by Mike Andrew -
SGN Staff Writer
Thurston County Superior Court Judge Gary Tabor has notified court personnel that he will not marry same-sex couples. Tabor's judicial assistant, Kristal Rowland, confirmed this to SGN on December 20.
According to a Thurston County employee who asked not to be identified by name, the judge made his position known at a December 5 meeting of judges and administrative staff.
At the meeting, senior staff indicated that the next day would likely be very busy, because it would be the first day that Gay and Lesbian couples could apply for marriage licenses after the passage of Referendum 74. According to SGN's source, Tabor said at the meeting that he would 'not be comfortable' marrying same-sex couples.
Called for clarification, Superior Court administrator Marti Maxwell told SGN that Presiding Judge H. Christopher Wickham had instructed her that 'this is just an availability issue, nothing more than that.'
'Judges take weddings as available,' Maxwell said. 'Some only do evenings, some only do weekends, some will even take out-of-county weddings. My boss [Wickham] says it's not county business, it's not court business - it's up to the judge.'
Asked if a judge's refusal to marry an entire class of people was really just 'an availability issue,' Maxwell replied, 'I can't speak to that.'
The county employee who spoke with SGN was reminded of the notorious 2009 incident in which Louisiana justice of the peace Keith Bardwell refused to marry a mixed-race couple. According to Tara Bennett, the reporter who broke the story, Bardwell was also advised by his attorney to say that he simply was 'not available' to marry interracial couples.
NO JUDICIAL EXEMPTION
The state's Marriage Equality Act, which became law after Referendum 74 was approved by voters, has a blanket exemption for religious officials who object to same-sex marriages.
'No regularly licensed ordained minister or any priest, imam, rabbi, or similar official of any church or religious denomination is required to solemnize any marriage,' the law says.
Tabor was educated at the conservative Oklahoma Christian College (now University), according to his official biography on the Thurston County Superior Court website, and he might well have religious objections to same-sex marriage, but judges and other civil officials do not enjoy the same exemptions from the law as religious officials do.
In fact, Article 4, Section 28 of the Washington State Constitution requires every judge to discharge all his or her duties 'impartially' and 'to the best of his ability.'
While judges are required to swear in writing to perform their duties and to file a copy of their oath with the Secretary of State, the Secretary of State's office has 'no oversight' over judges, says attorney and Co-Director of Elections Katie Blinn.
'It's meant as a record-keeping provision,' she explained, 'so if anyone wants a copy of the oath they have somewhere to go.'
JUDGES 'HARD TO COMPEL'
Blinn added that if a couple wished to force Tabor to marry them, they could sue for a writ of mandamus - essentially a court order for Tabor to perform his legal duty - but that it would be easier just to find another judge.
Dave Ammons, communications director for Secretary of State Sam Reed, noted that county auditors are required to issue marriage licenses to same-sex couples 'or to provide another auditor who will issue the license, so that all couples are served,' but that judges are 'in a different category.'
'It's hard to compel a judge to do much of anything,' Reiko Callner of the state Commission on Judicial Conduct told SGN, and the Judicial Code of Conduct does not require judges to marry anyone.
Nevertheless, she said, 'there is a prohibition against discrimination in the code. Section 2.3 prohibits bias and prejudice, Section 2.3A requires judges to act without bias or prejudice, and 2.3B prohibits them from manifesting bias or prejudice.'
BIAS COMPLAINT POSSIBLE
Callner added that 'sexual orientation is a protected class in state law,' and that might give a same-sex couple the basis for a bias complaint against a judge who refused to marry them. 'Public accommodations laws have also been enforced against courts,' she noted.
Couples who believe they have been discriminated against by a judge may file a complaint with the Commission on Judicial Conduct, Callner said, but the process is complicated and 'designed to be deliberative and to protect both judges and complainants.'
'The issue has not come up yet in this state, but it did come up in New York, because they've had marriage longer than we have,' Callner told SGN.
'There was a case before their Commission on Judicial Ethics in January 2012. Essentially, they punted. They noted that the question 'raises unsettled and controversial issues.' That's not very helpful.'
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