Faithful Christians Cannot Be Judges in Ohio

By Mat Staver & Keith Fournier Published on August 24, 2015

The headline you just read will be the outcome of a recent decision by the Supreme Court of Ohio — absent effective legal intervention. The court’s Board of Professional Conduct was responding to a request submitted by several lawyers and judges, including C. Allen McConnell, a municipal court Judge whose predicament we addressed in “The ‘Soft’ Beginning of the Post-Obergefell Persecution.”

Judge McConnell said that as a Christian, he could not officiate at same-sex weddings. The Board of Professional Conduct of the Ohio Supreme Court said he must. In other words: Christians, check your faith at the bench or you may not serve as a judge in the state of Ohio.

It is helpful to go through the board’s opinion because it reveals how they will treat complaints filed against judges in the future. If a judge is the subject of a complaint filed by a lawyer, fellow judge or member of the public, the board reviews the complaint. They will apply the strained analysis of this opinion in determining whether to sanction, suspend or remove the judge from the bench.

In Ohio, judges are elected by the people, at every level, municipal, circuit court, appeals court or state Supreme Court. In many other states they are appointed. Where they are appointed there are growing efforts to weed out Christians. This advisory opinion presents a new way of removing Christians from the bench after the people have elected them to office.

Christians Need Not Apply

In this seven-page opinion the Board claimed that there is a “self-evident principle that the personal, moral and religious beliefs of a judicial officer should never factor into the performance of any judicial duty.” In other words, Christians must check their faith at the bench if they serve as a judge in the state of Ohio.

The Christian faith is not like a hat which people can put on or take off upon entering or leaving a church building. It informs the entirety of one’s life. Christians do not believe what they believe about marriage solely because it is a “religious” position. They insist it is objectively true. There is a Natural Law which can be known by all men and women and is binding on all men and women. If civil law contradicts the natural law, it is not law at all. This includes the law concerning the nature of marriage.

Effectively, in this advisory opinion the Ohio Supreme Court has created a new form of “religious test” for judicial office. This is in direct violation of Article Six of the Constitution, which states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

This advisory opinion is directed against classical Christians, whether from the Catholic, Orthodox or Protestant traditions. The idea is to claim not that judges’ religious beliefs are wrong but that they’re irrelevant to what they do — and then to rig the rules so that they cannot remove themselves from officiating at same-sex marriages without being accused of violating their judicial office.

The Board’s Reasoning

In the beginning of its opinion the board invoked Obergefell v Hodges, noting that the “Supreme Court found the right to marry the person of one’s choice to be a fundamental right under the Fourteenth Amendment of the United States Constitution. The laws of several jurisdictions, including Ohio that restricted marriage to only opposite-sex couples were declared unconstitutional. ”

As we have written, the Supreme Court has no authority to redefine marriage. The Board of Professional Conduct compounds the error, using it to compel Christian judges to violate their conscience. The board quoted the oath judges make and claimed that it is “self-evident” that “the personal, moral, and religious beliefs of a judicial officer should never factor into the performance of any judicial duty. … A judge’s oath to support the constitutions of the United States and the State of Ohio requires the judge to recognize and adhere to binding court interpretations of the same.”

We certainly do not want judges legislating from the bench. We’ve seen what happens when they do in Roe v. Wade and now in Obergefell. The problem is that the board decided that since judges in Ohio may officiate at weddings they must perform same-sex marriages. Previously, judges had discretion as to whether they would even officiate at civil weddings.

Let’s look at how the board came to this conclusion. The Ohio Code of Judicial Conduct requires a judge to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary” and the board explains that “this requirement applies to all professional and personal conduct of a judge.”

Again, Judges should behave well. But the board declared without reasonable explanation, “Public confidence in the independence of the judiciary is undermined when a judge allows his or her beliefs concerning the societal or religious acceptance or validity of same-sex marriage to affect the performance of a judicial function or duty.”

There was a simple compromise the board could have recommended which would have protected the free exercise of religion for judges — allow them to opt out of performing marriages. As the board itself noted, judges in Ohio are authorized to perform marriages but not required to perform them. Whether they can or have to perform marriages is “a legal question” they noted was beyond the board’s authority to answer.

Though the board did not need to answer that question, they wanted to do so. They set it up as a straw man in order to enable them to insist that once a judge had performed a marriage, he or she could not refuse to perform a same sex marriage. It asserted that “A judge who publicly states or implies a personal objection to performing same-sex marriages and reacts by ceasing to perform all marriages acts contrary to the mandate to avoid impropriety and the appearance of impropriety.”

And they went further, insisting that a judge “may reasonably be perceived as having a personal bias or prejudice based on sexual orientation if he or she elects to perform opposite-sex marriages, but declines to perform same-sex marriages.” So judges who decline to perform these ceremonies are bigots too.

Resign or Compromise, Or Resist

If not corrected, this opinion will preclude faithful Christians from serving as judges in the Buckeye State and force those now serving either to resign or compromise. It must be opposed. But who in Ohio will oppose it?

John Kasich, the governor of Ohio, could have stood with Judge McConnell. That would have helped. He didn’t. When asked about the Obergefell opinion at the first debate for Republican candidates, he said “the court has ruled … and I said we’ll accept it.” Sadly, Judge McConnell recently said that because of this opinion, he will now officiate at civil marriages between same sex couples.

We hope there are other Christians serving in high political office and serving as judges in the Buckeye State who will not accept this opinion from the Board of Professional Conduct. Those in office should work to remove it. Those serving as judges should refuse to obey it. Both must work hard to keep the door open to Christians to serve as judges in Ohio — because if it works in Ohio, this technique is going to be used against Christians in many other states as well.

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