Texas’ Supreme Court has clarified that judges may publicly refuse to perform same-sex weddings while continuing to perform opposite-sex weddings, in what is being celebrated as a win for religious liberty.
The opinion, dated January 9, clears up confusion after the State Commission on Judicial Conduct (SCJC) had been accused of intentionally misinterpreting a comment the Court had added to Canon 4 of the Texas Code of Judicial Conduct in October.
The comment made clear that judges could refuse to perform same-sex weddings, but the commission claimed in legal filings that it meant judges could not, at the same time, choose to perform opposite-sex weddings.
Background
As previously reported, McLennan County Justice of the Peace Dianne Hensley was issued a public warning in 2019 by the 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 in state court, claiming its interpretation of Canon 4A(1) is incorrect and violates her free exercise of religion.
Jack County Judge Brian Umphress then filed a federal lawsuit 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 could not decide whether this section of Canon 4 is unconstitutional because Texas law had yet to establish whether the SCJC’s interpretation was correct.
The court sent a certified question to the Texas Supreme Court in April 2025, asking the state’s justices to provide a definitive answer on this unsettled issue of state law. Rather than settling the issue by responding to the certified question, the Supreme Court decided to issue an order in October that added comment to Canon 4 directly.
The comment clarified, “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.”
However, the State Commission on Judicial Conduct (SCJC) claimed in later court filings that the comment only addresses judges who refuse to officiate weddings altogether.
This came after Judge Hensley filed a motion for summary judgment, asking for the case to be decided without trial—believing there was no dispute over the meaning of the clarifying comment.
On December 17, Jonathan Mitchell—attorney for Judge Umphress—filed a letter informing the Supreme Court of Texas that the SCJC had misinterpreted its comment. He urged the Court to be “as clear as can be” in its opinion so that the SCJC cannot misconstrue its language.
The Clarifying Comment
On January 9, the Supreme Court of Texas finally responded to the Fifth Circuit’s certified question.
The language of the certified question was: “Does Canon 4A(1) of the Texas Code of Judicial Conduct [concerning a judge’s extra-judicial activities] prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?”
The order explained that the Court’s added comment to Canon 4 makes clear that “the answer to the certified question is no.”
Judge Hensley’s lawsuit against the SCJC remains ongoing. The commission is also arguing that the clarifying comment has no retroactive effect on Canon 4, and is therefore irrelevant to Hensley’s case.
The Fifth Circuit court may now proceed with Judge Umphress’ case with a clear understanding of Canon 4.
If you or anyone you know has information regarding court cases, please contact our tip line: [email protected].
