The conclusion of the Commission on Judicial Conduct and Ethics in this case is that the cost of providing public service as a judge is to relinquish the ability to make “statements” (Order, p. 4) that the Commission considers (in its seemingly unbounded discretion) insufficiently supportive of same-sex marriage. This dichotomy, which posits that a judge cannot faithfully discharge the judicial function without bias if she expresses her religious beliefs about marriage, is a false one. Indeed, it is contrary to the overwhelming and consistent practice in the United States of accommodating, wherever possible, the expression of religious views and the exercise of religious commitments. In this brief, amid summarize some of the many legal accommodations made to allow citizens to live out their faith in all aspects of their lives, which have been understood to be entirely consistent with the ability of governments to advance valid state interests. This recital will also make clear that government employees, state actors and public officials have been granted such exemptions so that the choice proposed by the Commission—relinquish rights or serve as a judge—will be unnecessary.
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