Texas’ Supreme Court has clarified that judges are not required to perform same-sex weddings, an issue that had been working its way through the courts.
The order, issued last week, was not an explicit response to any specific litigation, but instead added comment to Canon 4 of the Texas Code of Judicial Conduct.
Canon 4 concerns “Conducting the Judge’s Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations.”
Some lower courts had interpreted the canon to require judges to perform same-sex weddings if they were also performing heterosexual weddings.
The State Supreme Court’s comment clarifies that “[i]t 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.”
Background
As previously reported, McLennan County Justice of the Peace Dianne Hensley was issued a public warning in 2019 by the State Commission on Judicial Conduct (SCJC) for officiating heterosexual weddings while referring same-sex couples to a minister that would help them—citing her religious beliefs.
The commission found Hensley to be in violation of a section of Canon 4, which 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.”
Hensley filed a lawsuit against the SCJC, claiming its interpretation of Canon 4A(1) is incorrect and violates her rights under the Texas Religious Freedom Restoration Act. That state law declares, “[A] government agency may not substantially burden a person’s free exercise of religion.”
The SCJC ultimately removed the public warning, but the case is still pending in the state courts.
A related case is working its way through the federal courts. Jack County Judge Brian Umphress is challenging the commission’s application of Canon 4 against Hensley, contending it is unconstitutional.
However, the U.S. Fifth Circuit Court of Appeals said it cannot decide whether this section of Canon 4 is unconstitutional because it had not been established in Texas law whether the SCJC’s interpretation is correct.
The court therefore sent a Certified Question to the Texas Supreme Court on April 4 asking the state’s justices to provide a definitive answer on this unsettled issue of state law.
Rather than settling this issue through the Certified Question, the Supreme Court decided to issue the order that added comment to Canon 4 directly.
This update is expected to significantly impact both Hensley and Umphress’ respective lawsuits, with the clarified interpretation addressing the core legal dispute in their favor, though formal resolution of their individual cases remains pending.
The state’s published text of Canon 4 has been removed from the website. It is expected to be reposted reflecting the update.
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