Would (and should) I perform a wedding ceremony for a gay couple in my courtroom?

Yes, I would happily do so. This assumes, of course, that state law authorized me to perform wedding ceremonies and did not prohibit gay couples from marrying. Can anyone put together an argument why I shouldn’t do so?*


*Incidentally, don’t worry about being labelled a bigot if you take the position I shouldn’t do so. You aren’t a bigot if gay marriage isn’t your cup of tea. Indeed, I can think of several solid reason why I shouldn’t perform such a ceremony.

Photo credit: AP and TPM. In 2013, Justice Ruth Bader Ginsburg made history lwhen she presided over the first gay marriage inside the U.S. Supreme Court.

Photo credit: AP and TPM. In 2013, Justice Ruth Bader Ginsburg made history when she presided over the first gay marriage inside the U.S. Supreme Court.


39 responses

  1. RGK,
    I’m curious about that actually. I’ve obviously seen the stories about Ginsburg, but what authorizes a federal judge to marry couples under state law?

  2. SLS,

    Many state laws simply say that a “judge” can marry. Unless the definition of “judge” is limited by statute, a federal judge is a “judge” under state law for purposes of performing such a ceremony. All the best.


  3. In Pennsylvania, the statute (23 Pa.C.S.A. section 1503) specifies that active judges, senior judges, and full-time magistrate judges of the three federal district courts, plus active, retired, and senior judges on the Third Circuit, plus active, retired, and senior judges of the three bankruptcy courts may perform marriages. (For some reason, the statute says that bankruptcy judges and court of appeals judges must be residents of the Commonwealth, but it does not say that for district judge or magistrate judges.)

  4. Council Bluffs, Iowa, is only an hour’s drive from Lincoln, but would allow the couple to have a marriage recognized by the state of Nebraska. I never heard what happened to Nichols v Nichols over there in Nebraska, but the only challenge readily apparent to me while I’m driving would be the (even more) drawn out battle if dissolution is ever desired.

  5. I do not think use of the courtroom for any wedding is proper, It creates the impression that the court facilities are the property of the judge and his friends. If judge marries family and friends away from courthouse he should exercise his or her conscience. If judge is a regular Marrying Sam marry those the law allows to be married without discrimination. Why not leave weddings to state court judges, they can use the money?

  6. The people of the state of Nebraska amended the state constitution and defined marriage as between one man and one woman. For five Supreme Court Justices to hold (as they soon will), that there is no *rational* reason for a society to order itself that way (as it has been for thousands of years) strikes me as the height of judicial arrogance, power usurpation and, yes, lawlessness.

    And, no, I don’t hate homosexuals.

    It kinda comes back to the old joke: What’s the difference between God and a federal judge? A: God doesn’t think he is a federal judge.

  7. Curious, if the Supreme Court invoked heightened or even strict scrutiny, would you have the same problem with the ruling?

  8. Cornhead,
    Rational is a fascinating word in these contexts precisely because it ignores the tradition and history you allude to. From what I understand in the caselaw, rational assessments of marriage prohibitions require more than simply history. They require a reason. What’s a “rational” reason for preserving marriage as between a man and a woman?

    (I’m not advocating for one side or another; I’m too young and know too little about the law to be involved in such a mighty debate. I’m just curious)

  9. Southern: What’s rational about having kids?
    A: Preservation of the species.

    Putting aside modern medicine, two homosexuals together cannot bear children.

    Peter: The category of homosexual doesn’t fit within existing jurisprudence for those other two categories. That being said, they have five five votes on the existing standard. It is all about five votes.

  10. The tradition on which Cornhead relies, history of marriage is a rather complicated issue, arguably has lost its relevance with the rise of companionate marriage which is often childless. The disconnect between traditional ideas of marriage and social reality is what makes tradition irrelevant. Anyway Burke’s influence on legal scholarship is minimal.

  11. Having kids and their rearing is not central to the modern law of marriage or the rights of the parties under that law. Marital rights are given regardless of children, when it can no longer be assumed that children are the norm. Nothing says pro children policies can not be adopted, but its hard to find those in American family law.

  12. Addendum: I also do not think the Robert V. Denny courthouse would be an appropriate wedding location. It is just a stick in the eye to a vast majority of Nebraskans who voted to amend the constitution and paid for the building. The banks of Salt Creek or someone’s house would be fine for Judge Kopf to perform the ceremony.

    Also, what other “social” functions are in a courtroom? The essential function of a courtroom is to hear lawsuits. That’s why it was built and its use should be limited to that purpose.

  13. Cornhead,

    I take your point. Frankly, I am surprised that no one else made it earlier. However, I have used the courtroom in the past to marry two of my “straight” law clerks. I wonder whether that makes a difference. No need to answer.

    All the best.


  14. Red herring. Yes, 70 year old people can get married and physically can’t have children. But the exception doesn’t prove the rule.

    But with the number of children born out of wedlock and marriage at a record low, the societal institution has been destroyed by the Left. Might as well allow SSM. What possible harm could there be? And our elders were complete idiots anyway.

  15. Assuming it was completely legal and did not interfere with the day to day operations of the judge or courtroom, I see no issue either way.

    Marriage is a personal choice between those involved, both as the couple and those associated with the ceremony. If you are asked to be part of it, follow your conscience, but always keep in mind one simple thing. If its not your wedding, its not your business to decide who should participate. If you don’t like it, don’t go. If you go, be happy for the couple and wish them well.

  16. I got married recently, and was surprised to find that the state required both a marriage license and a ceremony. I understand why one might think the ceremony is a good way to publicize the relationship and perhaps induce people to take marriage more seriously. But I didn’t want the rigmarole myself, and the cost of a professional wedding officiant ($500-1000) could be a real obstacle for poorer people. So as long as the state requires people to have a ceremony, I think the state should provide a low-cost and easy venue for doing so.

  17. We must prevent same sex marriage to preserve the institution of marriage which has already been destroyed out of deference to the dead?

  18. Unless I am mistaken the federal courthouse was paid for by the Federal Government. Accordingly, the construction was paid for by New Yorkers as much it was paid for by Nebraskans. That being the case why would a wedding there is a thumb in the eye of anyone? Moreover, the building isn’t limited to courtrooms, the Department of Agriculture is a tenant as is a day care facility.

    As to social occasions, immigrants are sworn in as citizens at the Federal Courthouse (or at least are in some places). Anyone who has attended one of those would probably agree that those are festive social occasions.

  19. Cornhead,
    I think your question is actually rhetorical. Raising children is often not a logical process! Thanks for your input.


  20. Ceremony is nice example of custom without function, ceremony was introduced to deal with problems of private marriages, what we call common law marriages, which were too easy to disclaim. Ceremony made memorable and priest was disinterested witness. For rather complex reasons ceremony stuck around after State began record keeping.

  21. Adam Gillette: My sense is that net federal income tax money contributed by Nebraska corporations and individuals to DC exceeds federal government spending in NE. No New York money was used in building the courthouse. And while there are other tenants, it is called a courthouse and was primarily built for that purpose.

  22. From my way of thinking, you would be a bigot if you sought to prevent others from having the right to be married but not if you merely declined to provide the service outside of your normal job obligations. Whether you yourself choose to get married or perform a marriage is a personal decision, but it is no one’s place to decide that a consenting couple should not have the right to make that same decision for themselves. This is the primary argument that I have with organized religion – the idea that someone believing something that cannot be proven can pass laws based on that unverifiable belief to take away the rights of others. Laws restricting same-sex marriage have no basis on factual evidence of any kind, no more so than the anti-miscegenation laws before them – they are based on a complete and utter farce. If someone wants to believe in something some snake oil salesman told them, feel free and don’t let anyone stop them from abiding by their self-imposed limitations, but don’t expect me to abide by their made-up rules when they have no positive effect for society at large.

    In a case like the one RGK described, where it is not a required duty of the judge but merely an optional one, I think the decision is entirely and only up to the judge him/herself.

  23. Repenting: SSM is the final nail in the coffin. And the dead Founding Fathers knew a few things about law, human nature and society. ( Insert slaving owning Founding Fathers attack here.) SSM was not even within the comprehension of anyone – as a legit legal issue – 30 years ago much less in 1776.

    I realize by this time next year SSM will be the law of the land by a 5 – 4 vote. The social divide on the issue will last forever.

    And we will have polygamy in five years. To do so would deprive Muslims of their First Amendment rights. From time to time I listen to LGBT radio on Sirius. Their answer about limiting marriage to two people is “because we say so.” No lie.

    Lesson: social policy should be decided by the states and the federal judiciary should stick to its own jurisdiction.

  24. Your assumption that I think federal courts should decide the same sex marriage issue is wrong like RGK I am a long time fan of Bickel and Thayer before him. I do think the arguments against same sex marriage are silly Two asides most Muslims do not practice polygamy, too expensive, and Red States are usually net gainers from federal taxes.

  25. SLS,

    Now THAT creeps me out. Seriously, I don’t think I would officiate in the courtroom for a defendant and his spouse-to-be when I had just sentenced the guy to life in prison. Too much could go wrong later on, and I would prefer not to be involved in the fallout. But, to each his own.

    All the best.


  26. Judge:
    It seems to me that, clothed with lifetime tenure, it is only state law and/or your personal objection which would prevent such a thing from occurring. Yours truly is against the idea of same sex marriage but am in favor of legal domestic partnerships. Such a things strikes me as a reasonable compromise by which to give some degree of legal protection to those in a relationship while, at the same time, recognizing the uniqueness associated with traditional marriage. This is what would cause me to politely and respectfully decline officiating at a same sex marriage ceremony if I were asked to do so.

  27. Seems to me that if the only authority for you to perform marriages is Nebraska state law and the constitution of Nebraska defines marriage as one man and one woman, you should decline to perform same-sex or polygamous marriages for that reason.

  28. Nebraska is a net payor on federal taxes. On a per capita basis, a bigger net payor than NY, though much less on a total basis due to the much smaller population All “red” states are not created equal.

    Florida is where federal tax money goes to die.

  29. I would say, at least not yet.

    Same sex marriage is the hot button issue affecting the federal judiciary right now. We do not know if the Supreme Court will take a SSM case this term. We also do not know if a resulting decision will resolve the issue (The Prop 8 decision from California did not.) I think that while the issue is so prominently in front of the judiciary, judges (and especially Supreme Court justices) should avoid public displays of a position on the issue.

    Even a definitive ruling that states must recognize SSM is sure to spaWn an array of litigation about the degree to which private individuals must accommodate or recognize SSM. (For example a baker who was sued for refusing to bake a cake for a same sex wedding, and etc, and etc.)

    I am personally opposed to same sex marriage because I do not think we are clever enough to discard the social norms that have served humanity through several millennia. At a minimum, though, I think that, for now, the judicial officers of the united states should abstain from such a public display of advocacy for one side or the other.

  30. JMRJ,

    Oh, yes, my authority derives only from state law. So, if state law would not authorize me to perform the ceremony, I would not do so.

    All the best.


  31. JDM,

    Setting aside my personal views (which I decline to state), from a prudential perspective, your argument has great merit. Indeed, so long as Nebraska law bans such marriages, I cannot conduct such a ceremony legally.

    On the other hand, if the law were to change either because Nebraska changed the law or a court declared Nebraska’s law unconstitutional, merely conducting a lawful marriage ceremony would not, from my point of view, express anything about the merits of legal disputes such as the baker hypothetical mentioned in your comment. Accordingly, I would treat same sex couples just like I would treat couples of different genders.

    I should add this caveat to the foregoing paragraph. If Nebraska were to contest a court declaration that same sex marriage could be performed in Nebraska, I would not officiate over such a ceremony until I was sure that the declaration of the court had become final.

    All the best.


  32. This is also my issue. I have no problem with your performing marriages of gay couples, assuming state law allows and you are comfortable doing so. (I understand that opponents of gay marriage are not necessarily bigoted, and I also would have no problem with your not being comfortable doing this, if that were the case.) But what is the justification for using the courtroom for a private wedding, regardless of the genders of the spouses?

  33. Securities Lawyer,

    The honest and simple answer is that my chambers (office) would not accomodate a crowd. But I doubt that is a justification. While I understand what you mean, the wedding ceremony is not “private.” Anyone is welcome to attend. Furthermore, we use the courtroom for other “private” social events such as Inns of Court gatherings. Finally, unless and until there is a burdensome rush to book the courtroom for weddings, I like the idea of using a courtroom for happy public events that have a decided human side. Is that a justification? Don’t know.

    Darn you Securities Lawyer! You caused me to think, just like securities lawyers always do. Fraud on the market anyone?

    All the best.


  34. Cornhead, politicians and much of the general public are confusing a religious ceremony with a civil one. One’s Biblical leanings, dogma, or teachings about homosexuality are incompatible with anti-discrimination law generally. One is of course reminded of Loving vs. Virginia (so aptly named). Scalia’s Catholics will never be required to perform a SSM ceremony, but the justice of the peace down the road certainly will. Just a matter of time before this church / state dichotomy is finally settled.

  35. I should have added Lawrence v. Texas, another case that found Scalia and others caught up in their own religious beliefs.

  36. Mswales: Interjecting the crazy notion that the religion of Justice Scalia has anything to do with any of his decisions is the biggest red herring of all. Typical lefty tactic.

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