AUSTIN (Nexstar) – Texas judges and justices of the peace, who are legally allowed to perform wedding ceremonies, will not face punishment if they refuse to perform a ceremony based on a “sincerely held religious belief.” According to a new interpretation From the Code of Judicial Conduct issued by the Supreme Court of Texas.
The state’s highest court issued the new commentary in its Code of Judicial Conduct on October 24. “A judge’s public refusal to perform a wedding based on a sincere religious belief does not constitute a violation of these laws,” it said.
The commentary was placed on the section of the Code of Conduct that deals with extrajudicial 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 this case, a North Texas county official sued the state in federal court over concerns that he would face penalty if he refused to perform marriages for same-sex couples while still officiating weddings for opposite-sex couples.
That official, Jack County Judge Brian Umphress, said performing marriages for same-sex couples was against his religion, and forcing him to perform such a wedding would violate his First Amendment rights.
His case went to the Fifth Circuit Court of Appeals, which then put the question to the Texas Supreme Court. The state court does not appear to have formally answered the federal court’s question, but the rule change appears to have resolved the Umphris case.
Nexstar has reached out to Umphress for 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, has followed the Umphris case closely. He said the broad language used by the Texas Supreme Court could open the door for justices to reject not only same-sex marriage, but straight marriage as well. When asked if this could affect interracial marriage, Mazzone said it could.
“Given the wording of the Texas Supreme Court’s comment, you seem to be suggesting that a judge who says, ‘For religious reasons I will not do interracial marriage,’ that also falls within the scope of the Texas Supreme Court’s comment and would not result in any type of discipline of the judge,” Mazzone explained.
Although same-sex marriage remains legal in Texas, Mazzone said the state has become curious about adding a barrier for same-sex couples. He believes this decision by the Supreme Court raises a federal constitutional issue, and is confident that a lawsuit could be filed in the future.
The law professor says that refusing to marry because of sexual orientation would violate the Fourteenth Amendment to the US Constitution and the Equal Protection Clause, which protects individuals and groups from government discrimination. Mazzone said he saw some people trying to defend the Texas Supreme Court’s decision by saying that same-sex couples could go to another judge to officiate their wedding if they were denied. But he does not agree.
“The fact that there is an alternative does not solve the problem of equal protection,” Mazzone explained.
LGBTQ advocates took notice in the wake of the Supreme Court’s decision.
“No person’s religious freedom should be used as a weapon to harm other individuals,” said Brad Pritchett, interim CEO of Equality Texas. “I think in many ways this provision is what gives people the power to do what they do.”
Pritchett said the move represents additional discrimination against the LGBTQ community in Texas. “Our community has been facing discrimination in a place like Texas for decades, decades, decades, and that discrimination continues to increase and actually rise,” Pritchett said.
The American Civil Liberties Union of Texas said it is monitoring the situation.
“It’s really disappointing,” said Ash Hall, an LGBTQAI+ rights policy and advocacy expert at the American Civil Liberties Union of Texas. “To be a judge is to be a public servant. He offered the marriage contract to the general public, but then turned around and said, ‘Unless this couple is an LGBT couple,’ “This is discrimination. This does not serve the general public.”