Question of judicial duties vs. powers weighed locally, statewide

CAMBRIDGE, Ohio -- After a local man first brought light to the issue in a social media post over the weekend, many have questioned whether or not officials in Cambridge and Guernsey County are breaking the law by abstaining from solemnizing marriages. 

In a conversation with AVC News on Wednesday, a spokesman for Ohio Attorney General Mike DeWine referred to section 3101.08 of the Ohio Revised Code, which reads: "An ordained or licensed minister of any religious society or congregation within this state who is licensed to solemnize marriages, a judge of a county court in accordance with section 1907.18 of the Revised Code, a judge of a municipal court in accordance with section 1901.14 of the Revised Code, a probate judge in accordance with section 2101.27 of the Revised Code, the mayor of a municipal corporation in any county in which such municipal corporation wholly or partly lies, the superintendent of the state school for the deaf, or any religious society in conformity with the rules of its church, may marry any persons who are not prohibited by law from being joined in marriage [emphasis added]."

The wording of Ohio's law seems to suggest that solemnizing marriages is a power, not a prescribed duty, of elected and ordained officials; however, an arm of the Ohio Supreme Court is now examining whether solemnizing a marriage license is an ethical duty of municipal and county judges.

Richard Dove, Director of the Ohio Supreme Court's Board of Professional Conduct, said that the board has received two requests to analyze the issue of whether judges have a duty to perform such ceremonies under the Code of Judicial Conduct. Dove said that the requests were made earlier this month, before concerns involving officials in Guernsey County were raised.

Across Ohio, the question of judicial duties versus judicial powers is not new. Earlier this month, Toledo Municipal Judge C. Allen McConnell declined to perform marriages and Clark County Probate Judge Richard Carey refused to have his name appear on marriage licenses. Both have stated they oppose same-sex marriage on religious grounds.

By contrast, Mark Schweikert, Executive Director of the Ohio Judicial Conference, said he has never heard of a case where a county's judges do not have the time or resources to perform civil marriages, as is the stated case in Guernsey County. Schweikert said, while there is no precedent to suggest that judges are required to provide an alternative method for receiving civil marriage ceremonies, the question has never before been asked.

Dove said that the Board of Professional Conduct is expected to issue an advisory opinion on the matter on Aug. 7.

AVC News is awaiting comment from the Ohio Ethics Commission as to whether or not similar ethical questions have been raised for elected officials in the executive branch, such as mayors.