The case involves Judge Ruth Neely who has served with distinction for 21 years as the municipal judge in Pinedale, Wyoming. Since municipalities have no authority either to issue a license or solemnize a marriage, you would think that she’s unaffected by all the hoopla over same-sex marriage.
But you would be mistaken. In a chillingly reasoned opinion, the Wyoming Commission on Judicial Conduct and Ethics (CJCE) wants to remove her from her job and disqualify her for service anywhere in the Wyoming judiciary.
The story began on a cold Saturday morning in December, 2014. Shortly after the 10th Circuit Court of Appeals declared Wyoming marriage statutes unconstitutional, a reporter from the Sublette Examiner called Mrs. Neely to ask if she was “excited” to perform same-sex marriage.
It was only because she had accepted a second, part-time job as Circuit Court Magistrate, that this question had any relevance at all. In that unpaid position, she was authorized, but not obligated, to solemnize marriages.
She gave a perfectly reasonable reply. She said that if she were ever asked (she never has been) she would help the couple find someone to do the job. However, she would “not be able to do” it herself.
Based on this solitary exchange, about a hypothetical question, the CJCE has been waging what they call a “holy war” against her for more than a year. They are not content to send her a letter clarifying what she should have done, nor even a letter of reprimand. Instead, they are levelling the greatest possible punishment allowable by law.
Many legal points have been made in her defense. The most thorough and factual would be the two briefs that her lawyers filed before the Supreme Court on April 29 and July 8, 2016. You can find them at www.courts.state.wy.us/ (case #J-16-0001). I’m not going to rehash them here. What I do want to explore here, are a few implications of the CJCE arguments.
One central allegation against Judge Neely is the charge of bias. The CJCE claims that merely by publicly affirming the Biblical teaching on homosexual acts, she immediately and irrevocably made it impossible to judge fairly or impartially in any matter whatsoever.
They make much of a private letter in which she discussed a number of Biblically named sins. The CJCE was so shocked that she would agree with the Bible that her religion (Lutheran Church—Missouri Synod) was called “repugnant” in open court.
Let’s think about this for a minute. Note, first, that the idea of “sin” is not a legal category. It is a theological category. Sins are against God. Crimes are against the government. For centuries America has known that something may be a sin without being illegal. Drunkenness, adultery, greed and blasphemy immediately come to mind. This is the very essence of the church/state distinction.
Every judge in America has been perfectly capable of applying the law equitably and fairly to people who engage in all kinds of sins without confusing sins with illegal activity. But now the CJCE wants Wyoming to believe that one sin, and one sin only, can no longer be called “sin” without threatening the entire judicial system.
If this reasoning is true, then it should apply to every judge who thinks something is a sin which the government has declared legal. Do you believe that drunkenness is a sin? Well, since there’s no law against it, you’re fired! You think that adultery is a sin? You cannot be a judge anywhere in Wyoming. Who will be left to sit on the bench? Only those who have no moral compass beyond the letter of the law.
A second major point that the CJCE makes is that Judge Neely, “by announcing her position against marriage equality,” openly spoke against the law of the land. Here is another curious position.
Does the CJCE really mean to say that any public opposition to any law should immediately disqualify a judge from office? The Commission might want to think that one through a bit more.
The fact of the matter is that prior to October 6, 2014, same-sex marriage was against the law of the land. If the Commission is right, any and every judge who spoke in favor of same-sex marriage prior to then, should have been immediately removed from the bench.
This would be rather awkward since Wendy Soto, even as the Executive Director of the CJCE, was on the board of Wyoming Equality and agitating for same-sex marriage long before it was legal. More than awkward, the implications of this would be staggering.
Should we drive all pro-life judges from the bench because of Roe v. Wade? Should we remove all judges who speak in favor of gun control because of the 2nd Amendment? While NARAL might favor the first, and the NRA, the second, nobody who understands the importance of free speech could seriously want either.
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| Ned Donovan - LinkedIn |
And this brings up a third point that we should consider carefully. The CJCE goes to great lengths to argue that Judge Neely’s remarks to Ned Donovan were a “public statement.” Presumably, she would not be in trouble if she had said the exact same words in private.
But what exactly constitutes “public speech?” Certainly a judge’s remarks from the bench are official and public. Is a personal conversation with a reporter also public? If he had been seeking to protect his sources, nobody would ever know her name. But Ned Donovan was not looking for a story. He was looking to sack a judge.
The CJCE argues that since he identified himself as a reporter and was writing a story, Judge Neely should have known that this was public speech. What does this position do to the news industry’s right to protect its sources? If the media value their ability to get honest answers, they might want to speak out on this point.
Is the CJCE arguing that Judge Neely has the right to free speech, only as long as not too many people hear it. Does she have freedom of speech but not freedom of the press? This got me thinking. If she had said these things in a Sunday School classroom, would she still be charged with judicial misconduct? What about if she had said them in a restaurant while Ned Donavan was sitting in an adjacent booth?
What about if she had written these remarks down before same-sex marriage became legal and Mr. Donavan published them afterwards? Should she then be hauled before the Commission and asked to publicly recant? The Spanish Inquisition was a really bad idea. Let’s not try it again.
This may all seem far-fetched, but it is not. In Atlanta Chief Kelvin Cochrane was fired for a self-published booklet that he wrote for his men’s Bible Study. Is Wyoming going to adopt Atlanta’s values?
If all of this sounds like the abridgment of Judge Neely’s free speech, it is. But never fear. The CJCE confidently asserts that this is permissible under the United States Constitution because it applies only to judges. Judges are prohibited from speaking publicly about their deepest held convictions, but no one else. How comforting!
This raises two more questions: First, if judges are not permitted to speak publicly about marriage (unless they are parroting the orthodoxy of the CJCE) what other topics will become taboo in the months and years to come? Nobody is saying yet. But I am sure we will be told when they are good and ready.
Second, while this draconian abridgment of free speech is limited to judges today, by what legal theory does the CJCE exempt county clerks, teachers, public health workers or any other employee of the State of Wyoming?
Their absolute silence on this point speaks volumes.
On August 17 the Wyoming Supreme Court is going to decide whether to keep Judge Neely on the bench or remove her -- and everyone who shares her convictions -- from our state’s judiciary. Let’s hope that they protect our freedoms to think, speak and act. If they don’t, it will not be the end of the matter. It will only open the flood gates to a million more questions -- and a lot less freedom.
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