Texas Judges Free To Refuse Gay Marriages

The Texas Supreme Court has updated ethics rules, saying judges across the state may refuse same-sex weddings if they violate their conscience.

The Supreme Court unanimously added a comment to judicial ethics rules on October 24, saying they do not prohibit a judge from refusing a same-sex marriage due to religious beliefs.

“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 reads.

The court added this comment to Canon 4 of the Texas Code of Judicial Conduct, a set of ethical rules on judges’ “extra-judicial activities to minimize the risk of conflict” with their duties. 

The justices directed the clerk to file this comment with the secretary of state, publish it in the Texas Bar Journal to be mailed to every state bar member, submit it to the Texas Register, and send it to Gov. Greg Abbott, Lt. Gov. Dan Patrick, and every state legislator.

In North Texas, Jack County Judge Brian Umphress sued the State Commission on Judicial Conduct in 2020 for disciplining judges who express opposition to same-sex weddings or conduct, according to Courthouse News Service. He claimed that this was a violation of judges’ rights under the 1st Amendment, which protects freedom of speech and religion.

The commission sanctioned McLennan County Justice of the Peace Dianne Hensley in 2019 for declining to officiate same-sex weddings, according to KWTX. Officials claimed this cast doubt on her ability to act impartially due to her sexual orientation.

Meanwhile, the commission has seen around 27,000 complaints over the last 20 years, as The Dallas Express reported. This resulted in approximately 250 public sanctions and around 550 private sanctions, with the judge remaining unnamed. In January, one unnamed judge “denied a litigant’s attorney the right to be heard.” Texas voters will decide on transparency reforms on November 4.

The U.S. Supreme Court nationalized same-sex marriage in 2015, in Obergefell v. Hodges. The court ruled 5-4 that denial of same-sex marriage breaks the 14th Amendment’s guarantee to equal protection under the law. Previously, states had decided on the matter for themselves, with Kentucky, Michigan, Ohio, and Tennessee explicitly defining marriage as a union between one man and one woman. 

The Supreme Court will decide on November 7 whether to take up the case of former Kentucky clerk Kim Davis, who was briefly jailed after refusing to issue same-sex marriage licenses following the Obergefell decision, as The Dallas Express reported. Davis’ case directly challenges Obergefell.

A joint brief from The Claremont Institute’s Center for Constitutional Jurisprudence and the National Organization for Marriage compared Obergefell to Roe v. Wade before its reversal, as The Dallas Express also reported. It called the ruling “manifestly erroneous,” and said it “cut off a robust, democratic debate” and threatened religious liberty. 

If the Supreme Court overturns the 2015 ruling, it would send the matter of same-sex marriage back to the states. The 10th Amendment dictates “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.”