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Test Acts Literal in Wyoming

The most recent instance of persecution for refusal to participate in the homosexual agenda is so legally dubious, indeed prima facie illegal, that one thinks, "This can't work." But that depends on the Wyoming State Supreme Court.

Ruth Neely was until recently a small-down municipal judge and circuit court magistrate in tiny Pinedale, Wyoming. In 2014 a federal judge imposed homosexual "marriage" on the state of Wynoming. In her role of magistrate Neely is allowed (but according to her lawyers not required) to perform marriages. In her role as judge she does not even have authority to perform marriages but deals with things like traffic tickets.

Neely gave an interview to a newspaper in which she stated that she would not perform homosexual "marriages" due to her sincere religious beliefs about marriage.

This sparked an "ethics" investigation, and the vengeful ethics board demanded that she be removed from office for a variety of "ethics" violations merely for voicing these opinions. These violations include "prejudice based on sexual orientation," "acting improperly," and "refusing to uphold the rule of law."

The ethics board has even recommended that she be fined! The stories in the news all say things like "fines of up to $40,000," and I've been unable to find out exactly what this means. Presumably it means that someone else decides exactly how much to fine her, and the ethics board has set it up so that that person could fine her as much as $40K. It looks like there is no such thing as a jury trial or conviction before she would suffer such fines, though the case can be appealed to the state Supreme Court, which is what is happening right now. She's already been removed from her position both as a magistrate and as a judge, despite the fact that the judge position doesn't even allow her to perform marriages.

Let's get this clear: If Neely's lawyers are right, this persecution does not even have the color of law that Kim Davis's persecution had. No office's functions are being slowed or interrupted by Neely's refusal to conduct homosexual "marriages." In fact, no one has ever even asked her to do so! Conducting marriages for whoever comes through the door is not a part of her duties nor part of her job description. She would have discretion to refuse even a heterosexual couple. According to her lawyers, the law says that a magistrate, like a priest or other clergyman, may perform the ceremony of marriage! Not must. Not is required to. Not usually does. Not usually does as part of normal job duties. May. Here is the relevant statute, and it reads as Neely's lawyers quote it. It is of course possible that there is some other statute somewhere that lays out the duties of a magistrate and requires the magistrate to solemnize marriages, but so far I haven't seen any such quotation. In fact, Neely's lawyers state that the Commission who investigated this admitted that Neely isn't in general required to solemnize marriages! Neely's lawyers also list precedents in which magistrates have used their discretionary powers to refuse to solemnize marriages for various reasons, including "just not feeling like it" and limiting oneself only to performing marriages for friends and family.

This has been interpreted by a local newspaper to mean that "All judges are required to marry those who meet the legal requirements, unless there is a scheduling conflict or other problem. In those cases, prospective couples will be referred to other magistrates." But I have not seen any legal quotation supporting this claim. Indeed, the fact that the newspaper says "judges" and not "magistrates" calls into question the legal knowledge of the reporter!

The incredible legal flimsiness of all of this and the obviously vicious bias of the "ethics" committee has not prevented homosexual activists (and a mind-numbing number of news story readers) from chanting like deranged parrots, "If you aren't willing to do your job, you have to get another job." This was absurd enough in the case of Kim Davis, but in this case the claim that performing homosexual "marriages" is "part of the job" is a blatant falsehood even by the most narrowly positivistic legal standard.

To make matters even clearer, the state constitution of Wyoming has an explicit provision against disqualifying people from public office for religious beliefs--what one might call an anti-Test Act provision. It goes like this: "The free exercise and enjoyment of religious profession and worship without discrimination or preference shall be forever guaranteed in this state, and no person shall be rendered incompetent to hold any office of trust or profit, or to serve as a witness or juror because of his opinion on any matter of religious belief whatever,..."

The ethics committee is carrying out a new Test Act by stating that Neely must be removed from office for intending to refuse to exercise her discretionary powers to perform homosexual "marriages." Her intent to refuse was indicated in an interview and based upon her religious opinion. By the "ethics" board's reasoning, anyone who is a judge or magistrate in Wyoming and holds this opinion, and intends merely to refuse to endorse homosexual marriage because of this opinion, is now unfit for that public office. And such a person, having announced his opinion and intent, also deserves to be fined.

Ethics boards operate in a strange legal landscape. That they can exact fines when no jury trial has been held has often struck me as dubiously Constitutional. Doesn't the federal Constitution guarantee a jury trial? In criminal law, this right is extremely broad. In civil law, it is guaranteed when the amount in question is over $20. But apparently ethics boards, by trying matters that are neither civil law nor criminal law, gets around this and can even levy fines. While I acknowledge the need for a mechanism to punish corrupt judges and public officials, I have grave doubts as to whether this is a wise mechanism, as the abuse of this sweeping power in Neely's case illustrates.

At this point we need to recognize that the homosexual lobby is absolutely unconstrained by the rule of law. (Ironic, isn't it, that the claim against Neely is a refusal to acknowledge the rule of law?) Laws will be blatantly twisted and invented, as witness the Obama Administration's bizarre interpretation of such laws as Title IX in its bullying of North Carolina.

Neely had an easy legal out from performing homosexual "marriages." This should not even have been an issue. But the ethics board decided to hound her down anyway.

I get impatient these days with certain rather smug Christians who say that Christians in America have a "persecution complex" and that nobody in America is really suffering persecution. If what has happened to Neely and to the Kleins in Oregon, fined $135,000 over not baking a homosexual wedding cake, isn't persecution, what is it? Does it count as persecution only if it involves torture, throwing to lions, being burned at the stake? What? We are talking here not "just" about direct discrimination, not "just" about being fired from your job, not "just" about being forced to close a business, though all of those would, I believe, constitute forms of persecution. But we're also talking here about the government's fining people for refusing positively to endorse homosexual "marriage." If that isn't government persecution for moral or religious belief, then I simply don't know what is.

Supercilious Christians, stop telling your fellow Christians that there is no persecution in the United States. There is, and you're wrong, and you're smug.

As to what to do about it, contribute to the ADF and such organizations, look around to learn the legal protections in your own line of work, but don't expect them to be respected if the homosexual activists or transgender activists have power and want to roll over them. And pray.

Comments (13)


This is a great and important post. I wanted to highlight this section, as I see this more and more around the web:

"I get impatient these days with certain rather smug Christians who say that Christians in America have a "persecution complex" and that nobody in America is really suffering persecution."

It is almost as if Christians in America fetishize martyrs around the world and dismiss any other kind of suffering or persecution. Don't get me wrong -- we should honor and pray for brave Christian martyrs in places like the Middle-East and Africa who are dying for the faith. How that in any way diminishes the real oppression going on right here, right now is beyond me. The two are not mutually exclusive and just because there is a continuum of oppression and/or suffering doesn't mean American Christians like the Kleins or Judge Neely aren't suffering real harm as well.

Oh, she should sue the ethics board for a million dollars for defamation of character, harassment, and false accusations (that she is required to either perform defective pseudo-marriages or violate her religious beliefs). All it takes is one high-dollar win to shut up critics or make them afraid. This might be a good state to give it a try.

The Chicken

I hope that a federal lawsuit for a color-of-law violation of her first amendment rights will be put through after the state supreme court rules, MC. My guess is that it will help a lot in supporting a federal suit if the state supreme court agrees with Neely that the ethics committee has no case. That way, the interpretation of state law can be taken as settled by Wyoming's own Supreme Court, and if she sues federally her lawyers can argue that the ethics committee should have known that it was misinterpreting state law and was doing so in order to persecute her for her religious beliefs.

It would be interesting to know what state civil suits might also be possible, especially if she prevails at the state supreme court level.

I think I am going to be ill.

I agree with MC, and she shouldn't wait for the state supreme court. She sue, and for a lot more than a $million.

In addition, I am having a hell of a lot of trouble understanding what position an "ethics board" actually amounts to as a legal entity. Who erects such a thing? Is it the state legislature? I somehow doubt it. I admit to no actual knowledge of facts here, I am just working off of general knowledge. The only "ethics boards" I have ever heard of are internal to voluntary bodies, like the state medical association, for example. A person who refuses to kow-tow to a "fine" might be kicked out of the association, but the board cannot go and garnish wages, or something like that. Not so far as I have heard, anyway.

An internal committee to an employer (even a government employer, like a town's government) can indeed _recommend_ fines and removal of position - to someone who actually has the authority to impose such sanctions (Heck, they can recommend anything they like, including jail time or banishment to Mars). And, again, even if the town council (or whoever is legally responsible for appointing and removing judges) removes her from office, I STILL doubt they have legal authority to impose a fine absent a court of law. And, of course, their removing her from office would have to pass the sniff test under state law - and given the anti-test law, it's obvious such a move would NOT pass the sniff test in any way. Some superior court judge might have approved it just out of spite, of course, without any nod to actual LAW, because we are not really under the rule of law any more except at the sufferance of tyrants in robes. But hopefully the supreme court is under enough attention to avoid that particular insanity. Maybe.

Tony, thanks for motivating me to look back at how this ethics process works. It appears that the "commission" (that I call the ethics board in the main post) makes a recommendation _to_ the State Supreme Court. In that sense, I shouldn't really have referred to "appealing" to the State Supreme Court. It looks like the State Supreme Court *must* rule on the recommendations of the commission before they can be enforced against Neely. Presumably at that point, if they agreed with the fine recommendation, they would issue a court order for the fine.

But she has _already_ been suspended at least from her role as magistrate. Apparently somehow she can be suspended from some part of her duties even before the SC rules.

Generally in the legal profession (your state may vary) the ethics commission or board is set up by the Supreme Court of the state - well, technically by legislation giving the State Supreme Court authority to set it up under the Court's jurisdiction to regulate the practice of law and judges. So the commission generally acts as an agency of the Court. Sometimes this is also done through the State Bar (which is also usually subject to Supreme Court oversight). Of course, if the Court does something the legislature does not like, it can always pass legislation to reverse it.

What are the potential consequences if her suspension is upheld? I'm concerned this case could set a new and very unfavorable precedent that could be applied in about any employment. If holding these views makes one unfit to be a judge, it seems that could also be applied to other public servant roles ( teacher for example), and if the state can fire someone for these views them so can private employers.

Which might be fine in a world with no anti discrimination laws, but that is not the world we live in.

Otherwise, Wyoming may be one of the States where a ruth Neely type might just have a chance. I'm hoping for that.

I believe the commission is relying on a code of ethics clause that says something to the effect that a judge must not "manifest bias." Presumably what the clause really meant originally (I don't have a copy of the code at hand) is that a judge must not be biased *in the performance of his duties*. And the clause does include "sexual orientation" as one of the things a judge cannot "manifest bias" about. But since marrying people is not one of her normal, required duties anyway, the application of that clause is extremely dubious, especially since the commission cannot cite a single case in which she even allegedly "manifested bias" in her actual duties--I dunno, fining a homosexual person more for a parking ticket??

But that kind of thing is the clause they are using. What it would presumably take to spread this sort of thing more widely would be to interpret such clauses wherever they exist already to mean that the person can't _articulate views_ that allegedly "manifest bias" against homosexuals, and then fire anyone who does so. And if there isn't such a clause already in a handbook or whatever, employers could just insert it. "No one employed by this company can manifest bias against others on the basis of sexual orientation or gender identity."

"that a judge must not "manifest bias."

If I recall correctly similar claims were made about Kelvin's Cochran. That he displayed a bias and could no longer be trusted to be a leader. Between these cases, Obama's decree for public schools, and the ACLU suing to have the entirety of Mississippi's HB 1523 overturned (even the part that explicitly protect man-woman marriage believing churches from government penalty) it seems to me pretty well all the worst case foreseeable legal changes post Obergefell are already in play in the courts. That said, I am not a lawyer and maybe I am seeing more than is actually there (or less for that matter). Either way, it seems this (what the First Amendment now means after Obergefell) is going to be settled sooner than later. Probably in the next few years instead of decades.

I am just going to hope the Wyoming Supreme Court is sane and if this case goes all the way to the Supreme Court that 6 judges won't be able to bring themselves to write an opinion that basically implies the 3 that dissented from Obergefell are unfit to be judges because they "manifest bias". I don't know what a "manifest bias" precedent would mean in full, but it cannot be good.

Why are conservatives so angry and upset about same sex marriage ? How does it hurt them, or interfere with THEIR marriages ? Does SSM stop opposite sex couples from getting married and raising families ? Of course not .
SSM does not violate the rights of anyone else, any more than finally granting the right of blacks and women to vote in America violated the voting rights of white males .
Furthermore, there is not one shed of evidence that being raised by gay parents is in any way harmful to children, as long as they are good parents, which most are . Or that this will "make them gay "or put them at risk of sexual molestation .

SSM does not violate the rights of anyone else

When liberals can type such a thing in a thread on this post, after the on-going events of the past years ("Bake the cake, bigot!"), one begins to wonder if they are sentient beings taking in data or just robots repeating the same line of code.

The brief for the Commission, due tomorrow, is now online on the Wyoming eCourts public online filing system. At 65-pages, I haven't had a chance to read it all.

This is an important story and useful to cover. Good on you all for discussing it. For one thing it is a good example of putting some (if not all) of the tactics Vox Day lays out in his book SJW's Always Lie; Taking Down The Thought Police, and his free PDF SJW Attack Survival Guide. At least two tactics are on display here: make them fire you; make the proceedings open and public --vampires don't like the light! As far as I can tell, there was actually motion practice to bring the proceedings online and open to the public.

For my part, I read a lot but couldn't really find something to add or latch on to. From the perspective of rhetoric, or counter-attack, I found this a tough case. Basically these little commissars out there are trying to fine what sounds like a perfectly decent woman $40,000 for a stray but correct comment. But they aren't really big enough to really tee off on, minions yes, but too much like deluded little "do-gooders."

I don't expect the wisdom and courage of Solomon from the courts on this one.

Apparently tourism is a big part of Wyoming's economy....

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