Texas Supreme Court says faith-based bigotry by judges doesn't violate ethics rules
The Texas Supreme Court has normalized religious discrimination in the judiciary, specifically against same-sex couples who want to get married
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The Texas Supreme Court has just issued an edict saying it’s perfectly fine for judges to refuse to perform same-sex weddings if that conflicts with their personal religious beliefs. More importantly, that act of open bigotry wouldn’t be treated as evidence that those judges have any animosity against LGBTQ people.
And the state’s highest court did all this with a single sentence.
On October 24, the Court altered the state’s judicial conduct code—the ethics rules for judges—by saying “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.”
Canon 4 is a set of rules dictating how judges should act in their free time so that people have no reason to doubt their impartiality in cases. It includes common sense items like how judges can join non-profit groups, but not if those groups are likely to appear before the court.
And now, all eight justices say, we can add another item to that list: There’s no violation of the ethical rules if judges refuse to perform weddings because their religion says those couples are sinning.
All of this is happening because of a years-long crusade by one person.
Back in December of 2019, Texas Justice of The Peace Dianne Hensley refused to marry gay couples who visited her courthouse, even though she’s a public official and not a priest. She was given a public warning by the Texas Commission on Judicial Conduct… which was really nothing more than a slap on the wrist. Instead of removing her from the job she refused to do, the Commission merely said she was “casting doubt on her capacity to act impartially” and that she could be punished in the future.
Hensley responded by suing the Commission because how dare anyone point out her Christian bigotry.
In its lawsuit, First Liberty argues, “The Commission violated the Texas Religious Freedom Restoration Act by investigating and punishing Judge Hensley for recusing herself from officiating at same-sex weddings, in accordance with the commands of her Christian faith.” Adding, “By investigating and punishing her for acting in accordance with the commands of her Christian faith, the State of Texas has substantially burdened the free exercise of her religion, with no compelling justification.”
No “compelling justification”?! The compelling justification was that people deserve to be treated equally under the law. A judge who offered to perform wedding ceremonies for straight couples but not gay ones had no business being a judge. Being Christian shouldn’t allow government officials to ignore the law. It wasn’t okay with Kim Davis, and it shouldn’t have been okay with Hensley.
And “substantially burdened”?! In no way did the Commission impede on her rights.
She was asking for $10,000 in damages because that was the money she was losing by not being allowed to perform (straight) weddings. She also requested a declaration that everyone in her position could pull the same stunt if their God commanded it.
In 2021, a judge tossed out her case on technicalities, including the fact that the commission had sovereign immunity from such lawsuits. An appeals court later affirmed that ruling. But Hensley asked the state’s highest court to take up the case, and that’s what they did in 2023.
Her lawyer, Jonathan Mitchell—better known as the former state solicitor general behind the state’s infamous abortion “bounty” law—argued that she had every right to discriminate on the basis of sexual orientation:
Mitchell further argued that state law protects people’s religious freedom unless there is a “furtherance of a compelling governmental interest.” He also said it prohibits wedding officiants from discriminating based on race, national origin or religion.
“Notably absent from that list of protected criteria that I just mentioned is any mention of discrimination on account of sex or sexual orientation,” Mitchell told justices. “It’s still permissible for wedding officiants — whether they’re judges or members of the clergy — to discriminate based on any other characteristic, as long as it’s not race, national origin or religion, when they decide which weddings they will officiate.”
Being a Christian, you see, allowed Hensley to be an anti-LGBTQ bigot, just not a racist one… even though both involve characteristics that people don’t choose for themselves.
The thing is: Hensley could have avoided this entire situation if she simply opted out of performing marriages. No one was forcing her to do that. But she wanted the ability to get paid to sign marriage certificates for straight couples and not gay ones, and she believed her religion took priority over the law, even though she was working for the government.
If we allow officials like her to pick and choose which rules to follow, it would throw the government into chaos. It would make a mockery out of civil rights.
(Under the new ethical rule, it’s not clear if racial discrimination that’s forbidden by law would be acceptable if motivated by religion.)
As the commission’s lawyer explained, no one was punishing, or even threatening to punish, Hensley for her religious views. It was all about her actions. If a Christian judge makes it clear that he doesn’t want to perform any marriages because of his anti-gay bigotry, that would be just fine. Hensley, however, wanted to offer the service while excluding certain people. That was the problem.
(Side note: In an interview with The Dallas Morning News in late 2023, Hensley said she hadn’t performed any marriages in years. She also claimed, falsely, that children with opposite-sex parents fare better in life. Then there was this anecdote about her now-deceased gay (!) brother:
After he had a falling out with their parents over what she described as “economics,” Hensley said she hired a detective to track him down once a year and take a photograph as a gift for their mother. One year, he was in Paris. Another year in Japan. Then Dubai.
Creepy.)
In any case, if Hensley wanted to get ordained and perform private wedding ceremonies just for straight, white, evangelical couples, no one would be complaining. But she had no business discriminating against certain Texans when she was working for the government.
Her lawyers argued that the U.S. Supreme Court already sided with a Colorado website designer who refused to make wedding websites for gay couples (something no gay person actually asked her to do). But there was an obvious difference between a private business owner and a government official. Why her own attorneys didn’t get that, I have no idea.
The concern over what the Texas Supreme Court would do was very real. After all, if she won, what would stop other judges from using religion as an excuse to deny justice to other potential clients?
But the case never really got resolved after that.
The Texas Supreme Court avoided her religious freedom argument, then the Texas Commission on Judicial Conduct dismissed its (already mild) sanctions on Hensley, then an appeals court said she could still proceed with her lawsuit… it was a hot mess with no end in sight. And while all that was happening, another bigoted Christian judge filed his own lawsuit for the same underlying reasons.
At some point, the Texas Supreme Court was going to have to make a decision.
And that’s basically what they did with this blanket rule change. It’s not a ruling on any case in front of them. They just put this out there.
The change sends a clear message that Texas judges who oppose marriage equality and don’t want to perform same-sex weddings—or judges who have any faith-based reasons for denying the marital legitimacy of a couple in front of them even if that couple can legally be married—cannot be reprimanded for any ethical violations.
The same edict could theoretically allow judges to avoid ethical consequences if they refuse to perform wedding ceremonies for mixed-race couples, or mixed-religion couples, as long as their bigotry stems from their faith. It could also let judges refuse to perform wedding ceremonies for people who had sex before marriage if pre-marital abstinence is a principle of their religion.
That doesn’t mean the judges are entirely off the hook, though.
If, for example, a gay couple goes to a Texas court to get married, and a judge refuses to sign off on it because of his or her faith, the gay couple could still file a lawsuit against that judge.
“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,’” [law professor Jason] Mazzone said. “But that, of course, is not how equal protection works, and it’s not how we expect government officials to operate.”
This entire situation leaves gay couples in Texas in a bind. On paper, they’re free to get married if they choose to. But the state’s highest court now says judges who don’t want to perform the ceremony and sign the necessary documents are free to do so.
It’s state-sanctioned discrimination.
This change to the ethics code isn’t just a minor tweak. It’s a declaration that prejudice is perfectly compatible with public service, as long as that prejudice wears a cross. The new rule sends a clear message to LGBTQ Texans that their humanity is conditional in the face of religious privilege. And who knows where else that slippery slope will lead.
On that front, this rule change isn’t really even about faith. It’s about power—who has it and who has to live beneath it. The justices have given government officials a license to discriminate by claiming it boils down to “sincerely held beliefs.” But that phrase has never been more than a green light for bigotry in courtrooms by people who think their faith exempts them from basic decency. Texas judges now have the state’s permission to act as if their courtroom is a church. That cheapens justice itself.
Instead of standing for equality under the law, Texas has chosen to use religion as a weapon. They chose to make it easier to further discriminate against people who are already struggling to protect their rights across the state.
(Portions of this article were published earlier)
There is absolutely nothing that cannot be justified in the name of a dearly held religious belief. Who gets to make the determination as to just how sincere those beliefs are? Ecclesiastical courts? In my view, if an elected official can refuse to perform a duty on the basis of religious belief, then that person is unfit for that office by definition.
Even the bigotry is bigger here in Texas.