Earlier this month, the Wyoming Supreme Court handed down a 3-2 decision in the case of Judge Ruth Neely from Pinedale. Writing for the majority, Justice Kate Fox said, “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.”
In contrast, Justice Keith Kautz wrote for the minority, “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… There is no cause for discipline in this case… There is room enough in Wyoming for both sides to live according to their respective views of sex, marriage and religion.”
Where the Halves of the Court Agreed
Before we look at the differences of opinion, we should note where they agree.
For starters, the WSC rejected every punishment for Neely the Commission on Judicial Conduct and Ethics (CJCE) had recommended. They unanimously and unconditionally declined to remove her as municipal judge of Pinedale. They also agreed unanimously that she should not be removed as magistrate of the Ninth Judicial District. Finally, they did not even consider the CJCE’s suggestion that she reimburse the state for prosecuting her.
The court unanimously agreed that Neely did not violate Rule 1.1 of the Code of Judicial Conduct. They further agreed that “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.” Further, all five members of the court stipulate that a judge may openly “express her religious beliefs.”
Finally, the court rejected the CJCE’s assertion that Neely was in violation merely by “announcing her position against marriage equality” (Respondent’s Brief, 14), and that “judges do not enjoy the same freedom to proselytize their religious beliefs as the ordinary citizen.” All of this is good news for anyone concerned about the erosion of First Amendment rights.
They Disagreed On Whether Belief Can Affect Action
In spite of broad agreement, still the court sharply divided over whether she violated the Code of Judicial Conduct at all. The majority says she did. The minority “respectfully, but vigorously, dissent[ed].” The disagreement can be broken down into two basic topics: one being Constitution, the other, the law.
The U.S. Constitution guarantees that “Congress shall make no law…prohibiting the free exercise” of religion. But the very first paragraph of the majority opinion posits a “distinction between the freedom to believe and freedom to act.” Then, throughout their discussion, they insist the case is not about Neely’s beliefs, but about her actions.
It is awkward, however, that her “actions” consist entirely of words. Neely has never taken any action in a same-sex marriage, and has never been asked to. What she has been asked, first by a reporter and then by the commission, is to speak to hypothetical questions involving various scenarios. In the absence of any actual case, the Supreme Court is creating a verbal test that she must pass by speaking the right words.
It is especially the conditions the court placed on Neely continuing in the magistracy that highlight the absurdity of this position: “She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies.” But, when pressed by the dissent, the majority admits that judges can still turn down any request to perform any particular marriage ceremony.
This places the majority in the peculiar position of allowing a judge to decline to perform any marriage ceremony for any reason whatsoever—except one. Of course, such a stance remains non-enforceable so long as the reason remains only a thought. But it becomes punishable if it is spoken. How is this not the restriction of free speech?
You Can Speak, But If You Do You Cannot Act
One can approach it from the other side as well. The Supreme Court majority stipulated that Neely can speak freely about her religious views toward marriage. But, once she does, she is no longer free to exercise that religious view. So, the claim that “this case is not about same-sex marriage or the reasonableness of religious beliefs” is true only as long as your words and actions contradict each other.
This ruling is predicated upon the state Supreme Court’s assumption that the law requires every judge to perform same-sex marriages. This is what the majority means when they opine that a judge’s religious beliefs must not “interfere with her fair and impartial application of the law.” But is this assumption, based in any legal text? Here, the dissenting opinion lays bare a glaring problem.
In point of fact, Wyoming law does prohibit same-sex marriage (W.S. 20-1-101). However, the Tenth Circuit Court nullified this law in 2014 (Guzzo v. Mead). But if the Wyoming statute is no longer in effect, what law has replaced it? That’s the question that the majority opinion never really examines, but Kautz’ dissent does.
Guzzo v. Mead is a judicial decision, not a law. It prohibits the state of Wyoming 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.” But Guzzo pointedly does not say who is required to perform these ceremonies. If it had, the CJCE would at least have a legal basis to say that Judge Neely refused to follow the law. But, as it is, this is an unwritten assumption.
Perhaps the Guzzo court wishes that they had stipulated this, or perhaps they intended to leave it to the state. All we know for sure is that they didn’t answer the question. But the majority opinion against Neely acts as though they did say what they did not actually say.
Do These Rules Also Apply to Pastors?
As a Lutheran pastor, I am one of these marriage performers under Wyoming law (W.S. 20-1-106). Does the majority opinion apply to me, or only to judges? They don’t say, just as the Tenth Circuit Court refrained from saying. But if the Wyoming Supreme Court is permitted to insert an unstated requirement upon judges into the Guzzo decision, what principle prevents some future court from reading pastors, priests, and bishops into the same decision?
The truth is that the majority opinion has not interpreted the law, but written a new one. This is the most dangerous thing of all. This is particularly striking since the opinion was handed down at the close of Wyoming’s legislative session.
During those 40 days, 90 legislators, dozens of lobbyists, and thousands of private citizens engaged in a process of give-and-take. This process requires a bill to pass nine separate votes. At each one of these votes, words can be added or subtracted, entire clauses rewritten, and unforeseen problems addressed.
All the while, citizens are advising their elected representatives and their elected representatives are working with one another to arrive at a law that will ideally be clear, wise, and gain the greatest consensus possible. Then, even after all of this hard work, the bills face one more hurdle. It is the governor’s burden to decide whether to sign or veto two months and countless hours of work.
Contrast this with what just happened at the Wyoming Supreme Court. In a hearing last summer, two people addressed the court for only one hour. Since then, five people worked in secret, with no public input, for almost seven months. Finally, with a single 3-2 vote, they added a law to Wyoming jurisprudence that can neither be amended where it is unclear, or augmented where it is insufficient. It cannot be vetoed by the governor, nor taken up by the legislative process.
The majority opinion claims, from the outset, that this case is about “Maintaining the public’s faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law.” This is certainly a noble goal. But to have a new law written by the very court judging Neely is an outrageous overreach. Faith in an impartial judiciary is only maintained by a judiciary that applies the law as written. Writing laws that favor one party to the dispute is the very definition of partiality.
