(The Center Square) – The Supreme Court of Texas has issued issued an order to amend state code to clarify that judges are permitted to refrain from performing weddings based on their sincerely held religious beliefs. The legal change was implemented as two major cases related to the issue are before different courts.
All eight justices signed the order to add a comment to Canon 4 of the Texas Code of Judicial Conduct, “Conducting the Judge’s Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations.” Canon 4 states, “A judge shall conduct all of the judge’s extrajudicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.”
The newly added comment states: “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 change is expected to directly impact two cases currently in litigation and possibly put to rest any future questions about the issue. It, and a constitutional amendment before voters, is also expected to impact a state Commission on Judicial Conduct.
In one case, McLennan County Justice of the Peace Dianne Hensley sued the state Commission on Judicial Conduct after it reprimanded her in 2019 for “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation in violation of Canon 4A(1) of the Texas Code of Judicial Conduct.”
Her lawsuit argues the SCJC’s interpretation of Canon 4A(1) violates the Texas Religious Freedom Restoration Act, which prohibits government agencies from substantially burdening a person’s free exercise of religion.
The commission issued the reprimand after Hensley implemented a referral program to accommodate same-sex couples by establishing low-cost, convenient marriage option blocks away from her office. She also offered “to pay any difference in cost for the same-sex couples she was referring,” First Liberty Institute, which is representing her, explains.
Several members of her staff are authorized to perform marriages and no one has complained about her referral program, First Liberty says.
In Texas, judges are not required by law to perform marriages.
Despite this, the SCJC “decided to step in and pop the big questions of their own. Not about the law, but about the Judge’s personal religious beliefs,” First Liberty argues.
A hearing is scheduled for her case next week.
In another case, the SCJC reprimanded Jack County Judge Keith Umphress for the same reason. Umphress has also declined to perform same-sex marriages for the same reason as Hensley.
Umphress also sued the SCJC, arguing its action was unconstitutional. A federal district court dismissed his case “for want of subject matter jurisdiction,” also stating he lacked standing and his claims “were not ripe.” The court also said if it did have jurisdiction, it would have abstained under the Pullman Doctrine.
The 1941-era Pullman Doctrine held that “federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass on them.”
Umphress appealed to the Fifth Circuit, which in April said his lawsuit “raises a threshold issue of state law for which there is no controlling precedent: As a matter of Texas law, do judges violate Canon 4A(1) by publicly refusing to perform same-sex weddings on moral or religious grounds while continuing to officiate at opposite sex weddings?”
The Fifth Circuit reversed the lower court’s dismissal, ruled Umphress has standing, his claims are ripe, and certified the question to the Supreme Court of Texas.
“Because state-court litigation appears unlikely to yield an answer to the crucial threshold question of Texas law, we decline to abstain under Pullman, but, instead, certify that question to the Supreme Court of Texas,” the Fifth Circuit held.
The Supreme Court of Texas has yet to certify its answer. Its amended comment to Canon 4A(1), however, answers the higher court’s question.
In the meantime, the Texas court system has taken down the Texas Code of Judicial Conduct from its website.
Voters have also been asked to approve or reject 17 constitutional amendments on the Nov. 4 ballot, including Proposition 12 to expand and restructure the SCJC.
