Texas judges who decline to perform a wedding ceremony based on a “sincerely held religious belief” do not violate the state’s rules on judicial impartiality, according to a comment the Texas Supreme Court added to the state’s judicial conduct code last week.
The high court’s comment on Oct. 24, effective immediately, could have statewide implications for gay marriage and potentially play a role in a federal lawsuit attempting to overturn the U.S. Supreme Court decision that legalized gay marriage.
The rule change appears to answer a question of state law that the U.S. 5th Circuit Court of Appeals posed to the Texas Supreme Court in April, which was prompted by a lawsuit challenging the State Commission on Judicial Conduct’s now-withdrawn sanction of a Waco judge who refused to marry gay couples while continuing to marry straight couples. The plaintiff in that suit, a North Texas county judge, sued saying he was afraid he could face the same punishment.
Texas Supreme Court clerk Blake Hawthorne said in an email to KERA News the court cannot comment on the rule change.
“The order speaks for itself, and the Court cannot comment on its connection to pending litigation,” Hawthorne said.
The State Commission on Judicial Conduct declined to comment.
The court’s clarification amended Canon 4 of the Texas Code of Judicial Conduct, which prohibits judges from doing things outside their judicial role that would cast doubt on their ability to act impartially or interfere with the proper performance of judicial duties.
It’s the rule the commission accused Waco Justice of the Peace Dianne Hensley of violating when it issued a public warning against her in 2019, saying her refusal to marry people based on their sexual orientation cast doubt on her ability to appear impartial as a judge.
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The Texas Supreme Court has yet to directly answer the 5th Circuit’s certified question, but Jason Mazzone, a law professor at the University of Illinois at Urbana-Champaign who has written about the case, said the court’s comment seems to resolve Umphress’ claims.
Someone could, however, challenge a judge’s decision not to marry gay couples on constitutional equal protection grounds in the future, Mazzone said.
“One of the claims that I think will be made in response to litigation that is likely is that, ‘well, there are other people who can perform the wedding ceremony, so you can’t insist that a particular judge do it,’” Mazzone said. “But that, of course, is not how equal protection works, and it’s not how we expect government officials to operate.”
Douglas Lang, one of the attorneys representing the commission in Umphress’ case, said he doesn’t believe the new comment answers the certified question.
“I wouldn’t prejudge what the Supreme Court says,” Lang said. “We’ve suggested in our briefs what we think they oughta say, but that’s what makes an appeal.”
See here for the most recent update in the Dianne Hensley saga. The bit after the ellipsis refers to a different case, brought by a rural County Judge, who can officiate weddings but isn’t a “judge” in the traditional sense. I agree with Jason Mazzone, this is not how equal protection works. Or at least, it’s not how it’s supposed to work and it’s not how it did work before SCOTUS got so thoroughly corrupted. I for one will prejudge what our Supreme Court is going to say, because I think they’ve already said it. They just haven’t put it in an opinion yet.
One more thing:
The high court’s update also comes as Texas voters are being asked to weigh in on changes to the makeup of state judicial commissioners during the Nov. 4 constitutional amendment election. Under Proposition 12, the governor would appoint seven members of the public out of the commission’s 13 members. The rest would be a variety of state judges and all would need Senate approval.
Two former public members of the commission alleged they were removed from the commission after how they voted on Hensley’s judicial discipline.
Yeah. Vote against Prop 12 if you haven’t already. I mean, it would be effing hilarious if Gina Hinojosa beats Greg Abbott next year and the Republicans all have to face the reality of giving her all that much extra power, but it’s still not right for the Governor to be able to tilt the scales like that. The Commission is fine as it is.