In a controversial move, the Texas Supreme Court has granted judges across the state the right to refuse to officiate same-sex weddings, effectively allowing public officials to discriminate against LGBTQ+ couples under the guise of religious freedom.
The change comes through an amendment to the Texas Code of Judicial Conduct, now 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.”
The decision bypassed public hearings or arguments and was issued directly by the court.
A Legal Loophole for Discrimination
The amendment stems from litigation launched by Jack County Judge Brian Umphress, who filed a lawsuit in 2020 claiming his refusal to perform same-sex marriages was protected under the First and Fourteenth Amendments. Umphress only wanted to officiate opposite-sex weddings but feared sanction from the Texas State Commission on Judicial Conduct.
His case prompted the Fifth Circuit Court of Appeals to halt federal proceedings and refer a key question to the state’s highest court: Does the judicial code prohibit judges from refusing to perform same-sex weddings based on personal beliefs while continuing to perform opposite-sex weddings?
Instead of answering directly, the Texas Supreme Court rewrote the code, allowing judges to refuse on religious grounds.
Precedent Set by Waco Judge
The ruling is seen as a victory for Justice of the Peace Dianne Hensley of McLennan County, who for years refused to marry same-sex couples and was sanctioned for it.
Hensley would respond to marriage requests with a statement that read:
“I’m sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same-sex weddings.”
At the time, she was the only justice of the peace in Waco performing weddings. Despite that, she claimed that LGBTQ+ rights weren’t violated, as couples could find another officiant. The Judicial Conduct Commission disagreed, stating her actions undermined public confidence in her impartiality and breached the judiciary’s ethical standards.
Hensley, backed by the First Liberty Institute, a conservative Christian legal group, filed her own lawsuit under the Texas Religious Freedom Restoration Act. The Texas Supreme Court eventually allowed her case to proceed, and the warning against her was later dismissed.
Chief Justice Jimmy Blacklock, who publicly supported Hensley, wrote in a concurring opinion:
“They got married nearby. They went about their lives. Judge Hensley went back to work, her Christian conscience clean, her knees bent only to her God. Sounds like a win-win.”
Constitutional Questions Remain
Legal experts warn that the amended code could face future challenges under equal protection principles.
Jason Mazzone, a constitutional law professor at the University of Illinois, said:
“One of the claims that I think will be made is, ‘Well, there are other people who can perform the wedding ceremony, so you can’t insist that a particular judge do it.’
But that, of course, is not how equal protection works, and it’s not how we expect government officials to operate.”
Critics argue that the ruling effectively enables selective service within the public judiciary, allowing judges to perform state duties for some citizens while denying them to others based on sexual orientation — a practice that may not hold up under constitutional scrutiny.
