Jack County Judge Brian Keith Umphress
AUSTIN - When asked if judges are prohibited from publicly refusing to perform same-sex weddings for religious reasons, the Texas Supreme Court said, “no.”
The high court’s answer stems from a lawsuit brought by Brian Keith Umphress, who serves as a county judge in Jack County.
Umphress asserts the State Commission on Judicial Conduct is threatening judges and justices of the peace with discipline if they refuse to perform same-sex weddings while continuing to officiate at opposite-sex marriage ceremonies.
In November of 2019, the commission issued a “public warning” to Dianne Hensley, a justice of the peace in McLennan County, who recused herself when asked to perform same-sex weddings.
After the commission disciplined Hensley, Umphress sued its members in federal district court, alleging that the commission’s threatened discipline violated his federal constitutional rights.
“The Commission’s actions against Judge Hensley are threatening the religious freedom and free-speech rights of every judge in Texas, who must now decide whether to capitulate to the Commission or risk investigation and punishment for acting in accordance with their faith,” states Umphress’ appellate brief.
Back in April, the U.S. Court of Appeals for the Fifth Circuit certified the following question: “Does Canon 4A(1) of the Texas Code of Judicial Conduct (which concerns a judge’s extra-judicial activities) prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?”
To help answer the question, the Supreme Court solicited briefing and received amicus briefs from several “helpful” groups, including the First Liberty Institute.
“At heart, the Fifth Circuit’s question asks whether the State Commission on Judicial Conduct or this Court is the final arbiter of the Code of Judicial Conduct,” First Liberty’s brief states. “It is unmistakably this Court.
“Judge Umphress, like Judge Hensley, is entitled to the protections of citizenship, including religious liberty and free speech. Should the Court answer the Fifth Circuit’s certified question in the affirmative, it would give approval to the Commission’s threats to Judges Umphress and Hensley.”
Umphress is seeking declaratory and injunctive relief that would restrain the Commissioners from disciplining judges who refuse to perform same-sex weddings, regardless of whether the judge’s refusal is based on religious or secular reasons.
Supreme Court case No. 25-0288
