The plaintiffs in the lawsuit are asking the court to rule that requiring magistrates to solemnize same-sex marriage is unconstitutional. They also hope to reinstate Smoak, who claims he was not reappointed because of his public statements against performing same-sex marriages.
Crowell said there is little precedent for this case, but he was surprised that so few court cases have addressed this issue — despite public officials raising objections as states have legalized same-sex marriage.
Crowell said the closest comparison would be police officers who asked to be exempted from arresting protesters at abortion clinics. The courts determined the officers could be fired or disciplined for not performing their duties, he said.
“The courts have said that the very nature of law enforcement or firefighting or other protective services requires public confidence that officers will protect everyone the same — even if the officers hold different beliefs,” Crowell said.
Berger's bill addresses the issue by requiring the chief district judge to notify the Administrative Office of the Courts, which oversees all employees in the state court system. The office will assign another magistrate to perform the marriage.
Allowing magistrates to pick and choose parts of their job responsibilities to carry out could create a negative perception, Crowell said.
“The chief district judge and state court officials also need to consider the appearance of allowing some magistrates to not perform a duty of the office and the message that sends to the public about the courts treating all citizens the same,” he said.
He said the Administrative Office of the Courts has stated that court officials cannot choose which laws to enforce based on their individual beliefs.
“It has said that a magistrate who refuses to perform a civil marriage ceremony, based on the magistrate’s objection to same-sex marriage, would be violating the magistrate’s oath of office and also would be violating the code of judicial ethics that applies to magistrates as well as judges.”