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ovTtwsTexas Supreme Court gives judges the green light to put religion above the law
On Oct. 24, the Texas Supreme Court issued an order amending the state’s judicial ethics code https://www.them.us/story/texas-same-sex-marriage-equality-deny-religious-beliefs o that judges may “publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.”
While the change is couched in the language of protecting conscience, its real‑world consequence is to allow state actors — judges whose authority and impartiality are vested in the public trust — to refuse the legal duties of their office when they conflict with religious belief. For same‑sex couples in Texas, this signal from the bench is more than symbolic: It threatens access, equality and the stability of the promise of marriage as a protected civic institution.
Like many professions, the actions of judges are regulated by a formal code of conduct that helps outline what is and is not ethical behavior while acting in their official capacity. These rules are meant to help ensure impartiality, hypothetically establishing that everyone has access to a fair and equal justice system. It’s not possible to accurately predict every ethical scenario a judge may encounter, however, so in order to provide clarity as new situations arise, most rules of judicial conduct are also accompanied by “comments” that act as more detailed guidance.
In Texas, the Code of Judicial Ethics states that a judge’s “extra-judicial activities” should not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Seems reasonable enough. You probably don’t want a judge running around with the mafia or something similar, only to turn around and be responsible for sentencing those same people in a criminal trial.
But not every scenario is as clear cut as this, as demonstrated by the series of cases that brought us to the new commentary. In the decade since Obergefell v. Hodges legalized same-sex marriage in all 50 states, any number of challenges to the rulings have been made, including various state actors seeking “conscience protections” to be exempted from having to do their jobs and participate in various steps of the same-sex marriage process.
Among these was a Texas judge, Diana Hensley https://www.them.us/story/texas-same-sex-marriage-equality-deny-religious-beliefs, ho in 2019 was sanctioned under the “extra-judicial conduct” rule for refusing to marry same-sex couples. Though the State Commission on Judicial Conduct withdrew Hensley’s sanction last year after she sued on religious freedom grounds, another challenge to the sanction was made by Jack County Judge Brian Umphress. Umphress, represented by the First Liberty Insitute, argued that he was concerned he would face similar sanctions for his campaigns against same-sex marriage, which brought the rule in front of the Texas Supreme Court.
The court was highly sympathetic to both Umphress and Hensley, with the chief justice writing an opinion in Hensley’s favor last year stating that same-sex couples could just find a different judge to marry them, while Hensley could “\[go\] back to work, her Christian conscience clean, her knees bent only to her God https://www.them.us/story/texas-same-sex-marriage-equality-deny-religious-beliefs#:~:text=went%20back%20to%20work%2C%20her%20Christian%20conscience%20clean%2C%20her%20knees%20bent%20only%20to%20her%20God..”
This sympathy culminated in a new, updated comment, which clarifies that the “extra-judicial conduct” rule should not apply to a religious refusal to perform a same-sex marriage, reading: “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.”
This is a clear, direct, government-sanctioned order that permits judges to place their own religious beliefs over the oath of office https://statutes.capitol.texas.gov/docs/cn/htm/cn.16.htm hat they take as judges to faithfully execute the duties of their office (which includes performing legal marriages).
I want to be clear that this is different from the legal carveouts that have been outlined for ministers and religious institutions opposing same-sex marriage in laws such as the federal “Respect for Marriage Act https://freethoughtnow.org/legislative-conundrums-respect-for-marriage-act/.” hese circumstances involve a private, religious ceremony, which, even if we don’t agree with the theology, likely should be protected from government interference under the First Amendment. In this case, we are talking about secular judges wielding the authority of their state government, performing secular ceremonies. Marriage in the United States is a legal institution that grants rights and protections to couples, both during the marriage and in the event of its dissolution. The ceremony may have a religious element to it if the couple so chooses, but that element is not required in order to be a legally recognized marriage. These judges are not making declarations about whether the couple in front of them are married in the eyes of their church or their god. That’s not their domain. Instead they are being asked to make declarations about this couple being married in the eyes of the law — which is their domain.
The new distinct exemption adopted by the Texas high court is a clear undermining of the government’s responsibility to maintain neutrality. They did not even bother to mask it under vague language of a broad “moral” or “ethical objection” to a marriage they may not agree with. The Texas Supreme Court instead created a direct, government-endorsed hierarchy of rights, which explicitly places the religious beliefs of individual judges above the constitutional right to same-sex marriage.
This new hierarchy is going to cause real, tangible problems for same-sex couples in the Lone Star State. While you do not need a judge to have a secular wedding ceremony, it is still one of the most common options for couples who do not wish to be married by a religious officiant. Particularly for couples who are uninterested in the traditional “big white wedding,” or couples who are speeding up their marriage timelines out of fear of the looming possibility that Obergefell will be overturned soon, courthouse weddings offer a quick, cost-effective option for ensuring they have access to the legal status and protections of marriage.
In the wake of this new development, we’re likely going to see an increase in delays and rescheduling for couples who may suddenly find themselves turned away at the whims of the judge. We’re also going to see a rise in geographic gaps that disproportionately impact same-sex couples in rural communities. This particular impact will hit especially hard in a state such as Texas, where communities are far more spread out between wide stretches of land than in smaller states.
It’s not just the logistical impact we should be concerned about, but also the clear and distinct moral and emotional injury that will be caused to these couples. Same-sex couples in Texas, already worried about their precarious future, now have to wonder if they will be publicly turned away at the courthouse, a public venue and community resource. Couples who are turned away will be faced with the indignity of relegation to second-class citizenship, likely in full view not only of the family and friends they might have invited to witness the event, but also by broader community members conducting other business. Even for couples who successfully get married, their wedding day will still be marred by the anxiety of the sheer possibility of being turned away, particularly in jurisdictions that do not require an appointment for a courthouse wedding. The fact that this is a government service makes this insult particularly keen, as it is a reminder that while same-sex couples have to comply with all of the same laws as their opposite-sex counterparts, they are not guaranteed access to all of the same benefits.
The implications of this rule will reach far beyond judges and far beyond Texas. This exemption is new, but I do not doubt that in the next year or so, we will see a couple who was turned away by a judge suing over the denial in federal court. Assuming the Supreme Court does not choose to take on Kim Davis’ case https://freethoughtnow.org/the-fight-for-same-sex-marriage-equality-is-backer her “right” to turn away same-sex couples applying for marriage licenses as a county clerk, such a case might be an attractive prospect for a court that is constantly looking for opportunities to reinforce a pro-religious hierarchy and strip back same-sex marriage rights piece by piece. A Supreme Court-recognized religious exemption for judges could open the door to other state actors in the marriage process to condition access to a legal right based on religious proclivities, creating greater barriers to access for same-sex couples on a national level. In the meantime, judiciaries in other states seeking to delegitimize same-sex marriage may attempt to adopt the Texas rule into their own codes of judicial ethics.
Fighting this rule, and future rules like them is going to be difficult. The judicial ethics process is not as publicly accessible as the standard legislative process, and often happens quietly, behind the scenes, without the public even knowing. But that doesn’t mean there isn’t anything to be done. When there is a lack of transparency, public awareness becomes power. At the county level, judges are typically held accountable at the ballot box — whether through direct election or through public votes to retain them as judges after they have been appointed. If you live in Texas (or find yourself in a future state that adopts a similar exemption), contact your local judges to find out if they intend to turn same-sex couples away. If they say yes, make that public knowledge. Work in conjunction with your friends, family, neighbors and broader communities to send a clear message that religious bigotry will not be electorally viable in your county. You will likely have more allies than you’d expect.
#religion /
On Oct. 24, the Texas Supreme Court issued an order amending the state’s judicial ethics code https://www.them.us/story/texas-same-sex-marriage-equality-deny-religious-beliefs o that judges may “publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.”
While the change is couched in the language of protecting conscience, its real‑world consequence is to allow state actors — judges whose authority and impartiality are vested in the public trust — to refuse the legal duties of their office when they conflict with religious belief. For same‑sex couples in Texas, this signal from the bench is more than symbolic: It threatens access, equality and the stability of the promise of marriage as a protected civic institution.
Like many professions, the actions of judges are regulated by a formal code of conduct that helps outline what is and is not ethical behavior while acting in their official capacity. These rules are meant to help ensure impartiality, hypothetically establishing that everyone has access to a fair and equal justice system. It’s not possible to accurately predict every ethical scenario a judge may encounter, however, so in order to provide clarity as new situations arise, most rules of judicial conduct are also accompanied by “comments” that act as more detailed guidance.
In Texas, the Code of Judicial Ethics states that a judge’s “extra-judicial activities” should not “cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Seems reasonable enough. You probably don’t want a judge running around with the mafia or something similar, only to turn around and be responsible for sentencing those same people in a criminal trial.
But not every scenario is as clear cut as this, as demonstrated by the series of cases that brought us to the new commentary. In the decade since Obergefell v. Hodges legalized same-sex marriage in all 50 states, any number of challenges to the rulings have been made, including various state actors seeking “conscience protections” to be exempted from having to do their jobs and participate in various steps of the same-sex marriage process.
Among these was a Texas judge, Diana Hensley https://www.them.us/story/texas-same-sex-marriage-equality-deny-religious-beliefs, ho in 2019 was sanctioned under the “extra-judicial conduct” rule for refusing to marry same-sex couples. Though the State Commission on Judicial Conduct withdrew Hensley’s sanction last year after she sued on religious freedom grounds, another challenge to the sanction was made by Jack County Judge Brian Umphress. Umphress, represented by the First Liberty Insitute, argued that he was concerned he would face similar sanctions for his campaigns against same-sex marriage, which brought the rule in front of the Texas Supreme Court.
The court was highly sympathetic to both Umphress and Hensley, with the chief justice writing an opinion in Hensley’s favor last year stating that same-sex couples could just find a different judge to marry them, while Hensley could “\[go\] back to work, her Christian conscience clean, her knees bent only to her God https://www.them.us/story/texas-same-sex-marriage-equality-deny-religious-beliefs#:~:text=went%20back%20to%20work%2C%20her%20Christian%20conscience%20clean%2C%20her%20knees%20bent%20only%20to%20her%20God..”
This sympathy culminated in a new, updated comment, which clarifies that the “extra-judicial conduct” rule should not apply to a religious refusal to perform a same-sex marriage, reading: “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.”
This is a clear, direct, government-sanctioned order that permits judges to place their own religious beliefs over the oath of office https://statutes.capitol.texas.gov/docs/cn/htm/cn.16.htm hat they take as judges to faithfully execute the duties of their office (which includes performing legal marriages).
I want to be clear that this is different from the legal carveouts that have been outlined for ministers and religious institutions opposing same-sex marriage in laws such as the federal “Respect for Marriage Act https://freethoughtnow.org/legislative-conundrums-respect-for-marriage-act/.” hese circumstances involve a private, religious ceremony, which, even if we don’t agree with the theology, likely should be protected from government interference under the First Amendment. In this case, we are talking about secular judges wielding the authority of their state government, performing secular ceremonies. Marriage in the United States is a legal institution that grants rights and protections to couples, both during the marriage and in the event of its dissolution. The ceremony may have a religious element to it if the couple so chooses, but that element is not required in order to be a legally recognized marriage. These judges are not making declarations about whether the couple in front of them are married in the eyes of their church or their god. That’s not their domain. Instead they are being asked to make declarations about this couple being married in the eyes of the law — which is their domain.
The new distinct exemption adopted by the Texas high court is a clear undermining of the government’s responsibility to maintain neutrality. They did not even bother to mask it under vague language of a broad “moral” or “ethical objection” to a marriage they may not agree with. The Texas Supreme Court instead created a direct, government-endorsed hierarchy of rights, which explicitly places the religious beliefs of individual judges above the constitutional right to same-sex marriage.
This new hierarchy is going to cause real, tangible problems for same-sex couples in the Lone Star State. While you do not need a judge to have a secular wedding ceremony, it is still one of the most common options for couples who do not wish to be married by a religious officiant. Particularly for couples who are uninterested in the traditional “big white wedding,” or couples who are speeding up their marriage timelines out of fear of the looming possibility that Obergefell will be overturned soon, courthouse weddings offer a quick, cost-effective option for ensuring they have access to the legal status and protections of marriage.
In the wake of this new development, we’re likely going to see an increase in delays and rescheduling for couples who may suddenly find themselves turned away at the whims of the judge. We’re also going to see a rise in geographic gaps that disproportionately impact same-sex couples in rural communities. This particular impact will hit especially hard in a state such as Texas, where communities are far more spread out between wide stretches of land than in smaller states.
It’s not just the logistical impact we should be concerned about, but also the clear and distinct moral and emotional injury that will be caused to these couples. Same-sex couples in Texas, already worried about their precarious future, now have to wonder if they will be publicly turned away at the courthouse, a public venue and community resource. Couples who are turned away will be faced with the indignity of relegation to second-class citizenship, likely in full view not only of the family and friends they might have invited to witness the event, but also by broader community members conducting other business. Even for couples who successfully get married, their wedding day will still be marred by the anxiety of the sheer possibility of being turned away, particularly in jurisdictions that do not require an appointment for a courthouse wedding. The fact that this is a government service makes this insult particularly keen, as it is a reminder that while same-sex couples have to comply with all of the same laws as their opposite-sex counterparts, they are not guaranteed access to all of the same benefits.
The implications of this rule will reach far beyond judges and far beyond Texas. This exemption is new, but I do not doubt that in the next year or so, we will see a couple who was turned away by a judge suing over the denial in federal court. Assuming the Supreme Court does not choose to take on Kim Davis’ case https://freethoughtnow.org/the-fight-for-same-sex-marriage-equality-is-backer her “right” to turn away same-sex couples applying for marriage licenses as a county clerk, such a case might be an attractive prospect for a court that is constantly looking for opportunities to reinforce a pro-religious hierarchy and strip back same-sex marriage rights piece by piece. A Supreme Court-recognized religious exemption for judges could open the door to other state actors in the marriage process to condition access to a legal right based on religious proclivities, creating greater barriers to access for same-sex couples on a national level. In the meantime, judiciaries in other states seeking to delegitimize same-sex marriage may attempt to adopt the Texas rule into their own codes of judicial ethics.
Fighting this rule, and future rules like them is going to be difficult. The judicial ethics process is not as publicly accessible as the standard legislative process, and often happens quietly, behind the scenes, without the public even knowing. But that doesn’t mean there isn’t anything to be done. When there is a lack of transparency, public awareness becomes power. At the county level, judges are typically held accountable at the ballot box — whether through direct election or through public votes to retain them as judges after they have been appointed. If you live in Texas (or find yourself in a future state that adopts a similar exemption), contact your local judges to find out if they intend to turn same-sex couples away. If they say yes, make that public knowledge. Work in conjunction with your friends, family, neighbors and broader communities to send a clear message that religious bigotry will not be electorally viable in your county. You will likely have more allies than you’d expect.
#religion /
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