The Same Sex Rights Debate and Judicial Ethics

by Michael Roosevelt

This course was divided into two-parts. The first part was an overview of same-sex relationships across the United States; the second part explored ethical issues facing judges handling same-sex dissolution and divorce cases.

In the first part of the course, Todd Brower, Director of Judicial Education, The Williams Institute, UCLA School of Law, offered a snapshot of states that recognize or do not recognize same sex marriages, civil unions or domestic partnerships, where gay and lesbian families live and their average family size. Facts about same sex couples were also provided with implications for developing future judicial education programs. For example, he reported that Utah, Mississippi, and South Carolina are among the top ten states in the proportion of same-sex couples who are raising families. Surprisingly, California is not among the top ten states.

The second part of the course, structured as a debate between Judges Robert Pirraglia and Karl B. Grube (Ret), tackled some of the ethical issues and questions judges confront in same-sex marriage or domestic partner cases. Since few states recognize same-sex marriage or domestic partnership, courts are in a conundrum –what to do in a case where a married same sex couple wants to petition for divorce in a state where same-sex marriage is not recognized? In such a case, can the judge legally refuse to hear a case based on non-recognition of same sex marriage? In that same scenario, can the judge, a member of the Roman Catholic Church ethically remove him/herself from hearing the case based on religious grounds? While both judges answered these questions differently, they agreed that the judicial code of ethics may provide some guidance when such questions arise.

In conclusion, the current state-by-state approach to the recognition of same sex relationships only makes handling such cases confusing. However, there is an opportunity for state judicial educators to develop programs to educate the bench and court employees about the topic of same sex relationships, whether or not there is state recognition.