“Does a state violate the First Amendment’s Free Exercise Clause or Free Speech Clause when it punishes a judge who has discretionary authority to solemnize marriages because she states that her religious beliefs preclude her from performing a same-sex wedding?”

That’s the question Judge Ruth Neely, from Pinedale, wants the Supreme Court to answer. 

Friday Aug. 4, she filed a petition with the Supreme Court of the United States (SCOTUS), asking them to review a March 7, 2017 ruling from the Wyoming Supreme Court. That ruling handed down a public censure and effectively removed her from a circuit court magistracy for answering a reporter’s question.

Each year about 10,000 such petitions are filed. Of these, only about 80 cases will be heard. But Neely’s petition already stands out above the crowd, giving her a far better chance than most.

That’s because SCOTUS does not usually take cases merely because a lower court got it wrong. They tend to take cases which fill three requirements. First, the case should be clean and uncomplicated. Second, they address important and emerging questions of constitutional law. Third, they must have nationwide and far-reaching implications. Neely’s case scores on all counts.

Cases as clean-cut as Neely’s rarely come before the Supreme Court. There is only one fact that underlies the whole case, and this is not under dispute, but freely stipulated by both sides: On a Saturday morning in early December 2014, in answer to a direct question, she told a reporter that she was unable to perform same-sex weddings because of her religious convictions.

The whole thing boils down to those words, and those words alone -- spoken outside of business hours and outside of the courtroom setting. Neely did not then, nor any time since, take any official action towards a same-sex marriage. She only spoke. If you want to isolate the question of free speech and free expression, it cannot get any more isolated than that. Score one for Wyoming’s judge.

As for emerging constitutional law, Neely’s words came over six months before SCOTUS voided marriage law across the US with the Obergefell v. Hodges opinion, but she anticipated a question that would arise in its aftermath. 

Changing marriage law is not like changing the speed limit. Speed limits are a balancing act between individual freedoms and public safety. Marriage law is about the very foundations of human existence. While there is a reasonable compromise between 60 and 70 MPH, there is no halfway ground between a sexual understanding of marriage, and an asexual understanding of marriage.

So, the question that Obergefell has raised across that land is this: can we craft laws that permit the peaceful coexistence of mutually exclusive views? Or must the disfavored view be driven out of public life altogether? 

Sexual Orientation and Gender Identity (SOGI) rules which have been adopted by several state ethics committees – including Wyoming’s – have the predictable effect of driving anyone with a sexual understanding of marriage out of government service. Judge Neely’s case is not the only one, but it has raised this question to national attention. It is time to address this question head on. 

People are being driven out of government service by gag orders and compelled speech. Should SCOTUS allow this trend to continue it would set a dangerous precedent for the future of any group with a disfavored view.

Finally, the far-reaching implications of the Neely case are hard to overstate. 

The Wyoming Supreme Court, guided by SOGI theory, assumed that every Wyoming judge must, without exception, not only recognize the legality of same-sex marriages, but personally perform them. This, despite there being no written law, anywhere, which requires this. 

But the Court went further still. They next asserted that any judge who contradicts this unknown and unwritten law is, by the mere act of speaking, undermining “public confidence in the judiciary.”

If a judge can be censured and removed merely for speaking disagreement with an unwritten law, what would prevent any judge, anywhere, from being punished and removed for speech disagreeing with any actual law or constitutional provision? 

Is it constitutional to remove a judge who merely speaks in favor of removing the right to keep and bear arms? Before the federal court vacated our law, should all those judges who publicly favored same-sex marriage, contrary to the Wyoming marriage statute (20-1-106), have been censured and removed?

What about judges (either pro-life, or pro-abortion) who openly acknowledge that Roe v. Wade was an abomination? Shall they be purged from our courts? 

These are serious questions. Wyoming’s censure of Neely opens the door to these absurdities and many, many more. It is high time we step back from the brink. Neely’s petition gives our country, and our community, an opportunity to take in the big picture. 

What we do today will have far-reaching implications for the free speech of all public servants, and all citizens in general, long after same-sex marriage recedes into the footnotes.

Jonathan Lange has a heart for our state and community. Locally, he has raised his family and served as pastor of Our Saviour Lutheran Church in Evanston and St. Paul’s in Kemmerer for two decades. Statewide, he leads the Wyoming Pastors Network in advocating for the traditional church in the public square.