TX Supreme Court responds to 5th Circuit in religious freedom case involving same sex marriage

The Texas Supreme Court has provided a response to the Fifth Circuit Court of Appeals in an ongoing case addressing religious freedom over whether judges can legally refrain from performing a wedding of same-sex couples based on sincerely held religious beliefs.

The court’s response is expected to impact two cases before different courts, the Austin Court of Appeals in Texas and the federal appellate court in New Orleans.

In the first case, McLennan County Justice of the Peace Dianne Hensley has said she cannot marry same-sex couples due to her religious beliefs. She created a referral program, established a low-cost option blocks away from her office, and offered “to pay any difference in cost for the same-sex couples she was referring,” First Liberty Institute, which is representing her, says.

No one filed a complaint about the process, but in 2019, the state Commission on Judicial Conduct (SCJC) officially reprimanded her for “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation in violation of Canon 4A(1) of the Texas Code of Judicial Conduct.”

She sued, arguing the reprimand was unconstitutional and the SCJC’s interpretation of Canon 4A(1) violates the Texas Religious Freedom Restoration Act, which prohibits government agencies from substantially burdening a person’s free exercise of religion.

In the second case, the SCJC reprimanded Jack County Judge Keith Umphress for the same reason and he also sued. His case is before the Fifth Circuit.

As the cases proceeded, the Texas Supreme Court issued an order in October clarifying that judges are permitted to refrain from performing same-sex weddings based on their sincerely held religious beliefs, The Center Square reported.

All eight justices signed the order to add a comment to Canon 4 of the Texas Code of Judicial Conduct, “Conducting the Judge’s Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations.” Canon 4 states, “A judge shall conduct all of the judge’s extrajudicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

The comment states: “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 SCJC has filed motions for partial summary judgment, asking the courts to dismiss lawsuits filed against it, arguing the Texas Supreme Court’s comment doesn’t apply to its reprimands.

“On October 24, 2025, the Supreme Court of Texas adopted a comment to Canon 4. However, because ‘[t]he Texas Constitution prohibits ‘retroactive law[s],’ the comment does not impact this litigation,” the SCJC’s motion states.

The “Plaintiff claims the recently added comment to Canon 4 ‘amends the judicial canons.’ However, that is demonstrably untrue – rather than adopting an amendment to Canon 4, the Supreme Court of Texas provided only a comment. Even if the comment applied to this case, it would not shed light onto how this Court should decide. The comment only gives a judge the authority to 'opt out' of officiating due to a sincere religious belief, but does not say that a judge can, at the same time, welcome to her chambers heterosexual couples for whom she willingly offers to conduct marriage ceremonies.”

Hensley and Umphress argue the SCJC’s perspective on the comment is misinterpreted.

The Fifth Circuit asked the Texas Supreme Court to weigh in, asking, “As a matter of Texas law, do judges violate Canon 4A(1) by publicly refusing to perform same-sex weddings on moral or religious grounds while continuing to officiate at opposite-sex weddings?”

The Texas Supreme Court has issued a formal reply, stating, “In an order issued on October 24, 2025, we adopted a comment to Canon 4, which clarifies that ‘[i]t is not a violation 2 of these canons for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.’ … Accordingly, the answer to the certified question is no.”

Both cases remain ongoing.