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Did Supreme Court cancel judges' free-speech rights?

Judge Ruth Neely

A small-town magistrate who lost her job after explaining to a reporter that her Lutheran faith would not allow her to perform a same-sex wedding is petitioning the U.S. Supreme Court.

Ruth Neely is appealing a Wyoming Supreme Court decision against her that if allowed to stand, “poses a broad threat to judges’ expressive freedom, reaching far beyond the circumstances of this case,” contends the petition submitted by her legal team, the Alliance Defending Freedom.

Neely was publicly censured by the Wyoming Commission on Judicial Conduct and Ethics and forced out of her job as a magistrate for explaining to reporter Ned Donovan of the Pinedale, Wyoming, newspaper that her faith precluded her from performing same-sex ceremonies

Donovan told an editor that he wanted to get Neely “sacked,” according to the complaint.

Neely’s comment to the reporter was brought to the attention of Wendy Soto, the executive director of the ethics commission and a former board member of the LGBT advocacy group Wyoming Equality.

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Without anyone having issued a complaint, Soto initiated a
disciplinary process without Neely’s knowledge that ultimately resulted in her censure and removal from her position as magistrate.

The U.S. Supreme Court should overturn that result, ADF argues, for the danger the precedent poses.

The brief states: “Consider a state-court judge who says that he opposes the death penalty and would need to recuse himself from cases involving that issue. Or suppose that a juvenile-court judge discloses that his religious beliefs require him to step aside in proceedings in which minors seek permission to undergo abortions without parental consent. What if a judge indicates that she was sexually assaulted and would be unable to hear cases involving rape charges? By the Wyoming Supreme Court’s logic, all those judges would be exposed to discipline for manifesting bias or a lack of impartiality.”

It also points out that Wyoming judges may express many “nonreligious reasons for refusing wedding requests (e.g. because they do not know the marrying couple, would rather attend a football game, or just ‘don’t feel like’ performing a wedding). But judges cannot decline a wedding request if they express the religious reason that Judge Neely invoked.

The brief says “such stifling of religious speech – which encourages judges to closet their beliefs or lie about their motives – confirms that this court should review whether the Wyoming Supreme Court violated Judge Neely’s free-speech rights.”

Among other constitutional problems with the Wyoming ruling is viewpoint censorship, the petition asserts.

“The state has admitted that its speech-censoring rules – by targeting expression that state officials consider to be biased or partial … discriminate based on content. This case, however, goes beyond mere content discrimination and actually involves discrimination based on viewpoint. Had Judge Neely said that her religious beliefs favor same-sex marriages and that she could not wait to perform those ceremonies, she would have face no punishment,” the brief explains.

The First Amendment, it argues, “forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.'”

“Finally, the Wyoming Supreme Court’s decision implicates not only Judge Neely’s freedom to speak, but also her freedom to decline to express messages that violate her conscience. The court below mandated that Judge Neely commit to personally officiating same-sex weddings in order to retain her role as a marriage-solemnizing magistrate. Yet agreeing to do that would have forced her to speak message at odds with her faith.”

“Although the state has a system of individualized exemptions that permits magistrates to decline marriages for nearly any secular reason, the Wyoming Supreme Court held that Judge Neely could not refer same-sex-marriage reuqests (if she ever received any) to other magistrates for the religious reason she expressed. According to that court, the First Amendment provides no accommodation for a potential religious conflict (1) that has never actually arisen, (2) that the court below admitted is ‘not likely’ to occur … and (3) for a function that others could easily cover.”

The bias of the Wyoming process further was demonstrated, the complaint says, when the commission sought to bring further charges against Neely because the defense counsel she obtained shared her beliefs.

The commission “alleged that Judge Neely violated additional code provisions – including one that prohibits affiliation with an ‘organization that practices invidious discrimination’ … by retaining as counsel a faith-based legal organization that shares her religious beliefs about marriage. The commission insisted that because of her choice of counsel, she could not remain in … her judicial positions.”

“No one should be punished simply for expressing a belief about marriage that is ‘based on decent and honorable religious … premises’ and is held ‘in good faith by reasonable and sincere people,'” said ADF Senior Counsel David Cortman, quoting the U.S. Supreme Court’s marriage decision, Obergefell v. Hodges, which four justices criticized as being unconnected to the Constitution.

“The state allows magistrates to decline wedding requests for countless secular reasons – because they refuse to perform weddings for strangers, because they simply don’t feel like marrying the couple, or because they prefer to watch a football game,” he said. “But the state forbids Judge Neely from saying that she would need to decline some wedding requests for a religious reason. This unconstitutionally targets religion for disfavored treatment, and that’s why we’re asking the U.S. Supreme Court to hear this case.”

Neely has served as the municipal judge in Pinedale, Wyoming, for more than 22 years. In that capacity, she had no authority to solemnize marriages. She also served as a part-time circuit court magistrate in Sublette County for approximately 15 years. In that role, she was authorized to solemnize marriages but had discretion to decline wedding requests for nearly any reason.

The Wyoming commission’s position in the case “threatens to punish not just Neely, but also any other judge who expresses conscience-based conflicts involving any issue,” ADF said.

WND reported last March when the state court’s decision was vigorously opposed by two justices, Michael Davis and Keith Kautz.

The dissenting judges pointed out that Neely broke no law and violated no part of the judicial code of ethics by stating she personally could not perform a same-sex “wedding.”

Davis and Kautz warned that the decision creates a new “religious test” for judges.

“The effect of the majority opinion is concerning for the people of Wyoming. It likely results in a religious test for who may be a judge, at any level, in our state.”

The judges said there is “only a single statute granting judges and others the authority to perform marriages in Wyoming.”

“Apparently from that statutory authority the majority concludes that a circuit court magistrate who is willing to perform any marriages must perform all same sex marriages when requested,” they wrote.

“To avoid ethics charges like these, judges then must pass a religious test indicating that they have no religious beliefs that would prevent them from performing same sex marriages, or be precluded from performing any marriages.”

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