Texas Supreme Court allows judges to refuse performing same sex marriages

AUSTIN (Nexstar) — Texas judges and justices of the peace, who are legally allowed to perform wedding ceremonies, now will not face punishment if they refuse to perform a ceremony on the basis of a “sincerely held religious belief,” according to a new interpretation of the Judicial Code of Conduct issued by the Texas Supreme Court.

The state’s highest court issued the new comment in the judicial code of conduct on Oct. 24. It reads, “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 comment was placed in a section of the code of conduct that deals with extra-judicial activities. The change comes after a federal appeals court formally asked the Texas Supreme Court to clarify a question about state law earlier this year.

In that case, a north Texas county official had sued the state in federal court over concerns he would face punishment if he refused to perform a marriage for same sex couples while still performing weddings for opposite-sex couples.

That official, Jack County Judge Brian Umphress, said performing a marriage for same sex couples goes against his religion, and forcing him to perform such a wedding would violate his First Amendment right.

His case was elevated to the Fifth Circuit Court of Appeals which then posed the question to the Texas Supreme Court. It does not appear the state court officially answered the federal court’s question, but its rule change does appear to resolve Umphress’ case.

Nexstar reached out to Umphress to comment on the latest move by the state’s highest court. He said he could not comment on pending litigation.

Jason Mazzone, a constitutional law professor at the University of Illinois Urbana-Champaign, followed the Umphress case closely. He said the broad language used by the Texas Supreme Court could open the door for judges to deny not just same-sex marriages, but also opposite-sex weddings as well. When asked if this could impact interracial marriages, Mazzone said it could.

“Given the wording of the comment of the Texas Supreme Court, it does seem as you suggest that a judge who says, ‘For religious reasons I’m not going to perform the interracial marriage,’ that too would fall within the scope of the comment that the Texas Supreme Court issued and would not trigger any sort of discipline of the judge,” Mazzone explained.

Although same-sex marriage is still legal in Texas, Mazzone said the state has become an outlier in adding a barrier to same-sex couples. He believes this decision by the high court raises a federal constitutional problem and is confident a lawsuit could be filed in the future.

The law professor argues denying a wedding because of sexual orientation would violate the 14th Amendment of the U.S. Constitution and its Equal Protection Clause, which protects individuals and groups from government discrimination. Mazzone said he has seen some people try to defend the Texas Supreme Court’s decision by saying same-sex couples could go to another judge that will perform their wedding if they are ever denied. But he disagrees.

“The fact that there is an alternative does not resolve the equal protection problem,” Mazzone explained.

LGBTQ advocates sounded off following the decision by the high court.

“No one’s religious freedom should be used as a weapon to harm other individuals,” Brad Pritchett, the interim CEO of Equality Texas, said. “I think in a lot of ways that’s what a ruling like this gives people the power to do.”

Pritchett said the move is added discrimination against the LGBTQ community in Texas. “Our community is facing discrimination in a place like Texas for decades, and decades, and decades, and that discrimination is just continuing to increase and skyrocket actually,” Pritchett said.

The Texas ACLU said it is monitoring the situation.

“It’s really disappointing,” Ash Hall, the policy and advocacy strategist on LGBTQAI+ rights for Texas ACLU, said. “To be a judge is to be a public servant. Offering to do marriages for the general public, but then turning around and saying, ‘Unless that couple is a LGBTQAI+ couple,’ that’s discrimination. That’s not serving the general public.”

By mfnnews