Law unclear on judges' obligation to preside at gay marriages

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SEATTLE — Washington's amended marriage law exempts pastors, rabbis, Imams and other clergy from having to perform same-sex weddings if they aren't so moved.

But for judges, justices and some court commissioners, who are also authorized to marry people in this state, the law is much less clear.

Weeks after same-sex marriage became legal in Washington, questions are being raised over what obligations -- if any -- judges have to marry gay couples when doing so assails their own religious or other personal beliefs.

In the days before the state's same-sex marriage law took effect last month, Thurston County Superior Court Judge Gary Tabor told fellow judges and his staff that he was not comfortable marrying gay couples.

Along with the court's seven other judges, he is on a weekly rotation to perform marriages outside court hours.

He said his remarks to fellow judges were not meant as a political or legal stance but rather to ensure that there would be a judge available to cover any weddings assigned to him that he preferred not to officiate.

"What I've said is that I have philosophical and religious feelings that I do not wish to perform such marriages," he said in a recent telephone conversation.

First elected to the Thurston County bench in 1996, Tabor is a graduate of Oklahoma Christian College, according to an online court biography.

"My understanding is that a judge is not required to perform any marriage; he may choose to do so to accommodate the public," he said. "As far as I know, the other judges here have indicated they would perform such marriage without question. People will be accommodated."

While Referendum 74 amended the state's marriage laws to include gay couples among those who may legally wed, it did not change who can perform these weddings.

That's limited to active or retired justices and judges and some court commissioners, as well as licensed or ordained religious people, which includes regular folks who, for a fee, can receive ordination from websites online.

Elected officials, unless ordained, may not perform marriages in this state.

In addition to state laws against discrimination, judges are subject to an even higher bar -- the code of judicial conduct -- which requires them to discharge their duties without bias or prejudice.

While the state's marriage law authorizes who can perform marriages, it does not require anyone to. Performing weddings is not a judicial duty but a discretionary function judges conduct on their own time and are compensated for privately.

"Judges may perform them or not," said Thurston County Court administrator Marti Maxwell.

But Anne Levinson, a retired Seattle judge who was also a key adviser in the campaign to legalize same-sex marriage, said that "if a judge says he or she is available to perform weddings, then he can't decline some of them based on any reason that has the appearance of bias or prejudice."