Texas Supreme Court protects religious freedom of judges to opt out of same-sex wedding

Texas judges can legally refrain from officiating a wedding ceremony due to “a sincerely held religious belief,” according to a comment the Texas Supreme Court added to its judicial conduct code on Oct. 24.

“It is not a violation of these canons for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief,” the comment states.

Before the change, the judicial conduct code known as Canon 4 (A)(1) required judges to “conduct all of the judge’s extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge,” according to Verdict Justia.

The comment comes after years of litigation over Texas judges’ obligations to perform marriage ceremonies, including those of same-sex couples, even in violation of personal religious beliefs.

Two specific, separate cases raised the issue once again – one of which asked the Texas Supreme Court to answer whether the canon prohibits judges from publicly refusing to authorize marriages based on moral or religious reasons.  

The first case came in 2019 after the Texas State Commission on Judicial Conduct issued a “public warning” against Texas Justice of the Peace Dianne Hensley for refusing to officiate same-sex weddings due to her religious beliefs, Verdict explains.  

After the United States Supreme Court legalized same-sex marriage under Obergefell v. Hodges, Hensley paused conducting any marriage ceremonies for a time. Once she began officiating heterosexual weddings again, the state warned her of discrimination, claiming she may no longer “act impartially in the courtroom.” 

In Texas, only four public positions can authorize a legal marriage: a Christian minister, a Jewish rabbi, an authorized officer of a religious organization, and a current, former or retired federal or state judge, according to Verdict. The law prohibits these persons from “discriminating on the basis of race, religion, or national origin,” but exempts church officiants if “the action would cause the … individual to violate a sincerely held religious belief,” Verdict explains.  

While Hensley filed suit against the Commission, claiming her religious beliefs and conduct do not violate Canon 4(A)(1), in 2020, a separate county judge, Brian Umphress, pre-emptively sued the Commission, seeking injunctive relief because he feared similar discipline, according to Verdict. 

Additionally, Umphress claimed he is not constitutionally required to perform same-sex weddings, that Obergefell is wrong and does not compel such a requirement and that any such enforcement violates the First Amendment’s Speech and Free Exercise Clauses, Verdict explains. 

While the district court dismissed Umphress’ claims, the Fifth Circuit Court of Appeals presented the question to Texas’ Supreme Court through the process of certification – when a lower court asks a supreme court for clarification on state law. 

The Fifth Circuit specifically asked: “Does Canon 4A(1) of the Texas Code of Judicial Conduct prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?” 

Douglas Lang, an attorney representing the Commission against Umphress, told KERA News he doesn’t think the court’s comment answers the certified question. 

“I wouldn’t prejudge what the Supreme Court says,” Lang said. “We’ve suggested in our briefs what we think they ought to say, but that’s what makes an appeal.” 

Executive General Counsel Hiram Sasser of First Liberty Institute, the nonprofit that represented Hensley, said the court’s clarification avoids future state punishments like the warning against Hensley.  

“Now going forward, every judge in Texas will enjoy the freedom Judge Hensley has fought so hard for in her case,” Sasser said in a statement, reported by KERA. “As for her case specifically, this amendment melts away the reasons the Commission relied on to punish Judge Hensley.”