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),
WYOMING COMMISSION ON JUDICIAL CONDUCT AND ETHICS (Respondent).
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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Justice, delivers the opinion of the Court; KAUTZ, Justice,
files a dissenting opinion, in which DAVIS, Justice, joins.
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.
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
4. Did Judge Neely violate the Wyoming Code of Judicial
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.
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. 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.
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).
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.
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.
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),
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
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
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.
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
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
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
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.
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.
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.
Judge Neely contends that removing 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.
Does the United States Constitution permit this Court to
discipline Judge Neely for announcing that her
religious beliefs prevent her from officiating same-sex
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). 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.
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
Smith, 494 U.S. at 879, 110 S.Ct. at 1600 (citations
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).
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.
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.
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. 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)).
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.
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).
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)
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.)
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.
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
We turn next to the narrowly-tailored prong of strict
scrutiny. The Williams-Yulee Court explained that
"narrowly tailored" does not mean "perfectly
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.
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).
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
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,  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. §§
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
Id. at 927 (emphasis added).
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.
"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.
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.
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.
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
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
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
Does the Wyoming Constitution permit this Court to discipline
Judge Neely for announcing that her religious beliefs prevent
her from officiating same-sex marriages?
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.,
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. 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
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.
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). 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.
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.
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
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.
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 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.
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.
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.
"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
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
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
Reynolds v. United States, 98 U.S. 145, 166-67, 25
L.Ed. 244 (1878).
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