Among the many responsibilities of a judge, neither “marriage-maker” nor “Bible instructor” are listed. That truth, however, seems to have escaped the attention of Judge Randall Rogers in Texas.
In a recent case at Smith county court in East Texas, Josten Bundy, who is 20, was convicted of assault after he admitted punching his girlfriend’s former boyfriend for insulting her.
In sentencing Mr Bundy, Judge Rogers offered him probation but imposed various conditions including that the defendant marry his girlfriend, Elizabeth Jaynes, “within 30 days” and write out a verse from the Bible 25 times a day. The verse the judge chose was Proverbs 26:26, which says “If a man digs a pit, he will fall into it”.
The judge declared that if the probation and marriage were not accepted, Mr Bundy would be jailed for 15 days.
The case arose from an incident in which the former boyfriend had said “disrespectful things” against Miss Jaynes, who is 19, and Mr Bundy had stepped in to protect her honour.
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The couple had planned to marry anyway but thought that doing hurriedly as a court punishment would affect the romantic bliss of their nuptial celebrations.
So, when he heard the alternative sanctions, Mr Bundy said he would opt for 15 days in prison but wanted first to call his employer to check that he would not lose his job. Judge Rogers refused to allow that phone call, citing no authority and saying in somewhat imperfect judicial language, “Nope, that’s not the way this works”.
Not wishing to risk unemployment, Mr Bundy therefore accepted the probation order and the compelled marriage.
Judge Rogers also saw fit to embarrass Miss Jaynes, who is 19, by making her stand up at one point in the proceedings while speaking about her. The judge also asked the defendant, “Is she worth it?”.
The couple were married by a magistrate 18 days later in somewhat fraught circumstances because some key family members could not attend with that brevity of notice.
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The United States has no state religion, and it is a principle of its constitutional law that judges are not allowed to impose any religious beliefs in their judgments. To allow religious judges to enforce their own beliefs would be offensive to those who have different religions or who are agnostic or atheist.
The Freedom from Religion Foundation, which advocates the separation of church and state, has filed a complaint against Judge Rogers with the Texas State Commission on Judicial Conduct.
Judge Rogers might be disciplined or censured. He will not, though, be compelled to write out 25 times a day “If a judge digs a pit, he will fall into it”.
In 2014, a magistrate was dismissed after the Tennessee Board of Judicial Conduct found she had manifested “inappropriate religious bias”. Magistrate Lu Ann Ballew had ordered that a boy named Messiah be renamed Martin, even though that was not an issue in the case. Magistrate Ballew had said, “Messiah is a title held only by Jesus Christ.”
It is curious that Judge Rogers in Texas thought that a marriage made under the duress of his criminal court order would be acceptable. Many 19th-century cases of marriage under duress concerned weddings where the groom said “I do” while a firearm was pointed at his head by the father of the pregnant bride. As Justice Smith observed in an Arkansas case in 1928, “It appears very highly probable that if there had not been a wedding, there would have been a funeral.”
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Historically, although a judge could not impose marriage as a punishment, the law in some countries did recognise a valid marriage if a man’s ardour manifested itself in ways short of vows and a ring. In Scotland, until 1940, where a woman proved that she had been seduced on the promise of marriage, the act of carnal liaison could itself constitute marriage.
Marriages are often rejected in courts but not always from the bench. In London in the 1960s, Mr Justice Cairns was trying a divorce suit and the wife, who was petitioning for the divorce, was in the witness box. Towards the end of her testimony, the judge asked her: “If your present marriage is dissolved would you like to marry again?”. She replied: “Oh no, but thank you very much.”
Gary Slapper is global professor at New York University, and director of its London campus. His latest book, Further Weird Cases, is published by Wildy, Simmonds & Hill. You can follow him on Twitter @garyslapper