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An Inquiry Concerning the Honorable Ruth Neely v. Wyoming Commission on Judicial Conduct and Ethics

Supreme Court of Wyoming

March 7, 2017

AN INQUIRY CONCERNING THE HONORABLE RUTH NEELY, MUNICIPAL COURT JUDGE AND CIRCUIT COURT MAGISTRATE, NINTH JUDICIAL DISTRICT, PINEDALE, SUBLETTE COUNTY, WYOMING JUDGE RUTH NEELY (Petitioner),
v.
WYOMING COMMISSION ON JUDICIAL CONDUCT AND ETHICS (Respondent).

         Original Proceeding Petition on Professional Regulation Wyoming Commission on Judicial Conduct and Ethics

          Representing Petitioner: Herbert K. Doby, Torrington, Wyoming; James A. Campbell, Kenneth J. Connelly, and Douglas G. Wardlow of Alliance Defending Freedom, Scottsdale, Arizona. Argument by Mr. Campbell.

          Representing Respondent: Patrick Dixon and Britney F. Turner of Dixon & Dixon, LLP, Casper, Wyoming; Timothy K. Newcomb, Laramie, Wyoming. Argument by Mr. Dixon.

          Representing Amici Curiae Mayor and Town Council Members of the Town of Pinedale and Sutherland Institute Center for Family & Society: William H. Twichell, Pinedale, Wyoming.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          FOX, Justice, delivers the opinion of the Court; KAUTZ, Justice, files a dissenting opinion, in which DAVIS, Justice, joins.

          FOX, Justice.

         [¶1] Judge Ruth Neely objects to the Wyoming Commission on Judicial Conduct and Ethics' (Commission) recommendation that she be removed from her positions as municipal court judge and part-time circuit court magistrate because of her refusal to perform same-sex marriages in her judicial capacity as a part-time circuit court magistrate. We conclude, as have all the state judicial ethics commissions that have considered this question, that a judge who will perform marriages only for opposite-sex couples violates the Code of Judicial Conduct, and we hold that 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.

         ISSUES

         [¶2] While the parties state numerous and divergent issues, we consider the issues in this case to be:

1. Does the United States Constitution permit this Court to discipline Judge Neely for announcing that her religious beliefs prevent her from officiating same-sex marriages?
2. Does the Wyoming Constitution permit this Court to discipline Judge Neely for announcing that her religious beliefs prevent her from officiating same-sex marriages?
3. Are the provisions of the Wyoming Code of Judicial Conduct alleged to have been violated by Judge Neely void for vagueness?
4. Did Judge Neely violate the Wyoming Code of Judicial Conduct?

         [¶3] This case is not about same-sex marriage or the reasonableness of religious beliefs. We recognize that "[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here." Obergefell v. Hodges, 135 S.Ct. 2584, 2602, 192 L.Ed.2d 609 (2015). This case is also not about imposing a religious test on judges. Rather, it is about maintaining the public's faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law, independent of outside influences, including religion, and without regard to whether a law is popular or unpopular.

         FACTS

         [¶4] Judge Neely was appointed as a municipal court judge for the Town of Pinedale, Wyoming, in 1994, and has served continuously in that capacity ever since.[1] As a Pinedale municipal court judge, Judge Neely hears all cases arising from the town's ordinances, such as traffic and parking violations, animal control, public intoxication, underage drinking, breach of peace, nuisances, and similar matters. Municipal court judges are not authorized to perform marriages. Wyo. Stat. Ann. § 20-1-106(a) (LexisNexis 2015). Municipal court judges are appointed by the governing bodies of the towns where they sit. Wyo. Stat. Ann. § 15-4-202(d) (LexisNexis 2015). It is undisputed that the Wyoming Code of Judicial Conduct applies to them, and that they are subject to the disciplinary authority of the Commission on Judicial Conduct and Ethics and this Court. Wyoming Code of Judicial Conduct, Application I. (B); see also Wyo. Const. art. 5, § 6. The evidence is uncontroverted that Judge Neely is highly respected as a municipal court judge in her community, including by at least one member of the gay community.

         [¶5] Since approximately 2001, Judge Neely has also served as a part-time circuit court magistrate; she was most recently appointed by circuit court Judge Haws to assist him. Part-time magistrates are in a unique position in that they perform judicial functions only as needed. They are not on the state payroll, but instead are compensated for particular services by voucher. Wyo. Stat. Ann. § 5-9-213 (LexisNexis 2015). One of her powers in that capacity is to perform marriage ceremonies, Wyo. Stat. Ann. § 5-9-212(a)(iii) (LexisNexis 2015), and in fact performing marriages was her primary function as a part-time circuit court magistrate. Judge Neely was compensated for marriages by the marrying couple and not by the state. Under Wyoming law, marriage is "a civil contract . . . ." Wyo. Stat. Ann. § 20-1-101 (LexisNexis 2015). Marriage ceremonies have minimal requirements:

In the solemnization of marriage no particular form is required, except that the parties shall solemnly declare in the presence of the person performing the ceremony and at least two (2) attending witnesses that they take each other as husband and wife.

Wyo. Stat. Ann. § 20-1-106(b) (LexisNexis 2015).

         [¶6] Judge Neely has performed over 100 weddings. Part-time magistrates can and do decline to perform marriages for various reasons. Stephen Smith, who also serves as a part-time circuit court magistrate, testified that he only performs marriages for people he knows. Judge Haws testified that he would turn down a request to perform a marriage if his schedule would not permit it, and that it would be acceptable for magistrates to turn down such a request if they were going to a football game, getting their hair done, or were sick.

         [¶7] When she was appointed as part-time circuit court magistrate, Judge Neely took the oath required by Wyoming law.

"I do solemnly swear (or affirm) that I will support, obey and defend the constitution of the United States, and the constitution of the state of Wyoming; that I have not knowingly violated any law related to my election or appointment, or caused it to be done by others; and that I will discharge the duties of my office with fidelity."

Wyo. Const. art. 6, § 20.[2]

         [¶8] Judge Neely is a devout Christian and a member of the Lutheran Church, Missouri Synod. It is undisputed that she holds the sincere belief that marriage is the union of one man and one woman. Shortly after the United States District Court for the District of Wyoming issued its order enjoining the state from enforcing or applying any "state law, policy, or practice, as a basis to deny marriage to same-sex couples, " Guzzo v. Mead, No. 14-CV-200-SWS, 2014 WL 5317797, at *9 (D. Wyo. Oct. 17, 2014), [3] Judge Neely met with Judge Haws "to explain to him that I would not be able to officiate same-sex marriages due to my sincerely held religious beliefs about what marriage is." Judge Haws advised her to "keep your head down and your mouth shut, " until they received further guidance.

         [¶9] On December 5, 2014, Pinedale Roundup reporter Ned Donovan called Judge Neely on her cell phone. She returned the call, Mr. Donovan answered "Pinedale Roundup, " and he then asked her if she was "excited" to be able to perform same-sex marriages. In the article that followed the interview, two quotes were attributed to Judge Neely, which she later testified were accurate:

"I will not be able to do them. . . . We have at least one magistrate who will do same-sex marriages, but I will not be able to."
"When law and religion conflict, choices have to be made. I have not yet been asked to perform a same-sex marriage."

         [¶10] Mr. Donovan's article appeared in the December 9, 2014 edition of the Pinedale Roundup. The Sublette Examiner published the article in its online edition on December 11, 2014. The matter came to the Commission's attention, and on December 22, 2014, the Commission's Executive Director forwarded the articles to the Commission's Investigatory Panel for their review. On January 6, 2015, the Investigatory Panel decided to commence an investigation and sent a letter of inquiry to Judge Haws and Judge Neely.

         [¶11] Also on January 6, without knowledge of the Commission's actions, Judge Neely sent a letter to the Judicial Ethics Advisory Committee to seek its guidance. She asked: "Can a magistrate recuse himself/herself from officiating at a same sex wedding due to religious conviction; and if so, without fear of civil rights repercussions?" She explained:

Without getting in too deeply here, homosexuality is a named sin in the Bible, as are drunkenness, thievery, lying, and the like. I can no more officiate at a same sex wedding than I can buy beer for the alcoholic or aid in another person's deceit. I cannot knowingly be complicit in another's sin. Does that mean I cannot be impartial on the bench when that homosexual or habitual liar or thief comes before me with a speeding ticket? Or the alcoholic appears before me for yet another charge of public intoxication? No. Firmly, no. I have been the municipal court judge for the Town of Pinedale for over 20 years; and there has not been one claim of bias or prejudice made by anyone who has come before me. Not the homosexual, not the alcoholic, not the liar, not the thief. Not one.[4]

         The Commission provided no answer to Judge Neely's question, explaining that it could only "provide guidance for those judges seeking resolution to current or unresolved ethical dilemmas, rather than to confirm a judge's decision or provide a legal opinion." On January 15, 2015, Judge Haws met with Judge Neely and suspended her from her position as a part-time circuit court magistrate.

         [¶12] In her response to the Investigatory Panel's inquiry, Judge Neely affirmed that "[m]y conscience, formed by my religious convictions, will not allow me to solemnize the marriage of two men or two women . . . ." She indicated that she has not been asked to perform a same-sex marriage, and she admonished the Commission:

[P]lease keep my and others' First Amendment rights in mind. I want to continue to officiate at weddings; and I should not have to fear that lawful exercise of my freedom of religion as a member of a Lutheran church in Pinedale, Wyoming would be a violation of the Code.

         [¶13] After reviewing the responses from Judge Neely and Judge Haws, the Investigatory Panel met again and determined there was probable cause to find a code violation and referred the matter to the Commission's Adjudicatory Panel. The Commission and Judge Neely retained counsel, and the parties engaged in discovery and filed cross-motions for summary judgment. The Adjudicatory Panel held a hearing on those motions and issued its Order Granting Commission's Motion for Partial Summary Judgment and Denying Judge Neely's Motion for Summary Judgment on December 31, 2015. The full Commission adopted the Adjudicatory Panel's findings and recommendations, and recommended that Judge Neely be removed from her positions as municipal court judge and part-time circuit court magistrate.

         [¶14] Judge Neely timely petitioned this Court to reject the Commission's recommendation, the parties filed their briefs, and this Court heard the arguments of counsel. Although normally all proceedings before the Commission are confidential (Rules Governing the Commission on Judicial Conduct and Ethics, Rule 22), Judge Neely filed a motion seeking to remove the confidentiality, the motion was not opposed by the Commission, and it was granted by this Court. Several motions to file Amicus Curiae briefs were filed, and this Court denied all but the Motion for Leave to File Proposed Brief of Amici Curiae Mayor and Town Council Members of the Town of Pinedale and Sutherland Institute Center for Family & Society in Support of the Honorable Ruth Neely's Petition Objecting to the Commission's Recommendation, which was granted.

         DISCUSSION

         [¶15] Judge Neely contends that removing[5] her from either judicial position "because of her religious beliefs" would violate her constitutional rights to free speech and free exercise of religion, under both the United States and the Wyoming constitutions. Judge Neely's religious beliefs, however, are not the issue. Rather, the issue is Judge Neely's conduct as a judge.

         I. Does the United States Constitution permit this Court to discipline Judge Neely for announcing that her religious beliefs prevent her from officiating same-sex marriages?

         [¶16] The free exercise clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." U.S. Const. amend. I. This provision is made applicable to the states by the Fourteenth Amendment. Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires." Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 1599, 108 L.Ed.2d 876 (1990).[6] Yet the United States Supreme Court has recognized an important distinction between the "freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." Cantwell, 310 U.S. at 303-04, 60 S.Ct. at 903.

         [¶17] In Smith, the United States Supreme Court considered the free exercise claims of two parties whose employment had been terminated for their use of peyote for religious purposes, and then were denied unemployment benefits. 494 U.S. at 874, 110 S.Ct. at 1598-99. The Court rejected respondents' claims that "their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practices . . . ., " Id. at 878, 110 S.Ct. at 1599, citing the principle that a citizen cannot excuse violation of the law because of his religious beliefs. "'Laws, ' we said, 'are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . .'" Id. at 879, 110 S.Ct. at 1600 (quoting Reynolds v. United States, 98 U.S. 145, 166-67, 25 L.Ed. 244 (1878)).

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'

Smith, 494 U.S. at 879, 110 S.Ct. at 1600 (citations omitted).

         [¶18] We adhere to the Smith Court's rule on the interplay between the right to free exercise and the obligation to comply with a valid and neutral law, but unlike the Smith Court, we will apply strict scrutiny to our analysis. The parties agree that we should do so, and Judge Neely has raised both free exercise of religion and freedom of speech claims, requiring us to apply the strict scrutiny standard to our decision. See Republican Party of Minnesota v. White, 536 U.S. 765, 774, 122 S.Ct. 2528, 2534, 153 L.Ed.2d 694 (2002) (applying strict scrutiny in First Amendment challenge to rule restricting judicial campaign speech). Strict scrutiny requires us to determine whether disciplining Judge Neely for her refusal to conduct same-sex marriages serves a compelling state interest, and whether the discipline is narrowly tailored to serve that interest. Williams-Yulee v. Florida Bar, __ U.S. __, __, 135 S.Ct. 1656, 1664-65, 191 L.Ed.2d 570 (2015).

         [¶19] The judicial code at issue in Williams-Yulee prohibited candidates for judicial election from "personally solicit[ing] campaign funds, or solicit[ing] attorneys for publicly stated support . . . ." 135 S.Ct. at 1663 (citation omitted). Williams-Yulee (Yulee), who ran for a seat on a county court, drafted a campaign letter soliciting campaign contributions, which she mailed to local voters and posted on her campaign website. Id. The Florida bar filed a complaint against Yulee for violating the Florida Code of Judicial Conduct, and the Florida Supreme Court, finding that Canon 7C was narrowly tailored to serve a compelling state interest, imposed sanctions on Yulee for her code violation. Id. at 1664.

         [¶20] The Williams-Yulee Court agreed that the State of Florida had a "compelling interest in preserving public confidence in the integrity of the judiciary . . . ." Id. at 1666.

The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary "has no influence over either the sword or the purse; . . . neither force nor will but merely judgment." The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The judiciary's authority therefore depends in large measure on the public's willingness to respect and follow its decisions. As Justice Frankfurter once put it for the Court, "justice must satisfy the appearance of justice." Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954).

Id. See also Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 889, 129 S.Ct. 2252, 173 L.Ed.2d 1208 (2009) ("Judicial integrity is . . . a state interest of the highest order." (citation omitted)). We find that, like the State of Florida, the State of Wyoming has a compelling government interest in maintaining the integrity of the judiciary, in this case by enforcing Wyoming Rules of Judicial Conduct 1.2, 2.2, and 2.3.

         [¶21] Judge Neely contends that Republican Party of Minnesota v. White governs, and there is no compelling state interest in ensuring her lack of preconception on the issue of same-sex marriage. 536 U.S. at 777-78, 122 S.Ct. at 2536. In White, the United States Supreme Court addressed a different rule, restricting judicial campaign activity.[7] The Court there had before it the "announce clause, " which said that a candidate for judicial office in Minnesota shall not "announce his or her views on disputed legal or political issues." Id., 536 U.S. at 770, 122 S.Ct. at 2532. (The "announce clause" is distinguished from a separate provision which "prohibits judicial candidates from making 'pledges or promises of conduct other than the faithful and impartial performance of the duties of the office.'" (internal citation omitted)).

         [¶22] In White, a candidate for judicial office had distributed campaign literature criticizing "Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion." Id. at 768, 122 S.Ct. at 2531. Although a complaint was filed against him, the disciplinary board with the responsibility to investigate ethical violations dismissed the complaint, expressing doubt whether the announce clause was constitutionally enforceable. Id. at 769, 122 S.Ct. at 2531. The candidate, who had nevertheless withdrawn from the race, filed suit, joined by the Republican Party of Minnesota and others, seeking a declaration that the announce clause violated the First Amendment. The board interpreted the announce clause to allow the candidate to criticize decisions of the state supreme court on such issues as application of the exclusionary rule in criminal cases, striking down a state law restricting welfare benefits, and financing abortions for poor women, but not if the candidate also stated he was against stare decisis. Id. at 771-72, 122 S.Ct. at 2533.

         [¶23] The Court found that, although judicial impartiality may be a compelling state interest, the announce clause was not narrowly tailored to serve that interest. Id. at 774-76, 122 S.Ct. at 2534-35. The White majority reached this conclusion by first defining "impartiality" as "the lack of bias for or against either party to the proceeding. Impartiality in this sense assures equal application of the law." Id. at 775-76, 122 S.Ct. at 2535 (emphasis in original). The Court then reasoned that the announce clause failed to address the objective of judicial impartiality because it "does not restrict speech for or against particular parties, but rather speech for or against particular issues." Id. at 776, 122 S.Ct. at 2535 (emphasis in original).

         [¶24] There are two critical differences between White and Judge Neely's case. First, rather than simply express her views on a matter of law or religion, she has stated her position that she will not perform her judicial functions with impartiality. She does not merely believe that homosexuality is a sin; as a judge, she will manifest that belief by not treating homosexual persons the same way she treats heterosexual persons. Thus, unlike the candidate in White, Judge Neely's conduct is at odds with a "lack of bias for or against either party . . . ." Id. at 775, 122 S.Ct. at 2535. She refuses "equal application of the law" to homosexuals. Id. at 776, 122 S.Ct. at 2535. Second, the rules she has violated are far more well established than the announce clause at issue in White. Rule 1.2, Promoting Confidence in the Judiciary; Rule 2.2, Impartiality and Fairness; and Rule 2.3, Bias, Prejudice, and Harassment, all address different facets of the fundamental requirement that judges maintain public confidence in the judiciary by impartially applying the law. See infra ¶¶ 59-70. The Wyoming Code of Judicial Conduct, including the three rules at issue here, is based on the American Bar Association Model Code of Judicial Conduct, as revised in 2007. Arthur Garwin et al., Annotated Model Code of Judicial Conduct, at 22, 30, 92, 111 (2d ed. 2011). Each of the rules at issue here has been applied in numerous decisions. Id. at 31-73, 93-111, 113-119.

When [a judge] takes the oath of office, he or she yields the prerogative of executing the responsibilities of the office on any basis other than the fair and impartial and competent application of the law to the facts. The preservation of the rule of law as our last best hope for the just ordering of our society requires nothing less than an insistence by this Court that our justice court judges be in fact what they are in name: judges.

In re Bailey, 541 So.2d 1036, 1039 (Miss. 1989) (emphasis omitted).

         [¶25] The White Court went on to look at other possible grounds for finding a compelling state interest, and it rejected the argument that avoiding preconception on a particular legal view was a compelling state interest, in part because "it is virtually impossible to find a judge who does not have preconceptions about the law." 536 U.S. at 777, 122 S.Ct. at 2536. It similarly rejected the notion that there was a compelling state interest in maintaining judicial open-mindedness regarding the law, stating, for example, that Minnesota's prohibition of a judicial candidate's statement, "I think it is constitutional for the legislature to prohibit same-sex marriages, " was "woefully underinclusive" because the same person could make that statement prior to announcing his candidacy, and after he is elected. Id. at 779-80, 122 S.Ct. at 2537. (White was decided before Obergefell.)

         [¶26] Judge Neely attempts to fit her conduct into the "lack of preconception" prong discussed in White. 536 U.S. at 766, 122 S.Ct. at 2530. But we are not concerned here with Judge Neely's views on the issue of same-sex marriage. Instead, the questions that Judge Neely's conduct engender regarding her judicial impartiality go to her bias toward particular parties, rather than toward particular issues. Judge Neely has indicated that she will perform marriage ceremonies for one category of parties, but not another. Her position is a sufficient basis for the public's confidence in Judge Neely's impartiality to be undermined, and thus enforcement of the Code of Judicial Conduct serves a compelling state interest under these facts. Although Judge Neely contends that this result would mean that "no one who holds Judge Neely's widely shared beliefs about marriage can remain a judge in Wyoming, " that is incorrect. Judge Neely may hold her religious beliefs, and she must impartially apply the law regardless of those beliefs.

         [¶27] It is quite likely that all judges disagree with some aspect of the law for religious, personal, or moral reasons. Yet the judiciary plays a key role in preserving the principles of justice and the rule of law, which requires the consistent application of the law regardless of the judge's personal views. "Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question." Wyoming Code of Judicial Conduct, Rule 2.2, Comment 2. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833, 850, 112 S.Ct. 2791, 2806, 120 L.Ed.2d 674 (1992). An independent judiciary "requires that judges decide cases according to the law and the facts, without regard to whether" a particular law is popular, and without permitting a judge's "other interests or relationships to influence the judge's judicial conduct or judgment." Wyoming Code of Judicial Conduct, Rule 2.4(B) and Comment. "No judge is permitted to substitute his concept of what the law ought to be for what the law actually is." In re Inquiry Concerning a Judge, J.Q.C. No. 77-16, 357 So.2d 172, 179 (Fla. 1978). We find that the state has a compelling interest in maintaining public confidence in the judiciary by enforcing the rules requiring independence and impartiality.

         [¶28] We turn next to the narrowly-tailored prong of strict scrutiny. The Williams-Yulee Court explained that "narrowly tailored" does not mean "perfectly tailored."

The impossibility of perfect tailoring is especially apparent when the State's compelling interest is as intangible as public confidence in the integrity of the judiciary. . . . Here, Florida has concluded that all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary; banning all personal solicitations by judicial candidates is narrowly tailored to address that concern.

Williams-Yulee, 135 S.Ct. at 1671.

         [¶29] Judge Neely argues that "removing [her] for her religious beliefs and expression about marriage is fatally underinclusive, " and therefore not narrowly tailored. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), the United States Supreme Court found that the challenged ordinances were not narrowly tailored because they were underinclusive to the city's professed governmental interest in protecting the public health and preventing cruelty to animals. The ordinances, while prohibiting the Church of Lukumi's animal sacrifice, permitted many other types of animal deaths, like euthanasia of unwanted animals. Id., 508 U.S. at 543, 113 S.Ct. at 2232. Judge Neely attempts to draw parallels to her circumstances, arguing that a municipal court judge "may critique or praise . . . the Guzzo decision that brought same-sex marriage to Wyoming" or could "publicly disclose their views on controversial political issues" in a caucus-type election procedure. Judge Neely again mischaracterizes her conduct at issue. She is not subject to discipline merely because she has expressed her religious beliefs. She has gone one or two critical steps farther than that to say that she will not impartially perform her judicial functions with respect to parties the United States Supreme Court has held have a constitutional right to be treated equally. Obergefell, 135 S.Ct. at 2598, 2602 (due process clause and equal protection clauses of the Fourteenth Amendment guarantee same-sex couples the right to marry).

         [¶30] Judge Neely further argues that disciplining her would violate her free speech rights because the Commission would not have brought a disciplinary proceeding against a judge who expressed her willingness to follow the law on same-sex marriage, and therefore it is discriminating against her based on the content and viewpoint of her speech. But there would indeed be no basis for disciplining a judge who indicated her willingness to follow the law and thus demonstrated her impartiality toward parties. The action against Judge Neely is a response to her deeds, not her faith.

         [¶31] Judge Neely argues that others could perform marriages for same-sex couples, causing no disruption to their rights to marry, and the dissent relies heavily on the fact that same-sex couples will likely face no obstacles to getting married despite Judge Neely's refusal to perform their marriages. These contentions may be true, but they have no relevance to the decision whether she has violated any provision of the Code of Judicial Conduct. Even if we accepted the premise that allowing Judge Neely to opt out would have no effect on the rights of same-sex couples to marry, [8] the problem of the public's faith in judicial integrity remains. As Judge Posner explained in the context of a case decided under the Civil Rights Act of 1964, §§ 701(j), 703(a)(1), 42 U.S.C.A. §§ 2000e(j), 2000e-2(a)(1):

Mr. Rodriguez, a Chicago police officer, claims, I have no reason to doubt sincerely, that it violates his religious principles to guard abortion clinics. He is entitled to his view. He is not entitled to demand that his police duties be altered to conform to his view any more than a volunteer member of the armed forces is entitled to demand that he be excused from performing military duties that conflict with his religious faith . . . or than a firefighter is entitled to demand that he be entitled to refuse to fight fires in the places of worship of religious sects that he regards as Satanic. The objection to recusal in all of these cases is not the inconvenience to the police department, the armed forces, or the fire department, as the case may be, though that might be considerable in some instances. The objection is to the loss of public confidence in governmental protective services if the public knows that its protectors are at liberty to pick and choose whom to protect.
The public knows that its protectors have a private agenda; everyone does. But it would like to think that they leave that agenda at home when they are on duty-that Jewish policemen protect neo-Nazi demonstrators, that Roman Catholic policemen protect abortion clinics, that Black Muslim policemen protect Christians and Jews, that fundamentalist Christian policemen protect noisy atheists and white-hating Rastafarians, that Mormon policemen protect Scientologists, and that Greek-Orthodox policemen of Serbian ethnicity protect Roman Catholic Croats. We judges certainly want to think that U.S. Marshals protect us from assaults and threats without regard to whether, for example, we vote for or against the pro-life position in abortion cases.

Rodriguez v. City of Chicago, 156 F.3d 771, 779 (7th Cir. 1998) (Posner, C.J., concurring) (emphasis added). In Endres v. Indiana State Police, 349 F.3d 922, 926 (7th Cir. 2003), the Seventh Circuit upheld the termination of a state police officer who would not defend a casino because it would violate his religious beliefs, emphasizing

the need to hold police officers to their promise to enforce the law without favoritism-as judges take an oath to enforce all laws, without regard to their (or the litigants') social, political, or religious beliefs. Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical. Just so with police.

Id. at 927 (emphasis added).

         [¶32] Allowing Judge Neely to opt out of same-sex marriages is contrary to the compelling state interest in maintaining an independent and impartial judiciary. Judge Neely, like all judges, has taken an oath to enforce all laws, and the public depends upon an impartial judiciary, regardless of religious sentiment. "The objection is to the loss of public confidence in [the judiciary] if the public knows that its [judges] are at liberty to pick and choose whom to [serve]." Rodriguez, 156 F.3d at 779.

         [¶33] "The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." Bowen v. Roy, 476 U.S. 693, 699, 106 S.Ct. 2147, 2152, 90 L.Ed.2d 735 (1986). In Bowen, parents claimed that the government's requirement that they provide a social security number for their child in order to receive government benefits violated their sincerely held religious beliefs that the number would "rob the spirit" of their daughter. Id. at 696, 106 S.Ct. at 2150. The Court distinguished between beliefs and conduct, finding that the parents' issue implicated conduct and therefore was not entitled to absolute protection under the First Amendment. Id. at 699, 106 S.Ct. at 2152. It rejected the parents' claim, holding that "[t]he Free Exercise Clause affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures." Id. at 700, 106 S.Ct. at 2152.

         [¶34] Amici Curiae point out that in many cases, courts have required accommodation for religious beliefs. For instance, in American Postal Workers Union, San Francisco Local v. Postmaster General, 781 F.2d 772, 776 (9th Cir. 1986), the court held that Title VII of the Civil Rights Act of 1964 required the post office to determine reasonable accommodations for postal workers who believed that processing draft registration forms was contrary to their religious beliefs. But there, unlike in Rodriguez and Endres, there was no issue of public confidence in the neutrality of the clerks processing draft registrations. Amici Curiae also cite Haring v. Blumenthal, 471 F.Supp. 1172 (D.C. Cir. 1979), another Title VII case in which the court held that the Internal Revenue Service was required to allow its employee to disqualify himself from handling applications for exemptions from groups whose practices were abhorrent to his religious beliefs. There, the court rejected the argument that the integrity of the Internal Revenue Service was at stake, holding that "[i]t is difficult to see how that stand could impair taxpayer confidence in the tax system or the impartiality of the IRS." Id. at 1183. In contrast, in Judge Neely's case, public confidence in the judiciary is the central issue.

         [¶35] Perhaps the seminal case representing government accommodation to freedom of religion is Wisconsin v. Yoder, 406 U.S. 205, 208, 92 S.Ct. 1526, 1529, 32 L.Ed.2d 15 (1972). In Yoder, the Court found unconstitutional Wisconsin's application of its compulsory school attendance law to Amish parents who believed that any education beyond eighth grade undermined their entire, religiously-focused way of life. 406 U.S. at 235-36, 92 S.Ct. 1543. The Yoder opinion emphasized "the interrelationship of belief with [the Amish] mode of life, the vital role that belief and daily conduct play in the continued survival of Old Order Amish communities and their religious organization, " and how as a result compulsory high-school education would "substantially interfer[e] with the religious development of the Amish child and his integration into the way of life of the Amish faith community." Id. at 218, 235, 92 S.Ct. at 1534, 1543. The Court held compulsory attendance at any school-whether public, private, or home-based- prevented these Amish parents from making fundamental decisions regarding their children's religious upbringing and effectively overrode their ability to pass their religion on to their children, as their faith required. Id. at 233-35, 92 S.Ct. 1542-43.

         [¶36] There are obvious distinctions between Judge Neely's case and Yoder. She is required by the Wyoming Code of Judicial Conduct to perform a ministerial judicial function in an impartial manner. Unlike the Amish in Yoder, occasionally performing this function does not threaten her very "way of life" by impacting a distinct community and life style. Yoder emphasized that its holding was essentially sui generis, as few sects could make a similar showing of a unique and demanding religious way of life that is fundamentally incompatible with any schooling system. See Yoder, 406 U.S. at 235-36, 92 S.Ct. at 1543. Judge Neely can make no such showing. Moreover, in Yoder, the Amish parents had been criminally convicted for violating Wisconsin's compulsory school attendance law. Id. at 207, 92 S.Ct. at 1529. Judge Neely is not compelled to serve as a part-time circuit court magistrate and does not face criminal prosecution.

         [¶37] Neither Judge Neely nor Amici Curiae direct us to any case in which accommodation for religious beliefs has been required when the requested accommodation would undermine the fundamental function of the position. "The First Amendment . . . gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710, 105 S.Ct. 2914, 2918 (1985) (citations omitted). There is no less restrictive alternative than discipline for Judge Neely that would serve the compelling state interest in judicial integrity.

         [¶38] Judge Neely's refusal to perform marriage ceremonies for same-sex couples, in spite of the law recognizing their right to be married, implicates the compelling state interest in maintaining the integrity, independence, and impartiality of the judiciary. Imposing discipline on her for such conduct is not underinclusive or overbroad. We will address the scope of the discipline necessary and permissible under the narrowly-tailored standard below. See infra ¶¶ 72-75.

         II. Does the Wyoming Constitution permit this Court to discipline Judge Neely for announcing that her religious beliefs prevent her from officiating same-sex marriages?

         [¶39] The Wyoming Constitution can offer "broader protection than the United States Constitution." Andrews v. State, 2002 WY 28, ¶ 31, 40 P.3d 708, 715 (Wyo. 2002); see also O'Boyle v. State, 2005 WY 83, ¶ 23, 117 P.3d 401, 408 (Wyo. 2005). "Recourse to our state constitution as an independent source for recognizing and protecting the individual rights of our citizens must spring not from pure intuition, but from a process that is at once articulable, reasonable and reasoned." Bear Cloud v. State, 2014 WY 113, ¶ 14, 334 P.3d 132, 137 (Wyo. 2014) (quoting Saldana v. State, 846 P.2d 604, 622 (Wyo. 1983) (Golden, J., concurring)).

         [¶40] Judge Neely offers an articulable, reasonable, and reasoned argument for considering whether Wyoming Constitution, article 1, section 18 and article 21, section 25 provide greater protection than does the United States Constitution.[9] They provide:

The free exercise and enjoyment of religious profession and worship without discrimination or preference shall be forever guaranteed in this state, and no person shall be rendered incompetent to hold any office of trust or profit, or to serve as a witness or juror, because of his opinion on any matter of religious belief whatever; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state.

Wyo. Const. art. 1, § 18. Judge Neely points out that this provision is significantly broader than the similar provision in the United States Constitution―"but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." U.S. Const. art. VI.

Perfect toleration of religious sentiment shall be secured, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.

Wyo. Const. art. 21, § 25. In contrast, the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . . " U.S. Const. amend. I.

         [¶41] In construing the Wyoming Constitution, we follow the same rules as those we apply to statutory interpretation. Our "fundamental purpose is to ascertain the intent of the framers." Cathcart v. Meyer, 2004 WY 49, ¶ 39, 88 P.3d 1050, 1065 (Wyo. 2004) (citations omitted). Judge Neely argues that these provisions in Wyoming's Constitution are broader than the First Amendment of the United States Constitution, and broader than those of other states. She further directs us to the debates during the constitutional convention, which indicate article 1, section 18 was adopted in conjunction with the defeat of a proposed amendment, "aimed at the state's Mormon population, that would have prohibited anyone who entered into or believed in polygamy from voting, holding public office, or serving as a juror." Robert B. Keiter & Tim Newcomb, The Wyoming State Constitution, at 69 (2011).[10] Courts of other states with similar constitutional language have held that their state constitutions provided stronger protection than the federal constitution. See First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174, 224 (Wash. 1992); State v. Hersberger, 462 N.W.2d 393, 397 (Minn. 1990).

         [¶42] The language of Wyoming Constitution article 1, section 18 and article 21, section 25 may offer broader protections than does the United States Constitution, but we do not find that the protections they may offer are applicable to Judge Neely's circumstances here. That is because neither her opinion on matters of her religious belief, nor her religious sentiment, are the focus of the state action.

         [¶43] Referring to the debates of the constitutional convention, Judge Neely asserts that this Court should conclude that, "just as a Mormon judge who believes in polygamy cannot be excluded from judicial office because of her beliefs about marriage, neither may Judge Neely or others be expelled as municipal judges because of their sincere beliefs about that issue." This argument ignores the important distinction between the freedom to believe and the freedom to act. "While the freedom to believe is absolute, the freedom to act cannot be. 'Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.'" Trujillo v. State, 2 P.3d 567, 576-77 (Wyo. 2000) (quoting Cantwell, 310 U.S. at 304, 60 S.Ct. at 903). In Trujillo, we rejected the appellant's challenge to state drug laws on both United States and Wyoming constitutional grounds, and we held the notion that compliance with the law could be "contingent upon the law's coincidence with his religious beliefs, " thus making him "a law unto himself, " would contradict "both constitutional tradition and common sense." Trujillo, 2 P.3d at 575 n.4, 577 (quoting Smith, 494 U.S. at 885, 110 S.Ct. at 1603). The Wyoming Constitution does not give Judge Neely the prerogative to perform her judicial functions contingent upon the law's coincidence with her religious beliefs.

         [¶44] Just like the county clerk in Miller v. Davis, 123 F.Supp.3d 924, 944 (E.D. Ky. 2015), appeal dismissed, cause remanded by Miller v. Davis, Nos. 15-5880, 15-5978, 2016 WL 3755870 (6th Cir. July 13, 2016) (finding county clerk must issue marriage licenses to same-sex couples), 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. However, her religious convictions cannot excuse her from performing the duties that she took an oath to perform . . . ." Id. "The State is not asking her to condone same-sex unions on moral or religious grounds, nor is it restricting her from engaging in a variety of religious activities." Id. Judge Neely is not being "molested . . . on account of [her] mode of religious worship." Wyo. Const. art. 21, § 25.

         [¶45] The Alabama Supreme Court rejected a similar argument by Chief Justice Roy Moore, when he was removed from his position as a consequence of his refusal to comply with a federal court order enjoining him to remove a monument to the Ten Commandments that he had placed in the rotunda of the Alabama Judicial Building. Moore v. Judicial Inquiry Comm'n of State of Alabama, 891 So.2d 848, 851 (Ala. 2004). Justice Moore argued that he was being removed from office because of a "religious test, " in violation of the Alabama Constitution[11] and the free exercise clause of the United States Constitution. The court cited with approval two federal courts which

concluded that this case is not about a public official's right to acknowledge God, as Chief Justice Moore contends. Rather, this case is about a public official who took an oath to uphold the Constitution of the United States and then refused to obey a valid order of a United States District Court holding that the placement of the monument in the Judicial Building violated the Establishment Clause of the First Amendment to the United States Constitution.

Id. at 859.

         [¶46] It is likely correct, as Judge Neely contends, that "a Mormon judge who believes in polygamy cannot be excluded from judicial office because of her beliefs about marriage, " but if a judge broke the law against polygamy by maintaining multiple marriages, she would be removed as a judge because she broke the law, not because of her beliefs. See, e.g., In re Steed, 131 P.3d 231, 232 (Utah 2006) (The court removed the judge because his multiple marriages were contrary to law, holding "it is of little or no consequence that the judge may believe a criminal statute is constitutionally defective.") Similarly, Judge Neely has done more than express her opinion on a matter of religious belief. She has taken the position that, although she has sworn to "support, obey and defend" the constitutions of the United States and Wyoming, when it comes to same-sex marriages, she will decline to do so. Judge Neely is not being disciplined "because of [her] opinion on any matter of religious belief, " she is being disciplined because of her conduct. Thus, Wyoming Constitution article 1, section 18 and article 21, section 25 are not violated by such discipline.

         [¶47] Our conclusion is further reinforced by an examination of the entire Wyoming Constitution, for "[e]very statement in the constitution must be interpreted in light of the entire document, with all portions thereof read in pari materia." Cathcart, 2004 WY 49, ¶ 40, 88 P.3d at 1065-66. In addition to protecting religious freedom, our constitution recognizes the importance of equal rights for all.

         [¶48] "In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are created equal." Wyo. Const. art. 1, § 2. "No person shall be deprived of life, liberty or property without due process of law." Wyo. Const. art. 1, § 6.

Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.

Wyo. Const. art. 1, section 3. The Wyoming Constitution also contains its own variation of the federal establishment clause. See Wyo. Const. art. 1, § 19 (Appropriations for sectarian or religious societies or institutions prohibited); Wyo. Const. art. 7, § 12 (Sectarianism prohibited). "Considering the state constitution's particular call for equal protection, the call to recognize basic rights, and notion that these particular protections are merely illustrative, the Wyoming Constitution is construed to protect people against legal discrimination more robustly than does the federal constitution." Johnson v. State Hearing Examiner's Office, 838 P.2d 158, 165 (Wyo. 1992). Judge Neely would have us find, not only that the religious liberty provisions of the Wyoming Constitution provide greater protections than the United States Constitution provides, but also that they trump all other provisions of the Wyoming Constitution. That is contrary to the rules of constitutional interpretation.

         [¶49] Applying our rule that, in interpreting the constitution, "no part will be inoperative or superfluous, " Geringer v. Bebout, 10 P.3d 514, 520 (Wyo. 2000), we could not read the provisions recognizing religious liberty to render those provisions recognizing equal rights and due process to be inoperative or superfluous. Judge Neely contends that the religious freedom provisions of the Wyoming Constitution entitle her to act in accordance with her religious beliefs, so long as they do not "foster[] licentiousness or jeopardize[] public safety." Such a rule would permit her, and any other judge, to apply the law in accordance with their individual views on what "divine law" required, to the exclusion of any other right under the Wyoming Constitution. That is an untenable position.

Can a man excuse his practices . . . because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Reynolds v. United States, 98 U.S. 145, 166-67, 25 L.Ed. 244 (1878).

         [¶50] Further, the broad reading of the Wyoming constitutional provisions recognizing freedom of religion that Judge Neely urges upon us would also require us to find that those provisions of the state constitution trump the federal due process and equal protection rights that the United States Supreme Court relied upon in Obergefell, 135 S.Ct. at 2602-03. If we held that freedom of religious opinion meant no state official in Wyoming had to marry a same-sex couple if it offended his or her religious belief, the right of same-sex couples to marry under the United States Constitution would be obviated. "The State of Wyoming is an inseparable part of the federal union, and the constitution of the United States is the supreme law of the land." Wyo. Const. art. 1, § 37.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the ...

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