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Judge who said she wouldn't marry gays fights back against recommendation she be fired

Posted August 24

A judge who said she wouldn't marry gay people is fighting a recommendation that she be fired. (Deseret Photo)

The Wyoming Supreme Court heard arguments this week in a case against a judge who is fighting to keep her job after publicly stating that her Christian faith prevents her from performing same-sex marriage ceremonies.

The Wyoming Commission on Judicial Conduct and Ethics has recommended that Judge Ruth Neely be stripped of her role as municipal judge in Pinedale, Wyoming, and as circuit court magistrate in Sublette County, arguing that her refusal to marry gays and lesbians violates the judicial conduct code, The Associated Press reported.

Neely's case is only one among several involving public officials who wish to opt out of gay wedding ceremonies for religious reasons. But most of those have come in the wake of the U.S. Supreme Court's Obergefell v. Hodges ruling last year that legalized gay marriage.

Neely's dispute differs from the other legal battles. In the highly publicized case of Kentucky county clerk Kim Davis, she prohibited her deputies from issuing marriage licenses that featured her name and title. And in the case of a controversial North Carolina law, magistrates are permitted to opt-out of marriage, though that decision disallows those individuals from performing any marriages for six months. Unlike these cases, Neely is willing to refer gay couples to officials who would officiate their wedding.

Daniel Blomberg, an attorney with the Becket Fund for Religious Liberty — a public interest law firm that filed an amicus brief in support of Neely — believes a loss for Neely could "end up purging the Wyoming judiciary of good, competent judges."

How it began

Neely, who has served as a judge for the past 21 years, originally found herself in the commission's crosshairs after reportedly telling a reporter for the Pinedale Roundup in 2014 that she would not be able to perform same-sex marriage ceremonies due to her faith, according to The Casper Star Tribune.

"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," Neely reportedly said in reference to a judge's decision in 2014 to strike down the state's ban on same-sex nuptials. "When law and religion conflict, choices have to be made."

It was in January 2015 that the Wyoming Commission on Judicial Conduct and Ethics began investigating Neely under commission Rule 7(b), which allows the governing body to conduct an investigation on its own without a written complaint, so long as there is reliable evidence of alleged misconduct.

The commission later informed Neely in March 2015 that she had purportedly violated the judicial canon by publicly stating her refusal to marry gays and lesbians. According to her attorneys, she was then presented with an ultimatum: The commission wouldn't prosecute if she agreed to resign her positions.

After she refused, she was reportedly then asked to apologize and to agree to perform gay marriages — another request that Neely declined.

With an agreement not being reached, a commission recommendation dated Feb. 26, 2016, called for Neely to "be removed from her position as municipal court judge and circuit court magistrate."

'A black mark' on the judiciary

Neely's challenge to the recommendation prompted Wednesday's hearing before the state Supreme Court.

"This case presents significant First Amendment issues," James Campbell, an attorney with the Alliance Defending Freedom, which is representing Neely, told the court. "In 21 years on the bench, Judge Neely has never faced allegations that she's been unfair to anyone."

The commission, though, contends that the judicial conduct code precludes Neely from showing any bias in either word or action against people based on sexual orientation or other indicators. During the hearing, commission lawyer Patrick Dixon called her case "a black mark in the history" of the state's judiciary, The Associated Press reported.

But others, such as the Becket Fund, are coming out in support of Neely, pointing out that the judge has never turned a gay couple away and that she has been willing to refer any couples who might ask to someone else to perform same-sex ceremonies.

"Judge Neely isn’t required to perform any marriages, and she’s not even paid by the state to perform marriages," Blomberg told Deseret News. "This case is simply about whether the state can force someone to voluntarily and personally perform a ceremony that violates their faith."

The commission has noted, though, that Neely's primary role as circuit court magistrate is "to perform civil marriage ceremonies," according to a December 2015 case document.

However, Neely does not perform weddings in her municipal court position, despite the commission's attempts to also strip her of that role, as well.

A constitutional protection?

Blomberg, whose firm is not representing Neely, said the Wyoming state constitution has among the strongest protections for religious liberty in the country — provisions that he believes preclude the commission from seeking her removal.

In Neely's petition objecting to the commission's recommendation cited both Article 1, Section 18 and Article 21, Section 25 of the state's constitution in her defense, saying that a removal would "violate the general protection for religious exercise."

Article 1, Section 18 — titled "Religious Liberty" — says that "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."

There is a caveat, though, with the text continuing: "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."

Article 21, Section 25 enforces the "toleration of religious sentiment" and further protects the faithful against religious discrimination.

"The Commission is insisting on the most extreme punishment allowed under law — a lifetime ban from the judiciary, plus about $40,000 in fines," Blomberg said. "Accepting the Commission’s extreme arguments could end up purging the Wyoming judiciary of good, competent judges."

He went on to say that Neely has had a "sterling 20-year career" and that she is being unfairly targeted for "citing her faith in declining to do something that she’s neither required or even paid to do by the state."

The sticking point, according to Blomberg, is that judges like Neely with the power to perform marriages are not always required to actually do so. He said that they can decline for a variety or reasons: to avoid scheduling conflicts, to restrict performing ceremonies to only friends or family or for other reasons.

"The only reason Judge Neely is being prosecuted by the state is that she declined for religious reasons," Blomberg said. "That’s wrong, and it’s unconstitutional."

Neely's authority to act as a magistrate is now suspended, though she continues to serve as a judge in Pinedale. The Wyoming Supreme Court is expected to issue a written ruling in response to Neely's appeal of her case, NBC News reported.

Email: bhallowell@deseretnews.com Twitter: billyhallowell Facebook: facebook.com/billyhallowell

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