Under a new rule, judges in Texas can refuse to officiate same-sex marriages due to religious beliefs without facing disciplinary repercussions.
On Oct. 24, the Texas Supreme Court’s judicial code of conduct was amended in response to a lawsuit by McLennan County Justice of the Peace Dianne Hensley. In 2019, she declined to marry a same-sex couple, saying it would be “inconsistent with her religious faith.” Hensley received a public warning from the State Commission on Judicial Conduct, who said her behavior produced distrust in her “capacity to act impartially.”
Hensley, who then stopped performing weddings altogether, filed suit under the Texas Religious Freedom Restoration Act (TRFRA) in December 2019. Arguing that her religious rights were violated, she requested $10,000 in attorneys’ fees and lost income. In 2021, lower courts dismissed her case. However, the case reached the Texas Supreme Court in July 2024, which reversed most of the dismissal.
The state high court pronounced her claim as valid under TRFRA. All nine justices certified the new amendment to Canon 4 in the Texas Code of Judicial Conduct, which declares that “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 change took effect immediately, which removed sanctions against Hensley.
Since the 2014 Obergefell v. Hodges ruling, which legalized same-sex marriage nationally, judges and justices of the peace in Texas who officiated weddings were required to perform all weddings, whether same-sex and opposite-sex, or no weddings at all.
Chief Justice James Blacklock wrote a concurring opinion supporting Hensley.
“[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 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.”
On Nov. 7, the U.S. Supreme Court will hold a private conference regarding the case of Kim Davis, a Kentucky clerk who was jailed for refusing to issue same-sex marriage licenses due to her religious beliefs. Davis was sued and held liable post-Obergefell. Davis appealed a $100,000 jury verdict for emotional damages and $260,000 for attorney fees.
The recent Texas rule change may have implications for Davis’ case.
