Judge Neely v. Wyoming Judicial Conduct & Ethics Commission

Judge Neely held two judicial positions, one as a municipal judge not authorized to solemnize weddings and another as a part-time circuit court magistrate authorized to perform wedding ceremonies for couples who independently contacted and paid her. Wyoming magistrates may decline to perform a wedding for personal reasons, no matter how trivial.

After same-sex marriage became legal in Wyoming, a local newspaper reporter asked Judge Neely whether she was “excited” about performing same-sex weddings. Judge Neely responded that her religious beliefs would not allow her to perform a same-sex wedding ceremony, but that other magistrates were willing to do so.

The record shows that no same-sex couple had requested Judge Neely to perform a wedding ceremony, and that she was willing to refer any request to other magistrates willing to perform same-sex weddings. Nonetheless, the Wyoming Commission on Judicial Conduct and Ethics brought disciplinary charges against Judge Neely and, after a hearing, recommended her removal from both judicial positions. Judge Neely appealed to the Wyoming Supreme Court.

In March 2017, the Wyoming Supreme Court unanimously rejected the government’s request for extreme sanctions, allowing Judge Neely to keep both of her judicial positions and reducing her punishment to a public censure. But a bare majority of the Court, in a 3-2 vote, ruled that she cannot continue performing any marriage ceremonies unless she’s willing to violate her faith by personally performing same-sex ceremonies.

In August 2017, Judge Neely appealed to the U.S. Supreme Court. The Center filed an amicus brief urging the U.S. Supreme Court to hear Judge Neely's appeal. he Wyoming Supreme Court's decision effectively creates a religious test for persons seeking to hold the office of magistrate. The Center's brief argues that Court’s intervention is needed not only to protect Wyoming judges and attorneys, but also to protect judges and attorneys nationwide from disqualification because of their religious beliefs. Any whiff of a religious test is cause for alarm. Tests targeting religious dissenters for exclusion from public office represent a regressive embrace of religious intolerance. The Founders had expressly prohibited a religious test for federal office in Article VI, clause 3, of the 1787 Constitution, and many states now include religious-test prohibitions in their state constitutions. Through the Religion Clauses of the First Amendment, the U.S. Supreme Court had also prohibited states from requiring religious tests for public officeholders. The Free Exercise Clause violation is compounded here because Wyoming allows magistrates to refuse to perform a wedding ceremony for various secular reasons but punishes magistrates who cannot perform a wedding ceremony for reasons of religious conscience.

The Court denied Judge Neely's cert petition in January 2018.