So first we will see public officials immune to discipline for refusing to perform same-sex marriages. Which in itself will turn huge swaths of the country into SSM deserts for the same-sex couples living there.Texas judges who don’t perform gay weddings for faith reasons won’t face sanctions, high court says
Texas judges who decline to perform a wedding ceremony based on a “sincerely held religious belief” do not violate the state’s rules on judicial impartiality, according to a comment the Texas Supreme Court added to the state’s judicial conduct code Friday.
The high court’s comment on Oct. 24, effective immediately, could have statewide implications for gay marriage and potentially play a role in a federal lawsuit attempting to overturn the U.S. Supreme Court decision that legalized gay marriage.
The rule change appears to answer a question of state law that the U.S. Fifth Circuit Court of Appeals posed to the Texas Supreme Court in April, which was prompted by a lawsuit challenging the State Commission on Judicial Conduct’s now-withdrawn sanction of a Waco judge who refused to marry gay couples while continuing to marry straight couples. The plaintiff in that suit, a North Texas county judge, sued saying he was afraid he could face the same punishment.
Texas Supreme Court clerk Blake Hawthorne said in an email to KERA News the court cannot comment on the rule change.
"The order speaks for itself, and the Court cannot comment on its connection to pending litigation," Hawthorne said.
The State Commission on Judicial Conduct declined to comment.
The court's clarification amended Canon 4 of the Texas Code of Judicial Conduct, which prohibits judges from doing things outside their judicial role that would cast doubt on their ability to act impartially or interfere with the proper performance of judicial duties.
It’s the rule the commission accused Waco Justice of the Peace Dianne Hensley of violating when it issued a public warning against her in 2019, saying her refusal to marry people based on their sexual orientation cast doubt on her ability to appear impartial as a judge.
When the landmark U.S. Supreme Court case Obergefell v. Hodges legalized gay marriage nationally in 2015, it required judges and justices of the peace — who in Texas are allowed but aren’t required to officiate weddings — to either officiate both gay and straight marriages or none at all. Hensley, citing her Christian beliefs, chose not to officiate any weddings following the U.S. Supreme Court decision.
She then decided to begin performing weddings again in 2016 — but only for straight couples. She referred same-sex couples to a different judge and other nearby officiants, according to her court filings.
The justice of the peace told the Waco Tribune-Herald about that decision in a 2017 interview. Once the judicial conduct commission learned of this, it launched an inquiry into Hensley’s policy in 2018 and issued the public warning the next year.
Hensley did not appeal the reprimand but instead sued, arguing for protections under the Texas Religious Freedom Restoration Act, which states the government can’t make restrictions that substantially burden someone’s freedom of religion.
The court ruled last year Hensley had grounds to proceed with her suit even if she didn't go the administrative route first, but it didn’t decide her religious freedom claims. The commission eventually dismissed its sanction a few months after the Texas Supreme Court’s decision, noting that none of the commissioners were at the agency when it reprimanded Hensley, and it withdrew the sanction after reviewing the underlying facts.
The Third Court of Appeals in Austin sided with Hensley in May, allowing the case to move forward in Travis County District Court.
That’s the case Jack County Judge Brian Umphress pointed to in 2020, when he sued the commission over concerns his decision to only marry straight couples and not gay couples and his belonging to a church that opposed gay marriage would open him up to potential judicial discipline — especially as he planned to campaign in 2022 for reelection and oppose gay marriage as part of his campaign.
Umphress is not a judge or a licensed attorney in Texas — nor is Hensley — but head of the Jack County Commissioners Court. County judges can officiate marriages in Texas.
A North Texas federal judge dismissed that lawsuit and ruled Umphress didn't have standing to sue, but the Fifth Circuit revived it upon appeal. The federal appeals court asked the Texas Supreme Court to weigh in, as it deals with state law.
The Texas Supreme Court has yet to directly answer the Fifth Circuit's certified question, but Jason Mazzone, a law professor at the University of Illinois at Urbana-Champaign who has written about the case, said the court's comment seems to resolve Umphress' claims.
Someone could, however, challenge a judge's decision not to marry gay couples on constitutional equal protection grounds in the future, Mazzone said.
"One of the claims that I think will be made in response to litigation that is likely is that, 'well, there are other people who can perform the wedding ceremony, so you can't insist that a particular judge do it,' Mazzone said. "But that, of course, is not how equal protection works, and it's not how we expect government officials to operate."
Douglas Lang, one of the attorneys representing the commission in Umphress' case, said he doesn't believe the new 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 oughta say, but that's what makes an appeal."
Hiram Sasser with the First Liberty Institute, the religious freedom legal nonprofit that helped represent Hensley, said the institute is heartened by the Texas Supreme Court's amendment.
"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. "As for her case specifically, this amendment melts away the reasons the Commission relied on to punish Judge Hensley."
KERA News has reached out to the attorneys representing Umphress and will update this story with any response.
Friday's administrative change comes as Chief Justice Jimmy Blacklock — who was sympathetic to Hensley's case before his appointment as chief justice — heads the court. When Hensley's case made it up to the Texas Supreme Court, Blacklock questioned how Hensley’s decision showed any more bias than other judges who declined to perform weddings to avoid marrying same-sex couples.
And although the high court didn’t touch on Hensley’s RFRA claims, Blacklock wrote in a 16-page concurring opinion the court should have immediately ruled in Hensley’s favor on her religious freedom claims, noting that no same-sex couples seem to have complained about Hensley.
"Judge Hensley treated them respectfully," Blacklock wrote. "They got married nearby. They went about their lives. Judge Hensley went back to work, her Christian conscience clean, her knees bent only to her God. Sounds like a win-win."
The opinion also extensively criticized the State Commission on Judicial Conduct's decision-making in Hensley's case.
The high court's update also comes as Texas voters are being asked to weigh in on changes to the makeup of state judicial commissioners during the Nov. 4 constitutional amendment election. Under Proposition 12, the governor would appoint seven members of the public out of the commission's 13 members. The rest would be a variety of state judges and all would need Senate approval.
Two former public members of the commission alleged they were removed from the commission after how they voted on Hensley's judicial discipline.
Then state legislatures will either seek to enforce pre-existing laws banning SSM, or will enact new ones.
And this Supreme Court will uphold all of it.
But sure, it was only about protecting children from drag queens and from "groomers" trying to make them trans.
