The Texas Supreme Court has reiterated its stance that judges who won’t perform certain weddings for religious reasons will not run afoul of state rules on judicial conduct, siding with a North Texas judge seeking to overturn the legalization of gay marriage altogether.
Justices confirmed Friday that their October clarification of the rules that govern state judges’ conduct resolves a certified question posed by the Fifth Circuit Court of Appeals: Does it violate rules on judicial impartiality for a judge to publicly refuse to officiate certain weddings based on their sincerely held religious belief?
“Accordingly, the answer to the certified question is no,” the Texas Supreme Court wrote in a two-page opinion.
Friday's ruling likely resolves Jack County Judge Brian Umphress’ claims that he could be unlawfully disciplined for refusing to marry gay couples. But Umphress also wants the courts to rule that the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges does not require judges to officiate gay marriages — and he wants that ruling overturned altogether.
It’s now up to the Fifth Circuit to decide whether those claims can move forward.
Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston, said there's not much the federal appeals court can do.
"At most, the justices can say, 'this issue is resolved by the [U.S.] Supreme Court. If you don't like it, file an appeal to the Supreme Court and deal with it there,'" Blackman said.
KERA News has reached out to attorneys for the State Commission on Judicial Conduct and Umphress for comment and will update this story with any response.
The question stemmed from Umphress’ 2020 lawsuit against the commission. The agency, responsible for disciplining state judges, issued a now-withdrawn sanction in 2019 against a different judge in Waco who publicly refused to marry gay couples while continuing to perform straight weddings.
Canon 4 of the Texas Code of Judicial Conduct prohibits judges from doing things outside their judicial role that would cast doubt on their ability to act impartially or interfere with the proper performance of judicial duties. The state judicial conduct commission accused McLennan County Justice of the Peace Dianne Hensley of violating that canon, saying her public refusal to marry gay couples after gay marriage was legalized — but still marrying straight couples — casts doubt on her ability to appear impartial as a judge.
The Texas Supreme Court allowed Hensley’s lawsuit against the commission to move forward. That ultimately led the commission to withdraw its sanction against her in 2024.
The commission noted that, at the time, none of the current commissioners were at the agency when it first reprimanded Hensley, and it dismissed the sanction after reviewing the underlying facts.
In his suit, Umphress alleged he feared receiving similar discipline to Hensley because he had also chosen to only marry straight couples and not gay couples. He also belonged to a church that opposed gay marriage and planned to campaign in 2022 for reelection, making his opposition to gay marriage part of his campaign.
Umphress argued he shouldn’t be forced to marry gay couples due to his First Amendment right to free exercise of religion. He also alleged that the judicial conduct commission's interpretation of the judicial canon in Hensley’s case was unconstitutionally vague.
A North Texas federal judge dismissed Umphress’ lawsuit and ruled he didn't have standing to sue, but the Fifth Circuit revived it upon appeal. The federal appeals court asked the Texas Supreme Court to weigh in, as the case poses a state law issue.
But the answer to the certified question doesn’t appear to address Umphress’ desire for the courts to overturn Obergefell.
The panel of Fifth Circuit judges who posed the initial certified question wrote in April that the legal validity of Obergefell is relevant to Umphress’ case. Without the U.S. Supreme Court ruling, Texas law still defines marriage as the union of one man and one woman.
The federal appeals court also wrote that it was reversing the district court’s dismissal of Umphress' case, and the panel would retain jurisdiction to decide the case after the Texas Supreme Court answered the certified question.
“If a court were to declare that Obergefell does not require judges to perform same sex weddings, or if the Supreme Court were to overrule Obergefell altogether (however likely or unlikely that may be),” the panel wrote, “there would be no same-sex marriage in Texas, and, consequently, the Commission could not discipline judges for refusing to perform them.”
Both Umphress and Hensley are represented by conservative lawyer Jonathan Mitchell. Mitchell also helped craft the state's ban on abortion after a fetal heartbeat is detected.
Hensley recently filed her own suit seeking to overturn Obergefell last month. In language identical to Umphress' suit, Hensley argues the federal judiciary "has no authority to recognize or invent 'fundamental' constitutional rights."
In November, the U.S. Supreme Court denied an appeal by Kim Davis, a former county clerk from Kentucky attempting to overturn Obergefell. It came a decade after she refused to issue same-sex marriage licenses shortly after the Supreme Court case was decided.
While Umphress' and Davis' cases are different, Blackman said, neither has great chances of overturning Obergefell.
"I think the message at this point is live and let live," Blackman said. "If people don't wish to do this, there are others who will. It may not be a totally satisfying message to gay couples, but that's sort of where the law has left them."
Toluwani Osibamowo is KERA’s law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
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