Texas Won't Punish Judges Who Refuse to Perform Same-Sex Weddings

It just got harder for members of Texas’ LGBTQ+ community to wed.

The Texas Supreme Court just quietly rewrote the rules on judicial impartiality, amending the Texas Code of Judicial Conduct to affirm that judges who refuse to marry gay couples based on their “sincerely held religious belief” are not in violation of the code and won’t face sanctions from judicial review boards.

While gay couples in LGBTQ-friendly metros like Austin or Dallas are unlikely to have trouble finding officiants, critics fear that queer Texans in smaller, more conservative towns may soon have difficulty finding someone to perform their wedding if judges can turn them down.

Legalizing Discrimination

The rule update comes courtesy of a now-withdrawn sanction against a Waco judge who refused to perform weddings for gay couples, but continued performing weddings for straight couples.

The judge, Dianne Hensley, initially refused to perform any weddings after the landmark 2015 Supreme Court decision which legalized gay marriage nationwide. However, she resumed performing straights-only weddings later in 2016. Hensley said she would “politely refer” gay couples to LGBTQ-friendly judges or officiants in the area.

The State Commission on Judicial Conduct issued a public warning to Hensley, arguing that her refusal to perform gay weddings called into question her impartiality in other cases. 

Fearing similar sanctions, Brian Umphress, a county judge in Jack County, Texas who also opposes same-sex marriage on religious grounds, sued the commission.

That lawsuit prompted the Texas Supreme Court to take another look at the code, and rewrite it in a way that explicitly shields judges who cite faith-based objections to same-sex marriage.

How Was the Ruling Made?

The Texas Supreme Court has long been sympathetic to “religious liberty” defenses, often siding with those claiming their faith compels them to refuse service to the LGBTQ+ community – including in the case of Judge Hensley.

"I find it encouraging that we have no indication any same-sex couple even considered handling the situation that way. What decent person would? Judge Hensley treated them respectfully,” wrote Chief Justice Jimmy Blacklock last year. “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.”

To critics, that statement revealed the Court’s bias plainly: compassion for the judge’s conscience, but little for the couples she turned away.

Yet some legal watchdogs say that gay marriage’s nationwide legality means that judges either have to perform all marriages or none – and that “go somewhere else” is not a valid legal defense.

"One of the claims that I think will be made in response to litigation that is likely is that, 'well, there are other people who can perform the wedding ceremony, so you can't insist that a particular judge do it,’ stated Jason Mazzone, a law professor at University of Illinois at Urbana-Champaign. "But that, of course, is not how equal protection works, and it's not how we expect government officials to operate."

Is This Legal?

The judges in these cases say that they’re guided above all by their Christian faith, and their Christian faith says that marriage is between one man and one woman. The Texas Supreme Court agrees, arguing that no one should have to violate their sincerely held religious beliefs at their place of work.

And yet LGBTQ+ advocates argue that their marriages are just as valid as any other marriage in the eyes of the law, and that it is blatantly discriminatory to perform weddings for one legal group and not another. In practice, they warn, the ruling gives a green light for government officials to deny equal treatment under the law, so long as they claim religion as the reason.

One thing’s for sure: The rights of same-sex couples to wed was once believed to be settled law. Yet as more cases challenging marriage equality make their way to the courts, that right feels anything but secure. 

Friendly reminder: a judge is not the only official that can legally solemnize marriage. Anyone in Texas can become ordained with the Universal Life Church to perform legal wedding ceremonies. 

Regardless, the case in Texas raises some important questions: Should personal belief allow public servants to deny equal rights under the law? What if performing weddings is part of their job?