Joint Opinion 04-38/04-39

March 11, 2004

Please Note: Since the issuance of this opinion, certain legal issues relating to statutory and constitutional interpretation have been settled by the United States Supreme Court. See Obergefell v. Hodges, 135 S.Ct. 2584, 576 U.S. ___ (2015).

Digest:         (1) Whether a judge may ethically perform a same sex wedding ceremony in Massachusetts depends upon the law of the State of Massachusetts. (2) Whether a judge must accept a marriage license issued to a same sex couple depends on whether the law of the State of New York authorizes or permits the issuing authority to grant such licenses.

Rule:            22 NYCRR 100.2; 100.2(A),Opinion 92-102 (Vol. X).

Opinion:

         Two part-time town judges separately seek the opinion of the Committee concerning the performance of same-sex wedding ceremonies.

         In inquiry 04-38, the judge anticipates that couples who have a “marriage license in hand” issued by a clerk of some locality in New York will ask the judge to marry them. The judge raises a number of hypotheticals concerning his/her duties in such a situation. In inquiry 04-39 the judge has been asked to perform a same-sex marriage ceremony in Massachusetts and likewise asks whether it is ethically proper to do so.

         Whether it is ethical for a New York judge to officiate at a wedding in Massachusetts between a same-sex couple, is dependent upon the law of Massachusetts. The first legal question is whether a New York judge may officiate at a wedding ceremony in Massachusetts. The second legal question is whether a same-sex wedding ceremony is lawful in Massachusetts as of the date of the intended wedding; and whether this might depend on the State of residence of the people seeking to marry, or perhaps other considerations.

         It is not within the province of the Committee to answer these legal questions. Clearly, a judge is required to respect and comply with the law, and to avoid impropriety and the appearance of impropriety in all of the judge’s activities. 22 NYCRR 100.1; 100.2(A). If the judge acts in conformity with the governing law of the State of Massachusetts, there will be no violation of New York’s Rules Governing Judicial Conduct.

         As to the questions posed in 04-38 concerning marriage licenses, that, too, depends on the law. In this case that means the law of the State of New York and we are unaware of any New York statute or authoritative judicial decision authorizing or permitting local authorities to issue such licenses. Thus, we reiterate that a judge must be faithful to and comply with the law and refer the inquirer to Opinion 92-102 (Vol. X), which deals with a judge’s participation in a same-sex commitment ceremony.