The Texas Supreme Court has weighed in on a legal dispute involving the intersection of religious liberty, judicial ethics, and same-sex marriage, answering a certified question from the U.S. Court of Appeals for the 5th Circuit. The case centers on whether Texas judges who decline to officiate same-sex wedding ceremonies based on religious beliefs are barred from performing traditional heterosexual weddings.
The court’s answer was succinct. In response to the question, the Texas Supreme Court said, “No.” That clarification now returns the matter to the 5th Circuit, which will incorporate the state court’s interpretation into its consideration of the underlying appeal.
The dispute originates with Jack County Judge Keith Umphress, who sued the State Commission on Judicial Conduct in 2020. Umphress sought clarification of his ability, as a judge, to refuse to officiate same-sex wedding ceremonies because of his Christian beliefs while continuing to perform weddings for heterosexual couples. His lawsuit followed disciplinary action taken by the commission against another judicial officer, McLennan County Justice of the Peace Dianne Hensley, over similar issues.
A federal district court dismissed Umphress’ claims, concluding that he had not demonstrated a credible threat of enforcement by the judicial commission. The court also noted that Umphress had not altered his wedding practices following the disciplinary action against Hensley. Umphress appealed that dismissal to the 5th Circuit.
Rather than deciding the issue outright, the 5th Circuit certified a question to the Texas Supreme Court, asking it to clarify how the Texas Code of Judicial Conduct applies in this context. The Texas Supreme Court has authority to promulgate and interpret that code, which governs the ethical obligations of judges in the state.
In October, the Texas Supreme Court amended Canon 4 of the Code of Judicial Conduct by adding a comment stating, “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.” In a per curiam opinion responding to the 5th Circuit, the court cited this newly added comment as part of its explanation.
However, the answer did not resolve all related disputes. In the separate Hensley case, which remains pending before a Travis County district court, the State Commission on Judicial Conduct has taken the position that the comment does not end the analysis. According to a brief filed in that case, the commission argues that “the comment only states that judges may decide not to marry people based on a religious objection — it does not state they may also choose to marry other people if that decision results in apparent discrimination that could ‘cast reasonable doubt on the judge’s capacity to act impartially as a judge[.]’”
Attorney Jonathan Mitchell, who represents Umphress, summarized the commission’s position by stating that a judge who objects on religious grounds to performing same-sex ceremonies “must stop performing all weddings if they wish to protect themselves from disciplinary action under Canon 4.”
With the Texas Supreme Court’s response now issued, the focus returns to the 5th Circuit. The appellate court will use the state court’s answer as it decides whether the district court properly dismissed Umphress’ lawsuit, a ruling that could shape how judicial ethics rules are applied in similar cases going forward.
