legal marriages for a variety of reasons. Magistrates who perform some
marriages decline to perform others because they have family commitments, have other
things to do, prefer to watch a football game, or prefer to perform weddings only for
friends. Wyoming judges may or may not perform weddings without regard to the reason
for their decision.
37
[¶98] Simply put, the law does not require any Wyoming judge, including part-time
magistrate Neely, to perform any marriage ceremony.17 The applicable law only requires
that state officials may not “deny marriage to same-sex couples.”
[¶99] The evidence does not indicate that Judge Neely ever denied a same sex couple
marriage. It does not indicate that Judge Neely ever said she would deny marriage to a
same sex couple if asked. To the contrary, she clearly stated that she recognized their
right to be married. Judge Neely did not hinder or delay any same sex couple seeking to
be married, and she did not indicate any intent to do so. There simply is no evidence in
the record indicating that Judge Neely failed to comply with the law or said she would
not follow the law.
2. Did Judge Neely violate Rule 1.2 of the Wyoming Code of Judicial
Conduct?
[¶100] Rule 1.2 of the Wyoming Code of Judicial Conduct states that “[a] judge shall act
at all times in a manner that promotes public confidence in the independence, integrity
and impartiality of the judiciary, and shall avoid impropriety and the appearance of
impropriety.” The Code defines “impartiality” as “the absence of bias or prejudice in
favor of, or against, particular parties or classes of parties. Comment [5] to this rule
states that “the test for appearance of impropriety is whether the conduct would create in
reasonable minds a perception that the judge violated this Code or engaged in other
conduct that reflects adversely on the judge’s honesty, impartiality, temperament or
fitness to serve as a judge.”
[¶101] The majority opinion accepts the Commission’s recommendation on Rule 1.2.
The Commission explained the basis for its conclusion that Judge Neely violated Rule 1.2
by stating:
Here, Judge Neely announced she would not follow the law
because of her religious convictions regarding same sex
marriage. By announcing her position against same sex
marriage and her decision not to perform said marriages, she
has given the impression to the public that judges, sworn to
uphold the law, may refuse to follow the law of the land. She
has also suggested by her statements that other citizens may
17
Sound policy reasons support magistrates having discretion in exercising their marriage-celebrant
authority. They are not paid by the state for performing marriages, but instead must negotiate their own
fee with the participants. Magistrates are sometimes appointed to perform just a particular wedding – to
act for their own private purposes. Unlike other functions of a magistrate, they personally participate in
celebrating a private event. Considering these factors, it makes sense that the legislature found it
appropriate to authorize many levels of judges to perform weddings, while giving each judge the
discretion to decide for or against participating in any specific wedding.
38
follow her lead. A judge announcing her decision to pick and
choose the law she wishes to follow undermines her position
and our system of justice.
[¶102] The majority’s position that Judge Neely violated Rule 1.2 is based on the
mistaken conclusion that Judge Neely refused “to follow the law of the land.” As
discussed above, the undisputed evidence shows that Judge Neely made no such refusal.
She did not state that she would deny marriage to same sex couples, but rather said she
would assist such couples in finding someone to perform their civil marriage ceremony.
The law does not require Judge Neely personally to perform every marriage. There is no
clear and convincing evidence in the record that she made a decision to “pick and choose
the law she wishes to follow” or that she would “refuse to follow the law of the land.” As
discussed above, the record is devoid of evidence that Judge Neely refused to follow any
law. Nothing about what Judge Neely said remotely indicates that she will “pick and
choose the law she wishes to follow.”
[¶103] The majority’s conclusion on Rule 1.2 is an overreach, just as the Commission’s
position on Rule 1.1 was. The standards in Rule 1.2 are vague, and require appropriate
caution and reasonableness from the Court when applying them. Here the majority
opinion goes “too far” in attempting to find appearances of impropriety or lack of
independence. It concludes that Judge Neely’s statements erode public confidence in the
judiciary without any evidentiary or logical support for that conclusion.
[¶104] To maintain public confidence in the judiciary, it is necessary to carefully apply
vague rules like these. On the one hand, application of the standards “must be
appropriately demanding to the end that justice is facilitated in every possible way. At
the same time the standards must ensure that the judges are not unnecessarily separated
from the communities they serve in straitjackets of judicial isolation.” Robert B. McKay,
The Judiciary and Nonjudicial Activities, 35 Law and Contemporary Problems L.J. 9
(1970). When the rule uses vague standards, such as those in Rule 1.2, “we must fear not
only unreasonable discipline, but also discipline that produces an undesirable in
terrorem effect on judges’ moral and social lives.” Steven Lubet, Judicial Impropriety:
Love, Friendship, Free Speech, and Other Intemperate Conduct, 1986 Ariz. L.J. 379,
399. The majority opinion does just that, by sending messages to both the public and
judges that (1) every Wyoming judge who is willing to perform any marriage must
perform same sex marriages when requested or risk being found to have violated the
WCJC, and (2) no person holding a sincere religious belief opposing same sex marriage
may be a Wyoming judge who performs marriages.
[¶105] Rule 1.2 requires Judge Neely to act “in a manner that promotes confidence in the
independence, integrity and impartiality of the Judiciary.” It further requires her to
“avoid impropriety and the appearance of impropriety.” Whether Judge Neely violated
this part of Rule 1.2 hinges on the perceptions of a reasonable member of the public, who
39
must determine whether Judge Neely’s statements create an appearance of impropriety or
undermine the public’s perception of her impartiality when deciding cases. The majority
opinion appropriately notes Comment [5] to this rule which specifies that “the test for
appearance of impropriety is whether the conduct would create in reasonable minds a
perception that the judge violated this Code or engaged in other conduct that reflects
adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a
judge.” Then, the majority concludes that clear and convincing evidence in the record
would so persuade a reasonable person. The sole evidence the majority opinion uses to
support its conclusion is “her stated refusal to conduct marriages for homosexuals.”
[¶106] Although the majority opinion claims otherwise, it applies its own, and the
Commission’s, subjective test in concluding that Judge Neely violated Rule 1.2. This
correct test is an objective one, not a subjective one. Arthur Garwin, et al., Annotated
Model Code of Judicial Conduct, 61 (2d ed. 2011).
[¶107] The test for determining what constitutes “the appearance of impropriety” and
what “promotes (or denigrates) confidence in the . . . impartiality of the judiciary”
necessarily must be an objective test based on what a rational person would think
knowing all of the circumstances. The use of any lesser standard leads to absurd results.
For example, the test cannot be whether some individual subjectively might be offended
by what he or she heard or saw. Given the almost limitless capacity for people to take
offense or feel “unwelcome,” this would put every judge constantly at risk of being
brought before the Commission to face ethics charges. Similarly, the test cannot be based
on what someone would think knowing only some of the circumstances. A rational
person is not rational if he or she draws conclusions based on inadequate facts. Unhappy
litigants always would be able to base claims of judicial impropriety or favoritism on just
the portion of the facts that supported their side. Such subjective tests would seriously
impair a judge’s ability to make independent decisions based on the facts and the law.
The majority opinion is based on such a subjective analysis. It is based on a subjective
thought that circuit court magistrates have a duty to perform marriages when requested
(which they do not) and on a subjective thought that someone hearing the misleading
presentation of Judge Neely’s request to the advisory commission would question her
impartiality.
[¶108] The “appearance of impropriety” and “promotes confidence in the … impartiality
of the judiciary” language in this rule is analogous to the language found in Rule 2.11
which governs disqualification of judges. Cases decided under both rules, and under
corresponding federal statutes, indicate that a reasonable person would look at the
particular facts of a case, and the totality of the circumstances when determining whether
a judge’s actions adversely reflect on the judge’s impartiality. For example, Nebraska
examines whether “a reasonable person who knew the circumstances of the case would
question the judge’s impartiality under an objective standard of reasonableness.” Tierney
v. Four H Land Co. Ltd. P’ship, 798 N.W.2d 586, 592 (Neb. 2011) (emphasis added).
40
Alaska applies this principle by first viewing “all of the facts” in the judge’s favor, and
then determining whether “the totality of the circumstances surrounding (the judge’s)
decision . . . create(d) an unmistakable appearance that something improper was afoot.”
In re Johnstone, 2 P.3d 1226, 1236 (Alaska 2000). The 7th Circuit said that “the test for
an appearance of partiality is, . . ., whether an objective, disinterested observer fully
informed of the facts underlying the grounds on which recusal was sought would
entertain a significant doubt that justice would be done in the case.” Pepsico, Inc. v.
McMillen, 764 F.2d 458, 460 (7th Cir. 1985) (emphasis added). Mississippi held that
“the test for impropriety is whether a judge’s impartiality might be questioned by a
reasonable person knowing all the circumstances.” Mississippi Comm’n on Judicial
Performance v. Boland, 975 So.2d 882, 895 (Miss. 2008) (emphasis added). The
Pennsylvania Supreme Court capably expounded on the requirement that the reasonable
person standard be based on a reasonable person with knowledge of all the facts and
circumstances, and quoted former U.S. Chief Justice Rhenquist. It said:
We cannot agree, however, with the suggestion that
the appearance be gauged as to a misinformed or uninformed
hypothetical reasonable person. The absurdity of such a
standard was ably and cogently exposed by, then, Justice
Rehnquist as follows:
It is, of course, possible to interpret the phrase
“appearance of impropriety” much more broadly and
to suggest that it embraces a situation where the facts
are only partially known, and where this partial
version of the facts might rouse legitimate suspicion.
Suppose, for example, that it was known only that
Judge Haynsworth had some stock in the litigant,
without it being known how miniscule his interest
was? But this interpretation would cut so broadly as to
prevent a judge named Jones from presiding at the
trial of a defendant named Jones, even though they
were totally unrelated, since it would be possible from
simply reading the docket entries to conclude that they
were related to one another. It will not do.
Rehnquist, supra, 28 The Record at 701. (Emphasis added).
Indeed, if appearances were gauged without reference to the
full and true facts, then false appearances of impropriety
could be manufactured with ease by anyone with personal or
political animus toward a judge. If such were the case, then
the hope of an independent judiciary would have been less
41
than an evanescent dream, it would have been cruel charade
and a dangerous snare for an ethical and unsuspecting
judiciary.
Fortunately, our case law is squarely to the contrary. In In re
Greenberg (II), 457 Pa. 33, 318 A.2d 740 (1974), our
Supreme Court stated succinctly, “it is our duty to consider
the totality of the circumstances when determining questions
pertaining to professional and judicial discipline.” 318 A.2d
at 741. (Emphasis added).
Numerous cases would undoubtedly have been decided
differently if the totality of the circumstances were not
considered, and instead the Board and our Supreme Court
applied a reasonable mis informed or un informed person
standard. A judge's acceptance of a gift from a union leader
might create a distinct appearance of impropriety, if our
hypothetical reasonable un informed person did not know of
their long familial association, or that the judge had
systematically recused himself from any case known to
involve a member of the gift donor's union. See Matter of
Braig, supra. Likewise, an appearance of impropriety might
certainly appear if one had neither the benefit of the
respondent's version of disputed facts, nor knowledge of the
respondent's excellent reputation as an ethical individual and
respected jurist. See Matter of Sylvester, supra. Moreover, an
appearance of impropriety might certainly appear in hindsight
based upon facts not known at the time of a judge's
challenged conduct, or based upon only one version of
disputed facts, which would not appear if the limits of the
judge's information at the time of the conduct and the other
side of the story were considered. See Matter of Johnson,
supra.
In re Larsen, 532 Pa. 326, 433-34, 616 A.2d 529, 583 (1992)
[¶109] A reasonable person with knowledge of all the facts would know that Judge
Neely was never asked to perform a same sex marriage, and had never refused such a
request. He or she would know that all who work with her have expressed unreserved
confidence that she will be absolutely fair and impartial to all litigants, whatever their
sexual preference. Such a reasonable person would know that Wyoming law does not
require Judge Neely to perform any marriage. He or she would know that the law
prohibits judges and other public officials in Wyoming from denying marriage to same
42
sex couples, and no same sex couple has been denied marriage by or because of Judge
Neely’s statements. Further, a reasonable person would know that there is no indication
that any same sex couple is likely to be denied or delayed in obtaining a civil marriage
because of Judge Neely’s statements or religious beliefs. A reasonable person would
know that if asked to perform such a marriage, Judge Neely would assist in finding an
appropriate officiant, and that there is no shortage of such officiants. A reasonable
person, apprised of these facts, could not conclude that Judge Neely’s statements gave the
appearance of impropriety nor that they eroded public confidence in the impartiality of
the judiciary. To the contrary, a reasonable mind would conclude, as Ms. Anderson did,
“it would be obscene and offensive to discipline Judge Neely for her statement . . . about
her religious beliefs regarding marriage.”
[¶110] Rule 1.2 presents an important requirement that judges act in a manner which
promotes public confidence in the judiciary. The record in this case indicates that Judge
Neely did just that – she promoted confidence in the integrity and impartiality of the
judiciary. Based on Judge Neely’s statements, the public in Wyoming can be confident
that Judge Neely does not intend to “pick and choose” which law she wants to follow,
but, rather, she will comply with the law about same sex marriage. She would not work
against or frustrate a requested same-sex marriage. Based on Judge Neely’s statements,
the public in Wyoming can be confident that she respects and treats every person before
her court fairly, and is not biased.
[¶111] The record does not contain clear and convincing evidence that Judge Neely
violated Rule 1.2.
3. Did Judge Neely violate Rule 2.2 of the Wyoming Code of Judicial
Conduct?
[¶112] The majority opinion concludes that Judge Neely also violated Rule 2.2. That
rule states “[a] judge shall uphold and apply the law, and shall perform all duties of
judicial office fairly and impartially.” The majority believes Judge Neely expressed
intent to act unfairly because it finds “she is willing to do that (perform marriages) for
one class of people (opposite-sex couples), but not for another (same-sex couples).”
However, the record does not show that Judge Neely would perform all marriages for any
class of people.
[¶113] The majority position ignores the plain language of this rule. The rule, by its
terms, applies only to actions, not to statements made outside the context of a case or an
actual request. The words “uphold,” “apply” and “perform” all relate to action or
deliberate inaction by a judge. They simply cannot apply to a judge’s statement about
how her religious views would come into play in the event at some unknown, future time,
some unknown same sex couple insisted that Judge Neely, rather than someone else,
perform their marriage. Although the majority claims that this “action against Judge
43
Neely is a response to her deeds, not her faith,” the opposite is true. Judge Neely took no
action, and was never involved in a “deed” which denied anyone a marriage.
[¶114] Furthermore, the rule requires judges to perform “duties” fairly and impartially.
As discussed above, no judge in Wyoming has a duty to perform any particular marriage.
Because no couple seeking marriage has a right in Wyoming to insist that a particular
judge perform the ceremony, it is not “unfair” or “partial” for Judge Neely to arrange for
some other judge to officiate for a same sex couple. Using the majority logic about this
rule it would be a violation of Rule 2.2 fairness and impartiality for any judge to decline
to perform a wedding if they would perform a wedding for anyone else. The majority
position creates a requirement that does not exist in Wyoming—that judges who perform
some marriages must perform all marriages.18
[¶115] If the law, or Judge Neely’s job description, required her to perform every
marriage when requested, and if a same sex couple actually demanded that she perform
their marriage ceremony, and if Judge Neely then denied them a civil marriage ceremony,
then she may have violated Rule 2.2. However, none of those facts exist here.
[¶116] Guzzo established a “duty” for state officials in the negative sense – they may not
deny marriage to same sex couples. Even if Judge Neely’s statements were seen as
actions subject to Rule 2.2, she did not indicate she would violate that duty or carry it out
unfairly with bias. Based on those statements, every couple requesting to be married
would receive a marriage, no matter what their gender or sexual preference. Because
there is no legal difference between marriage ceremonies conducted by one judge as
opposed to another, and because no law permits any couple to insist that a particular
judge or magistrate or clergy perform their marriage ceremony, Judge Neely’s statements
do not indicate any lack of fairness or impartiality. The record does not contain clear and
convincing evidence that Judge Neely violated Rule 2.2 by her statements.
4. Did Judge Neely violate Rule 2.3(B) of the Wyoming Code of Judicial
Conduct?
[¶117] Rule 2.3(A) states “a judge shall perform the duties of judicial office, including
administrative duties, without bias or prejudice.” The Commission did not find that
Judge Neely violated Rule 2.3(A), apparently recognizing that this rule applies to actions
as opposed to statements about what would occur in hypothetical circumstances. The
majority and the Commission, however, conclude that clear and convincing evidence
indicates Judge Neely violated Rule 2.3(B), which states:
18
The majority suggests that the results here are similar to the results in jury selection from Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), which held that jurors could not be
challenged solely on the basis of race or gender. There are many, many differences between the effect of
Batson and the effect of the majority opinion.
44
A judge shall not, in the performance of judicial duties, by
words or conduct manifest bias or prejudice, or engage in
harassment, including but not limited to bias, prejudice, or
harassment based upon race, sex, gender, religion, national
origin, ethnicity, disability, age, sexual orientation, marital
status, socioeconomic status, or political affiliation, and shall
not permit court staff, court officials, or others subject to the
Judge’s direction and control to do so.
[¶118] Analysis of whether Judge Neely’s statements violated Rule 2.3 requires accurate
definitions of the terms “bias” and “prejudice.” We have generally defined bias as “a
leaning of the mind or an inclination toward one person over another. “The ‘bias’ . . .
must be personal, and it must be such a condition of the mind which sways judgment and
renders the judge unable to exercise his functions impartially in a given case or which is
inconsistent with a state of mind fully open to the conviction which evidence might
produce.” Eaton v. State, 2008 WY 97, ¶ 78, 192 P.3d 36, 73 (Wyo. 2008); Brown v.
Avery, 850 P.2d 612, 616 (Wyo. 1993).
[¶119] W.R.C.P. 40.1(b)(2)(E) uses these same terms in defining when a judge is
disqualified from sitting on a case “for cause.”19 We defined bias and prejudice as used
in that rule as: “Prejudice involves a prejudgment or forming of an opinion without
sufficient knowledge or examination. Bias is a leaning of the mind or an inclination
toward one person over another. The ‘bias’ which is a ground for disqualification of a
judge must be personal.” TZ Land & Cattle Co. v. Condict, 795 P.2d 1204, 1211 (Wyo.
1990), quoting Cline v. Sawyer, 600 P.2d 725, 729 (Wyo.1979). To find bias or prejudice
resulting in disqualification of a judge, “[s]uch conditions must exist which reflect
prejudgment of the case by the judge or a leaning of his mind in favor of one party to the
extent that his decision in the matter is based on grounds other than the evidence placed
before him.” Id., quoting Pote v. State, 733 P.2d 1018, 1021 (Wyo. 1987).
[¶120] Using these definitions, Judge Neely would have manifested bias if her
statements demonstrated an inclination of her mind toward one person over another in
such a manner that sways her judgment and renders her unable to exercise her functions
impartially in a given case. She would have manifested prejudice if she engaged in
prejudgment or forming of an opinion without sufficient knowledge or examination.
[¶121] Judge Neely’s statements contain no indication of bias or prejudice under these
definitions. The statements are only an indication of her religious belief about marriage.
They do not demonstrate any inclination of Judge Neely’s mind for or against persons in
19
W.R.C.P. 40.1 recognizes that judges are human beings and may have personal biases and prejudices.
When a judge has a bias or prejudice, the rule provides a means for the judge to be recused from that case,
and assign the case to a different judge. The judge’s bias or prejudice, however, does not disqualify him
or her from being a judge altogether.
45
same sex relationships. To the contrary, Judge Neely said that she would assist such a
couple in finding an officiant, and that she would treat them the same as any other person
in any court proceeding. Nothing in her statements indicates a prejudgment or inclination
against persons in same sex relationships.
[¶122] A judge is guilty of expressing bias or prejudice by statements which denigrate
the human value or standing of a person based on the fact that they fit within a particular
class of persons. Comment [2] to Rule 2.3 gives examples: “epithets; slurs; demeaning
nicknames; negative stereotyping; attempted humor based upon stereotypes; threatening,
intimidating, or hostile acts; suggestions of connections between race, ethnicity, or
nationality and crime; and irrelevant references to personal characteristics.” Such
statements truly do “impair the fairness of the proceeding and bring the judiciary into
disrepute.” Comment [1] to Rule 2.3. However, Judge Neely’s statements did not
include any indication of such denigration. To the contrary, Judge Neely’s statements
and all the other evidence in the record indicate that Judge Neely does not and will not
engage in bias or prejudice in any judicial proceeding.
[¶123] The record does not contain clear and convincing evidence that Judge Neely
violated Rule 2.3(B).
[¶124] The Commission asserted that because Judge Neely’s religious beliefs oppose
same sex marriage, she necessarily is biased and prejudiced against persons who might be
in a same sex marriage or relationship. Likewise, the majority opinion states that “Judge
Neely’s refusal to perform same sex marriages exhibits bias and prejudice toward
homosexuals.” There simply is no logic supporting this position. Judge Neely’s
religious belief about who may be married has no relationship to her view of the worth of
any individual or class of individuals. The overwhelming evidence in the record
indicates that Judge Neely does not hold any bias or prejudice against any person or class
of persons.
[¶125] The majority opinion hinges on its conclusions that Judge Neely’s statements
would cause reasonable persons to question her impartiality, and would conclude she
exhibited bias and prejudice toward homosexuals. Those are not conclusions that would
be reached by a reasonable person apprised of the appropriate facts.
5. The Wyoming and U.S. Constitutions
[¶126] In addition to carefully analyzing the specific Rules in the WCJC that have been
applied to this case, it is appropriate to review relevant portions of the Wyoming and U.S.
Constitutions. Any construction and analysis of the Rules should be done in a manner
consistent with those Constitutional provisions.
46
[¶127] Wyoming has a rich foundation for and history of protecting both free speech,
equality before the law, and religious freedom. Article 1 of the Wyoming Constitution
enumerates individual rights that our state government must respect, including the
following:
§ 2. Equality of all. In their inherent right to life, liberty and
the pursuit of happiness, all members of the human race are
equal.
§ 3. Equal political rights. Since equality in the enjoyment
of natural and civil rights is only made sure through political
equality, the laws of this state affecting the political rights and
privileges of its citizens shall be without distinction of race,
color, sex, or any circumstance or condition whatsoever … .
§ 18. Religious liberty. The free exercise and enjoyment of
religious profession and worship without discrimination or
preference shall be forever guaranteed in this state, and no
person shall be rendered incompetent to hold any office of
trust or profit, or to serve as a witness or juror, because of his
opinion on any matter of religious belief whatever; but the
liberty of conscience hereby secured shall not be so construed
as to excuse acts of licentiousness or justify practices
inconsistent with the peace or safety of the state.
§ 20. Freedom of speech … . Every person may freely
speak, write and publish on all subjects, being responsible for
the abuse of that right; … .
[¶128] Other portions of the Wyoming Constitution also address civil and religious
freedom:
Preamble. We, the people of the State of Wyoming, grateful
to God for our civil, political and religious liberties, and
desiring to secure them to ourselves and perpetuate them to
our posterity, do ordain and establish this Constitution.
Ordinances. The following article [sections] shall be
irrevocable without the consent of the United States and the
people of this state:
Art. 21, § 25. Religious liberty. Perfect toleration of
religious sentiment shall be secured, and no inhabitant of this
47
state shall ever be molested in person or property on account
of his or her mode of religious worship.
[¶129] The U.S. Constitution includes well-known protections for equality and
individual freedoms:
Amendment 1. Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
Amendment 14, Section 1. No State shall make or enforce
any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal
protection of the laws.
[¶130] Each of these enumerations of individual rights is vitally important to us.
Together, they recognize the value of every person, and confirm that free individuals are
the essence of our society. If any of these individual rights is diminished, individual
value and freedom are diminished. If any of these individual rights is diminished, the
public’s confidence in the judiciary is at risk. Judges, along with every other person,
enjoy each of these constitutional rights.
[¶131] The Obergefell and Guzzo decisions are based on equality and equal protection.
The majority opinion is based on an assumption that to carry out Obergefell and Guzzo,
other individual rights, including religious liberty and freedom of speech, must be
curtailed. The majority opinion states that we must choose between public confidence in
the judiciary by implementing Obergefell and Guzzo, and recognizing constitutionally
guaranteed rights to free exercise of religion and speech. Analysis of these constitutional
principles, however, shows that Wyoming, the Equality State, can equally recognize each
of these individual rights. It is not appropriate, nor necessary, to diminish religious
liberty or free speech in Wyoming to accomplish protection of individual rights
connected with same sex marriage, or to assure the integrity of the judiciary.
A. Article 1, § 18 of the Wyoming Constitution.
[¶132] The Wyoming Constitution is particularly strong in its protection of religious
freedom. The Constitution’s preamble identifies religious liberty as a motivation for
establishing the Constitution. Article 21, § 25 of our Constitution reaffirms the right to
religious freedom, and includes that right with the most security, providing that it could
48
only be repealed with the consent of Congress. In addition, the primary guarantee of
religious liberty in Wyoming, Article 1, § 18, is almost unique among the states in its
strength. It is located in the Declaration of Rights section of the Constitution, which
requires that it be construed liberally to protect individual liberty. Vasquez v. State, 990
P.2d 476, 485 (Wyo. 1999) (quoting Robert B. Keiter and Tim Newcomb, The Wyoming
State Constitution, A Reference Guide 11-12 (1993)).
[¶133] Article 1, § 18 establishes several very specific, strong principles which are
applicable to this case. It begins by stating that “the free exercise and enjoyment of
religious profession” shall be “forever guaranteed in this state.” It guarantees that any
person can hold “any office of trust” regardless of “his opinion on any matter of religious
belief whatever.” Finally, this section restricts limitations on religious freedom in
Wyoming to very specific, narrow circumstances.
[¶134] Four aspects of this constitutional language are noteworthy. First, by
guaranteeing “the free exercise” of religion, this provision of the Wyoming Constitution
protects not just religious beliefs, but the exercise of those beliefs through action and
abstention. In re LePage, 18 P.3d 1177, 1181 (Wyo. 2001). The “exercise of religion”
includes “the performance of (or abstention from) physical acts.” Employment Div. v.
Smith, 494 U.S. 872, 877 (1990).
[¶135] Second, unlike the U.S. free exercise clause, which simply attempts to restrain
governmental action, Wyoming’s Constitution expressly grants affirmative rights to the
free exercise of religion. While the federal constitution restricts government from
prohibiting religious exercise, the Wyoming Constitution “forever guarantees” freedom
of religious exercise.
[¶136] Third, this statement in our Constitution goes far beyond the U.S. Constitution in
protecting service in public office. While Article VI of the U.S. Constitution bans
“religious test[s]” for public office, our Constitution prohibits any government action that
renders any person incompetent from holding “any office of trust” based on “any matter
of religious belief whatever.” (Emphasis added). In Wyoming, persons are protected
not just from the narrow test oaths often imposed when our country was founded, but
from any type of disqualification from office based on religion.
[¶137] Finally, our Constitution states that guarantees of religious freedom are limited
only in that they cannot justify “acts of licentiousness” or a threat to “the peace or safety
of the state.” This portion of Article 1, § 18 shows that the guarantee of free exercise of
religion in Wyoming is not limited to belief and expression, but includes actions or
abstention. Otherwise, there would have been no need to state that some actions are not
protected. Further, when this last statement in Article 1, § 18 specifies that certain
“permissible countervailing interests of the government” may “outweigh religious
liberty,” the possibility that other interests might also outweigh religious liberty is
49
foreclosed. See State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990) (construing
identical language).
[¶138] The history and proceedings of our state’s constitutional convention are “a
valuable aid in interpreting the scope of a provision of the state constitution.” Dworkin v.
L.F.P., Inc., 839 P.2d 903, 910 (Wyo. 1992). Before adopting the broad free exercise
provision we have in our Constitution, the Wyoming constitutional convention rejected
much weaker language, which limited protection of religious freedom to “matters of
religious sentiment, belief, and worship,” and which protected public officeholders solely
from being forced to meet “religious qualification[s].” Journal and Debates of the
Constitutional Convention of the State of Wyoming 168. Clearly, Article 1, § 18 provides
greater protection than what was included in the rejected language.
[¶139] The majority opinion finds that Article 1, § 18 does not apply here because, it
claims, its decision is not based in any manner on Judge Neely’s religious beliefs, but
instead on her unwillingness to do what the majority opinion perceives is her duty as a
magistrate. The majority opinion states “the action against Judge Neely is in response to
her deeds, not her faith.”
[¶140] The record is clear, however, that Judge Neely only made statements – nothing
more. Everything Judge Neely said is based solely and entirely on her sincerely held
religious belief. Her statement that if asked, she would decline personally to officiate at a
same sex marriage but would find someone else who would do so is exclusively an
expression of her opinion on a matter of religious belief. In spite of the claims to the
contrary, it is clear from the record that the majority opinion (and the Commission’s
recommendation) holds her “incompetent to hold … office” because of her expression of
her “opinion on … [a] matter of religious belief.” The office of circuit court magistrate
includes the authority to perform marriages. The result in this case holds Judge Neely
incompetent to hold that function of office unless she compromises her religious
convictions. The conclusions of the majority chip away at the heart of Article 1, § 18 of
the Wyoming Constitution.
[¶141] Further, the majority’s claim that findings against Judge Neely are based on her
inability to apply and follow the law and on her display of bias rather than on her
religious beliefs is not supported by the law or the record. The law does not require
Judge Neely to perform any particular wedding ceremony, and she has never denied or
hindered a same sex marriage in any way. If the law required Judge Neely, as a
magistrate, to personally perform every marriage when asked, even allowing for
scheduling difficulties, and if someone actually attempted to force her to personally
perform their marriage rather than having a different officiant, or if she refused to
perform same sex marriages because she held personal animosity or disrespect for the
parties, then the claims against Judge Neely might have substance. None of those facts
exist here.
50
[¶142] Article 1, § 18’s protection of the free exercise and enjoyment of religious
profession is very broad, but does not apply to “acts of licentiousness” or “practices
inconsistent with the peace or safety of the state.” The record is devoid of even any hint
that Judge Neely’s expressions constituted “acts of licentiousness” or were “inconsistent
with the peace or safety of the state.” Wyoming’s Constitution (and the U.S.
Constitution) guarantees the free exercise of religion, not just the freedom to “believe.” It
cannot seriously be argued that Judge Neely was free to believe what she wanted, but that
the state is permitted to prohibit her from acting consistently with that belief. Under our
Constitution the state may restrict her actions based on religious beliefs only when they
are “licentious” or “inconsistent with the peace or safety of the state.” Under the U.S.
Constitution, government can restrict religiously motivated action only where there is a
compelling state interest and the state utilizes the least restrictive means to support that
interest (as discussed below).
[¶143] The effect of the majority opinion is concerning for the people of Wyoming. It
likely results in a religious test for who may be a judge, at any level, in our state. There
is only a single statute granting judges and others the authority to perform marriages in
Wyoming. Apparently from that statutory authority the majority concludes that a circuit
court magistrate who is willing to perform any marriages must perform all same sex
marriages when requested. If such a duty exists for circuit court magistrates, it exists for
all other judges as well. To avoid ethics charges like these, judges then must pass a
religious test indicating that they have no religious beliefs that would prevent them from
performing same sex marriages, or be precluded from performing any marriages. The
record points out, and Obergefell confirms, that a significant portion of our country holds
sincere religious views against same sex marriage. The majority position likely would
exclude a significant portion of our citizens from the judiciary, without any compelling
reason to do so.
[¶144] In addition, the majority opinion is concerning for Wyoming in its treatment of
constitutional protections for the free exercise of religion. It finds justification to entirely
restrict Judge Neely’s “exercise” of her religious beliefs because the majority opinion
believes someone might question her independence or impartiality, although the evidence
does not support such a conclusion. This reduces the constitutional guarantee of a robust
principle – “free exercise” – to a minimal “free belief.”
B. Amendment I to U.S. Constitution.
[¶145] Free exercise of religion. Although the Wyoming Constitution includes stronger
freedom of religion language than the U.S. Constitution does, it is appropriate to consider
some principles developed under the First Amendment in the context of this case. The
U.S. Constitution essentially provides that no government may make or enforce a law
which prohibits the free exercise of religion.
51
[¶146] Both sides agree that this Court should apply the strict scrutiny standard when
considering the U.S. constitutional ramifications of the Commission’s recommendations
and findings. Strict scrutiny is used to determine whether a state’s actions which impinge
on constitutional rights such as free speech or free exercise of religion may stand, or
whether they prohibit the free exercise of religion. To pass strict scrutiny, a state or state
actor must “demonstrate a compelling interest and show that it has adopted the least
restrictive means of achieving that interest.” City of Boerne v. Flores, 521 U.S. 507, 534,
117 S. Ct. 2157, 2171, 138 L. Ed. 2d 624 (1997). Strict scrutiny is the “most demanding
test known to constitutional law.” Id.; Williams-Yulee v. Florida Bar, 135 S. Ct. 1656,
191 L. Ed. 2d 570 (2015); Rep. Party of Minn. v. White, 536 U.S. 765, 122 S. Ct. 2528,
153 L. Ed. 2d 694 (2002). The majority opinion clearly impinges on Judge Neely’s right
to free exercise of religion (and free speech). Consequently, because of the strict scrutiny
standard, the majority opinion’s ban of Judge Neely from performing any marriage is
constitutionally valid only if it is the “least restrictive means” of achieving a “compelling
state interest.” Thomas v. Review Board of Indiana Employment Security Division, 450
U.S. 707, 718, 101 S. Ct. 1425, 67 L. Ed. 2d 624 (1981); accord Washakie County School
District No. One v. Herschler, 606 P.2d 310, 333 (Wyo. 1980). One cannot make such a
finding here.
[¶147] The majority opinion finds that there is a compelling state interest in protecting
same-sex couples from the perception of bias and partiality, and in fostering public
confidence in the judiciary by requiring judges to perform all same sex marriages if they
perform any marriages. While the state does have a compelling interest in assuring that
judges follow the law, no law in Wyoming requires a particular magistrate to perform a
particular wedding. No law permits couples to insist that a particular judge or magistrate
(or religious official) perform a wedding for them. As discussed above, Judge Neely did
not fail or refuse to comply with any law. This is not a case like Miller v. Davis, 123 F.
Supp. 3d 924 (E.D. Ky. 2015), where the state specifically required a county clerk to
issue marriage licenses, nor is it like Moore v. Judicial Inquiry Commission, 891 So.2d
848 (Ala. 2004), where a judge was accused of refusing to comply with specific
requirements in a court order. This is not a case like those cited in the majority opinion
where police officers refused to follow instructions to protect abortion clinics or
gambling establishments. In those cases there was an absolute duty which the officers
refused to perform. That is not the case here. Absolutely nothing in the record indicates
that Judge Neely failed or refused to comply with the law. The Commission’s findings
and recommendations, therefore, are not supported by the state’s interest in insuring that
judges follow the law.
[¶148] The state also has an interest in assuring that judges do not give valid cause for
reasonable persons to question the judge’s impartiality. That interest is broad and
vaguely stated, and logically unrelated to the actual facts in this case. Strict scrutiny
requires us to “looked beyond broadly formulated interests justifying the general
52
applicability of government mandates and scrutinize[e] the asserted harm of granting
specific exemptions to particular religious claimants.” Gonzales v. O Centro Espirita
Beneficente Uniao do Vegetal, 546 U.S. 418, 430-31, 126 S. Ct. 1211, 163 L. Ed. 2d
1017 (2006). Here, there is no evidence in the record proving that the interest in
promoting public confidence in the judiciary is threatened by Judge Neely’s statements.
[¶149] Apparently some individuals might find it offensive that Judge Neely said she
would decline to personally perform a same-sex marriage and instead would refer them to
someone else. There is no compelling state interest in shielding individuals from taking
such an offense. A “bedrock principle underlying the First Amendment” is that “the
government may not prohibit the expression of an idea simply because society finds the
idea itself offensive.” Snyder v. Phelps, 562 U.S. 443, 458, 131 S. Ct. 1207, 179 L. Ed.
2d 172 (2011). “Government may neither compel affirmation of a repugnant belief, nor
penalize or discriminate against individuals or groups because they hold religious views
abhorrent to the authorities.” Sherbert v. Verner, 374 U.S. 398, 402, 83 S. Ct. 1790,
1793, 10 L. Ed. 2d 965 (1963).20
[¶150] The state has a compelling interest in assuring that every person is treated
equally and that judges do not display bias or prejudice. This interest comes into play
when a judge demonstrates actual bias or partiality. Nothing in the record indicates any
bias or prejudice on the part of Judge Neely, so the majority opinion cannot be supported
on the basis of this state interest. To assure that judges do not display bias or partiality,
our rules permit a judge to assign a particular case to another judge. That is just what
Judge Neely proposed to do. Her proposal to refer same sex marriages to another judge
cannot be a demonstration of bias, absent any obligation to personally perform such
wedding ceremonies.
[¶151] Even if Judge Neely violated a compelling state interest in providing same sex
marriages, to protect her constitutional rights the law requires the Commission to
recommend or the Court to find the least restrictive alternative to accomplish that interest.
If a less restrictive alternative would serve the government’s purpose, “the legislature
must use that alternative.” U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803,
813, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000). To make this showing, the government
must “prove” that no other approach will work, id at 816, 120 S. Ct. at 126, and must
“refute … alternative schemes suggested by the plaintiff.” Yellowbear v. Lampert, 741
F.3d 48, 62 (10th Cir. 2014). The record does not show that anyone has been denied same
sex marriage in Wyoming since Guzzo and it does show there are sufficient persons
available to perform same sex marriages in Judge Neely’s jurisdiction. The remedy of
20
In footnote 11 the majority suggests that if some other type of religious belief were involved or if some
other type of prospective married couple were involved there “would be little controversy regarding her
(Judge Neely’s) discipline.” Neither the hypothetical religion nor the hypothetical couple suggested by
the majority are appropriately analogized to this case, and the assumed conclusion is likely incorrect.
53
prohibiting her from performing any marriages is entirely unnecessary to see that the
dictates of Guzzo are carried out. The majority opinion claims that letting Judge Neely
“opt out” of same sex marriages would not work because it conflicts with the interests of
the state in having an impartial judiciary and could result in no judge who was willing to
perform same sex marriages. The evidence shows otherwise. Further, the availability of
marriage officiants is an issue for the legislature, not this Court nor the WCJCE.
[¶152] Similarly, if Judge Neely violated a compelling state interest in assuring the
appearance of impartiality, the state simply could require what Judge Neely already
stated her intention to do – find another judge to handle same sex marriages.
C. Free Speech.
[¶153] Both the Wyoming and the U.S. Constitution guarantee free speech. Just as with
freedom of religion, when a government action prohibits or punishes free expression,
strict scrutiny applies. In that event, the government must show that it narrowly tailored
a solution to serve a compelling state interest.
[¶154] Judges subject to disciplinary claims have full protection of the First Amendment.
Strict scrutiny is applied to a judge’s free speech claims in circumstances like this.
Republican Party of Minnesota v. White, 536 U.S. 765, 122 S. Ct. 2528, 153 L. Ed. 2d
694 (2002); Mississippi Commission on Judicial Performance v. Wilkerson, 876 So.2d
1013 (Miss. 2004); In re Sanders, 955 P.2d 369 (1998). “Applying a lesser standard of
scrutiny to such speech would threaten ‘the exercise of rights so vital to the maintenance
of democratic institutions.’” Williams-Yulee v. Florida Bar, 135 S. Ct. 1656, 1665, 191
L. Ed. 2d 570 (2015).
[¶155] The White case provides an appropriate analysis of a judge’s free speech claim in
a case like Judge Neely’s:
In Republican Party of Minnesota v. White, Justice Scalia,
writing for five members of the Court, held that [a Minnesota
rule of judicial ethics prohibiting judicial candidates from
“announcing” a view on any disputed legal or political issue
if the issue might come before a court] violates the First
Amendment. In order for the announce clause to survive
strict scrutiny, it must be narrowly tailored to serve a
compelling state interest. And, in order to be narrowly
tailored, it must not “unnecessarily circumscrib[e] protected
expression.” The Minnesota rule did not meet this rigorous
test. The announce clause was not narrowly tailored to
promote “impartiality,” in the sense of no bias for or against
any party to the proceeding becaue it did not restrict speech
54
for or against particular parties, but rather speech for or
against particular issues. If the state meant to promote
“impartiality” in the sense of no preconception for or against
a particular legal view, that is not a compelling state interest,
the Court said, because it is both ‘virtually impossible,” and
also not desirable, to find a judge who does not have
preconceptions about the law.
Ronald D. Rotunda, Constitutionalizing Judicial Ethics: Judicial Elections after
Republican Party of Minnesota v. White, Caperton, and Citizens United, 64 Ark. L.Rev.
1, 36 (2011).
[¶156] The principles identified in White apply here. The definition of impartiality in the
majority opinion leads not to true impartiality but to forced agreement with a particular
idea. White recognizes that the impartiality pursued by the majority opinion, seeking “no
preconception” against same sex marriage even on the basis of religious belief, is not a
compelling state interest. The state does have a compelling interest in assuring that
judges do not actually have bias against a particular party, but that is not the interest
involved in this case. Judge Neely never exhibited any bias against a particular party.
Furthermore, if she had any bias against a particular party, the most narrowly tailored
remedy would be to find another judge to perform the wedding—exactly what Judge
Neely proposed to do. Discipline against Judge Neely for her statements cannot
withstand strict scrutiny as outlined in White.
[¶157] The majority opinion asserts that this case is distinguishable from White because
Judge Neely did not only “announce” her position about same sex marriage, she said she
would be unable to perform those marriages and would assist in finding someone who
could. The majority opinion concludes that her statement goes beyond a statement and
constitutes action. It is obvious, however, that all Judge Neely did was “announce” her
position. Taking that position publicly is precisely what the majority opinion sanctions
her for.
[¶158] The majority opinion also claims that White is distinguishable because “the rules
she has violated are far more well established than the announce clause at issue in White.”
That certainly is not the case. Application of Rules 1.1, 1.2, 2.2 and 2.3 to situations like
this is not established at all.
[¶159] The strict scrutiny/compelling state interest analysis discussed above for Judge
Neely’s right to free exercise of religion applies equally to her right of free speech.
Although the state has compelling interests in assuring that judges follow the law and are
unbiased, the evidence here does not show that Judge Neely failed to do follow the law or
is biased. Interference with Judge Neely’s right of free speech is not justified by any
compelling state interest.
55
CONCLUSION
[¶160] There is no clear and convincing evidence that Judge Neely violated any of the
rules of the Wyoming Code of Judicial Conduct. Wyoming law does not require any
judge or magistrate to perform any particular marriage, and couples seeking to be married
have no right to insist on a particular official as the officiant of their wedding. Judge
Neely did not state she could “pick and choose” which law she wanted to follow, and her
statements do not encourage that.
[¶161] In our pluralistic society, the law should not be used to coerce ideological
conformity. Rather, on deeply contested moral issues, the law should “create a society in
which both sides can live their own values.” Douglas Laycock, Religious Liberty and the
Culture Wars, 2014 U. Ill. L.Rev. 839, 877 (2014). That is precisely how Wyoming has
approached the matter since its founding.
[¶162] The Obergefell decision affirms this approach for the issue of same sex marriage.
It emphasized that the constitutional problem arose not from the multiplicity of good faith
views about marriage, but from the enshrining of a single view into law which excluded
those who did not accept it as “outlaw[s]” and “outcast[s]”. Id., 135 S. Ct. at 2600, 2602.
Unfortunately, the majority opinion does just that for Judge Neely and others who share
her views. Caring, competent, respected, and impartial individuals like Judge Neely
should not be excluded from full participation in the judiciary. Judge Neely’s friends
who actually obtained a same sex marriage recognized this and observed that it is
“obscene” to impose discipline in this case.
[¶163] There is no cause for discipline in this case, nor for concern if Judge Neely is not
disciplined or precluded from performing marriages. Same sex couples have full access
to marriage, all persons before the courts can be certain of an unbiased and impartial
judiciary, and religious individuals can remain in public office even if they hold a
traditional religious view of marriage. Judicial positions are filled without either side
insisting on a religious test for who may serve. There is room enough in Wyoming for
both sides to live according to their respective views of sex, marriage and religion.
[¶164] I respectfully dissent, and would find that Judge Neely did not violate the
Wyoming Code of Judicial Conduct.
56