AUSTIN (Nexstar) – Texas judges and justices of the peace, who are legally allowed to perform marriage ceremonies, no longer face punishment if they refuse to perform the ceremony based on a “sincerely held religious belief.” According to a new interpretation Code of Judicial Conduct issued by the Texas Supreme Court.
The state supreme court on October 24 issued a new commentary in the code of judicial conduct. It reads, “It is not a violation of these principles for a judge to refrain from publicly performing a marriage ceremony on the basis of a sincerely held religious belief.”
This comment was placed in the 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 earlier this year to clarify a question about the state law.
In that case, a North Texas county official sued the state in federal court out of concern that he would face punishment if he refused to perform marriages for same-sex couples despite performing marriages for opposite-sex couples.
That official, Jack County Judge Brian Umphreys, said it was against their religion for same-sex couples to marry, and that forcing them to perform such a marriage would violate their First Amendment rights.
His case was taken to the Fifth Circuit Court of Appeals, which then referred the question to the Texas Supreme Court. The state court does not appear to have officially answered the federal court’s question, but its rule change appears to resolve Umphreys’s case.
Nexstar contacted Umphreys for comment on the state’s highest court’s latest move. He said he could not comment on pending litigation.
Jason Mazzone, professor of constitutional law at the University of Illinois Urbana-Champaign, followed the Umphreys case closely. He said the broad language used by the Texas Supreme Court could open the door for judges to reject not only same-sex marriage, but opposite-sex marriage as well. Asked whether this could affect inter-caste marriages, Mazzone said it could.
“Looking at the wording of the Texas Supreme Court comment, it seems as if you suggest that a judge who says, ‘For religious reasons I’m not going to perform interracial marriages,’ that would also fall within the scope of the comment issued by the Texas Supreme Court and would not trigger any type 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 barriers for same-sex couples. He believes this High Court decision raises a federal constitutional problem and believes a lawsuit may be filed in the future.
The law professor argues that denying marriage 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 trying to defend the Texas Supreme Court’s decision by saying that if they are ever denied, same-sex couples can go to another judge who will get them married. But he disagrees.
Mazzone explained, “The fact that an alternative exists does not solve the same security problem.”
LGBTQ advocates spoke out after the High Court’s decision.
“One’s religious freedom should not be used as a weapon to harm other individuals,” said Brad Pritchett, interim CEO of Equality Texas. “I think in many ways this kind of decision gives people the power to do that.”
Pritchett said the move increases discrimination against the LGBTQ community in Texas. “Our community has been facing discrimination for decades and decades and decades in a place like Texas, and that discrimination continues to increase and is really skyrocketing,” Pritchett said.
The Texas ACLU said it is monitoring the situation.
“It’s really disappointing,” said Ash Hall, policy and advocacy strategist on LGBTQAI+ rights for the Texas ACLU. “To be a judge is to be a public servant. To offer to perform marriages for the general public, but then to turn around and say, ‘unless the couple is an LGBTQAI+ couple,’ is discrimination. It is not a service to the general public.”
