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Judge Censured Because She Won’t Sanction Same-Sex Marriages

David Krayden Ottawa Bureau Chief

It stopped just short of removing Judge Ruth Neely from the bench in a 3-2 decision that critics see as a measure that undermines religious freedom.

Justice Kate Fox suggested that Neely is adversely affecting the integrity of the justice system and violating the code of judicial conduct, but that firing the judge would “unnecessarily circumscribe protected expression.”

Nonetheless, Fox gave Neely little room for expression.

“Judge Neely shall either perform no marriage ceremonies or she shall perform marriage ceremonies regardless of the couple’s sexual orientation,” Fox wrote.

Because Neely has not actually received a request to perform a same-sex marriage, Fox argued that her case did not rest on the validity of same-sex marriage nor the judge’s religious freedom.

“This case is also not about imposing a religious test on judges,” wrote Fox, in agreement with Justices E. James Burke and William Hill. “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.”

Neely’s case has similarities to legal action against a Kentucky clerk of court jailed briefly in 2015 after refusing marriage licenses to gay and lesbian couples. The case against clerk Kim Davis, a conservative Christian, sparked a national debate over the religious freedom of civil servants versus the civil rights of same-sex couples. Davis ultimately agreed to alter the licenses to remove her name and title.

But in Neely’s defence, the dissenting judges stated that it did not violate any judicial code because, “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,” Justice Keith Kautz declared in his joint dissenting statement with Justice Michael Davis.

Neely is a is a municipal judge in in the small town of Pinedale and a part-time circuit court magistrate in rural Sublette Count. Most of her time is spent presiding over marriages.

The Wyoming Commission on Judicial Conduct and Ethics first recommended Neely’s removal for violating the state’s code of judicial conduct. Neely objected on the basis of her constitutionally-guaranteed religious freedom.

Because of Neely’s status as a part-time magistrate appointed by a local circuit court judge,  the Supreme Court has dropped the judge’s fate in the hands of the circuit see if  Neely can “continue to serve the essential functions of that position.”

That circuit court judge has not yet commented on the case.

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