AUSTIN, TX – Last week, the Texas Supreme Court clarified that the state’s judges can publicly refrain from officiating “same-sex-weddings” based on their sincerely-held religious beliefs. All nine Texas Supreme Court Justices certified an amendment to the state’s Code of Judicial Conduct that says declining to perform a wedding based on a sincere religious belief does not violate the state’s rules on judicial impartiality.

The change from the Texas High Court, made October 24, comes just two weeks ahead of a November 7 conference where the U.S. Supreme Court will consider whether to take Kim Davis’ lawsuit that could overturn the 2015 Obergefell opinion that legalized “same-sex marriage” nationwide. In Davis v. Ermold, Liberty Counsel represents Davis, the former Rowan County Kentucky Clerk who was the first victim jailed, sued, and held personally liable post-Obergefell for her sincerely held religious beliefs on marriage. The new Texas judicial policy as well as current litigation in Texas regarding officiating “same-sex marriages” may have implications regarding this Obergefell challenge.

The Texas amendment stems from several ongoing legal battles involving a McLennan County Justice of the Peace and a Jack County judge. In 2019, the Texas Commission on Judicial Conduct issued a public warning to Waco Justice of the Peace Dianne Hensley for performing opposite-sex weddings while politely recusing herself from officiating “same-sex weddings” on the grounds that it “cast doubt” on her impartiality as a judge. She filed a lawsuit under the Texas Religious Freedom Restoration Act for infringement on her free exercise of religion. In 2020, Jack County Judge Brian Umphress also sued the commission citing he could likewise be subject to judicial discipline similar to Judge Hensley for performing just traditional weddings according to his religious faith. While a federal judge ruled that Judge Umphress did not have standing to sue, the Fifth Circuit Court of Appeals revived his claims and turned to the Texas Supreme Court to weigh in on the matter. The Texas High Court has yet to respond to the Fifth Circuit, but the Court’s judicial conduct amendment seemingly provides Judge Umphress with his requested protection.

As for Judge Hensley, her case was also initially dismissed but then revived in June 2024 by the Texas Supreme Court, which ruled she had “clearly sufficient” grounds to sue. While the Texas High Court made only a procedural ruling that her case could move forward and did not make a merits-based ruling on her religious liberty claims, Chief Justice Jimmy Blacklock wrote in a concurring opinion that the religious liberty issue “should be resolved in Judge Hensley’s favor.”

In his opinion, Chief Justice Blacklock concluded that the Obergefell opinion, which established a “new right” to “same-sex marriage,” does not supersede the “pre-existing” or “more deeply rooted” constitutional principles of religious liberty and free speech, or even the prohibition on religious tests for holding public office. He stated that Obergefell affected the legal landscape in many ways but that it does not compel the Texas judiciary to ignore or violate the religious beliefs of its judges.

“[Obergefell] did not give same-sex couples a right to coerce a judge with religious objections to officiate same-sex weddings. Nor did it give the Texas Judicial Conduct Commission the right to punish a Christian judge who politely [refers] same-sex couples down the street,” wrote Chief Justice Blacklock. “Judge Hensley’s actions were not unethical, unconstitutional, or illegal in any way. Politely declining to participate in a same-sex wedding for religious reasons does not demonstrate bias or prejudice against gay people. Nor does it demonstrate an inability to impartially judge their lawsuits.”

Chief Justice Blacklock noted that after Obergefell many local Texas judges stopped performing all marriages for religious reasons and “feared” being compelled to officiate same-sex weddings or face sanction. But when judges put on the robe they are “not divested of their free speech rights,” the opinion reads.

If Obergefell makes Christian judges unfit for the robe, then free speech, religious liberty and the bans on religious tests can all be “undermined by unduly aggressive interpretations” of “same-sex marriage rights” announced in that opinion, wrote Chief Justice Blacklock.

These “ancient pillars” of American law have “roots far deeper than same-sex marriage,” he concluded.

Chief Justice Blacklock’s opinion bears resemblance to Liberty Counsel’s First Amendment argument in Davis v. Ermold. While Obergefell did not create a right for a specific judge to officiate a wedding, it also did not establish a right to obtain a marriage license with a name on it from a specific clerk. Plaintiffs David Ermold and David Moore sued Davis for precisely that reason to force her to put her name on their marriage license as a mockery to her Christian beliefs that marriage is meant to be between one man and one woman. Ermold and Moore’s claims stem from “hurt feelings” connected to Davis’ religious expression. 

However, Liberty Counsel argues that government officials are not stripped of all First Amendment defenses upon their election, which means Davis has a First Amendment refuge for her religious expression that protects her from liability for Ermold and Moore’s hurt feelings.

Davis’s religious expression has First Amendment protection, and she should never have been put in jail or faced liability because of Obergefell, noted Liberty Counsel. 

Liberty Counsel Founder and Chairman Mat Staver said, “Obergefell v. Hodges cannot not override the free speech and religious exercise protections of the First Amendment. Texas judges, as well as Kim Davis, have the religious liberty to decline their involvement with ‘same-sex weddings.’ Like the abortion decision in Roe v. Wade, Obergefell was egregiously wrong from the start. This opinion has no basis in the Constitution. The High Court should overturn this egregious opinion from 2015.”

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