“How will my neighbors’ gay marriage affect me?” said the people a decade ago, implying that it would not, and that any objection to gay marriage was bigoted nonsense. That wasn’t true, and it was never true, and I take no pleasure in saying, “I told you so.” Excerpt from an AP story, datelined Cheyenne:
Some current and former Wyoming lawmakers as well as national religious groups are supporting a municipal judge who faces a dismissal petition before the Wyoming Supreme Court for saying she would not preside over same-sex marriages.
The Wyoming Commission on Judicial Conduct and Ethics is recommending the court remove Municipal Judge and Circuit Court Magistrate Ruth Neely of Pinedale. The commission started investigating Neely after she told a reporter in 2014 she would not perform same-sex marriages because of her religious beliefs.
Attempts to reach Neely and her attorneys, including the Alliance Defending Freedom, an Arizona religious advocacy law firm, were not successful Monday.
Neely is fighting removal, arguing she has a constitutional right to voice her opinion. Her lawyers have said no same-sex couples have asked her to preside over their weddings.
In a response to the removal petition, Neely’s lawyers stated in a court filing last month that removing her would violate her rights. They quoted a provision of the Wyoming Constitution which prohibits the state from finding a person incompetent to hold public office, “because of his opinion on any matter of religious belief whatever.”
Pinedale is a tiny Wyoming town (pop. 2,030) that Judge Neely has served for over 20 years. According to the Becket Fund for Religious Liberty, which has filed a friend of the court brief on behalf of Judge Neely:
Ignoring the pleas of LGBT citizens in the small town of Pinedale, Wyoming, a state agency is demanding that – after over 20 years of sterling service – Judge Ruth Neely be banned for life from the judiciary and pay up to $40,000 in fines merely for stating that her faith prevents her from personally performing same-sex weddings. Even though small-town magistrates like Judge Neely aren’t required or even paid by the state to perform weddings, the state agency concluded that Judge Neely “manifested a bias” and is therefore permanently unfit to serve as a judge. This would be the first time in the country that a judge was removed from office because of her religious beliefs about marriage.
Let’s be clear: in her role as a municipal judge, Neely cannot solemnize weddings because she lacks the legal authority. Her court handles things like traffic fines and public drunkenness. Though her role as a part-time magistrate — separate from her municipal judge job — can include performing marriages, Wyoming law does not require her or any other magistrate to do so.
Nobody has asked Judge Neely to perform a same-sex marriage. So how did the state judicial commission come to know of her beliefs? In late 2014, after a state judge in Wyoming legalized gay marriage there, Judge Neely was contacted by a reporter from the Sublette Examiner asking her if she would perform them. According to the article:
“I will not able to do them,” Neely told the Examiner. “We have at least one magistrate who will do same-sex marriages but I will not be able to.”
All judges are required to marry those who meet the legal requirements, unless there is a scheduling conflict or other problem. In those cases, prospective couples will be referred to other magistrates.
But Neely’s inability to perform the marriages has nothing to do with her schedule but, rather, her religious beliefs.
“When law and religion conflict, choices have to be made. I have not yet been asked to perform a same-sex marriage,” Neely said.
In February, the Wyoming Commission on Judicial Conduct and Ethics recommended to the State Supreme Court that she be removed from both positions (even the one in which she is not allowed to perform marriages), and pay a $40,000 fine, simply for “manifesting bias.” This, even though Judge Neely has never questioned the legality of same-sex marriage, even though she affirms that she will treat gay citizens equally in all cases before her, and even though she affirms that she will treat married gay couples as legally married in all cases that come before her.
The Alliance Defending Freedom, as you read above, is representing Judge Neely. It’s not (yet) available on the group’s website, but I obtained a copy of the brief ADF filed on Judge Neely’s behalf. It says, in part:
Part-time circuit court magistrates like Judge Neely have discretion when deciding whether to serve as celebrants for weddings. Neely Aff. ¶ 6 (C.R. 828). Wyoming law provides that a magistrate, just like a “minister of the gospel, bishop, priest or rabbi, or other qualified person acting in accordance with the traditions or rites for the solemnization of marriage of any religion, . . . may perform the ceremony of marriage.” Wvo. Stat. 20-1- 106(a) (emphasis added). The law thus does not require part-time magistrates to celebrate marriages, and the Commission admitted this during discovery. See Soto Dep. at 153 (C.R. 438) (acknowledging that judges are not “required to perform marriages”); Comm’n Resp. to Judge Neely’s Reqs. for Admis. No. 4 (C.R. 487).
Practice confirms that magistrates in Wyoming have discretion when choosing to solemnize marriages. In fact, part-time magistrates and other judges decline to solemnize marriages for a host of reasons: (1) if a magistrate limits herself to solemnizing marriages only for friends and family members (and thus refuses to officiate a stranger’s wedding), Soto Dep. at 152-54 (C.R. 438-39); Smith Dep. at 43-44 (C.R. 465); (2) if a magistrate arbitrarily decides that she “just do[esln’t feel like” solemnizing a particular wedding, Soto Dep. at 152 (C.R. 438); (3) if a magistrate refuses to travel more than a certain distance for a wedding, Id. at 153 (C.R. 438); (4) if a judge refuses to perform a wedding scheduled outside of business hours, Haws Dep. at 60-62 (C.R. 360-61); (5) or if a magistrate “is too busy” for a wedding, Soto Dep. at 151 (C.R. 438); Haws Dep. 66-67 (C.R. 362).
Judge Neely is a member of the conservative Lutheran Church (Missouri Synod). But she affirms that despite her religious beliefs, if a gay couple asked her to marry them, she would refer them to another magistrate willing to perform the legal ceremony.
The brief also quotes several gay citizens of the town, going on the record defending Judge Neely and her fairness:
The fundamental principle that no judge should be expelled from office because of her core convictions unites a diverse group of Wyoming’s citizens, including members of the LGBT community who have expressed dismay at the Commission’s actions here. Most notably, Kathryn Anderson of Pinedale said that “it would be obscene and offensive to discipline Judge Neely for her statement . . . about her religious beliefs regarding marriage.” Anderson Aff. ¶ 5 (C.R. 901-02). Judge Neely asks this Court to heed Ms. Anderson’s words, reject the Commission’s recommendation to expel her from her profession, and allow her to continue serving her community with excellence as she has done for more than two decades.
The brief has some disturbing information about Ned Donovan, the reporter who wrote the original article, and follow-up editorials calling for Neely’s removal. Judge Neely asserts that he promised not to write the original article if she would reverse her decision. Donovan has since left his position at the paper, but the current editor submitted an affidavit saying that Donovan has been calling him, urging him to campaign for Judge Neely to be “sacked.”
More from the brief:
Early in these proceedings, the Commission’s attorney told Judge Neely that the Commission would forego its prosecution if she would agree to resign both of her judicial positions, never again seek judicial office in Wyoming, admit wrongdoing, and allow the Commission to publicly state that she had decided to resign in response to a charge of judicial misconduct. See Neely Sanctions Mem. at 11 (C.R. 1300). Faced with such an unreasonable demand, Judge Neely had only one option to defend her compliance with the Code and her constitutional liberties: litigate against the Commission’s claims.
The Commission tried to sanction Judge Neely for accepting the pro bono religious liberty legal organization ADF as her counsel, because in their view, ADF is an organization that “advocates for discrimination” (that is, defends the religious liberty rights of people of faith caught in the LGBT crosshairs). It backed down when the judge challenged them on constitutional grounds.
Here’s one heart of Neely’s defense:
In order to justify its claim that Judge Neely refused to comply with the law, the Commission suggests that she announced a refusal to follow the Guzzo ruling (which legalized same-sex marriage in Wyoming). See Order at 5 (C.R. 1104). But that is not correct. Guzzo requires the state to ensure that same-sex couples may enter into a state-recognized marriage. See 2014 WL 5317797 at *9• It simply does not address whether an individual circuit court magistrate (or any other judge) with discretionary authority to solemnize marriages must personally serve as a celebrant for weddings that conflict with her religious beliefs. Once the state ensures that same-sex couples have access to marriage licenses and authorized marriage celebrants (which is unquestionably true in Sublette County, see supra at 14-16), it has satisfied its obligations under Guzzo.
If the State Supreme Court upholds the Commission’s finding, “the Commission has effectively said that no one who holds Judge Neely’s widely shared beliefs about marriage can remain a judge in Wyoming.”
None of the three living US Supreme Court justices in the Obergefell minority could serve as any kind of judge in Wyoming. That’s how extreme this is.
This is the product of a highly politicized legal culture willing to go to any lengths to trample the rights of dissenters from the professional LGBT agenda. This is why it is vital to support religious liberty legal organizations like ADF and the Becket Fund. These court fights are going to occupy religious believers for years to come. This is very much a David vs. Goliath fight.
This does not solve the long-term problem of an entire estate of American society — the lawyers and the judges — who despise traditional Christians and others, and who are going to use the power of the law to flatten us whenever they can. But we fight the battles in front of us as best we can, and hope for the best.
UPDATE: Carl Trueman, on this case:
We should all reflect on the significance of this case because it has far-reaching legal and cultural implications. Can one not hold public office in the United States now unless one is committed to the latest ideological fad, regardless of whether that fad is actually relevant to one’s work? Could one be a public school teacher—or a teacher of any government accredited school for that matter—unless one subscribes ex animo to whatever the creed of the day happens to be? And where will this end? Given the Unholy Trinity’s ability to defy democracy and transform our world according to its own tastes, are private persons any safer in the long term than public employees.
Further, given the constantly changing goal-posts of a politics immersed in the emotivist chaos of competing psychological identities and subjective personal rights, why on earth would anyone now want to pursue a career that in five, ten, or fifteen years might be torn from them simply because somebody somewhere finds a right to goodness-knows-what in the Constitution—even, as in this case, when their job does not actually require them to be involved in said goodness-knows-what? However bien-pensant you like to think you are, there will always be somebody out there who is more so. And if they take charge, you might find your own revolution devouring its own children.