A judge in Texas is suing a state commission because he wants to be able to refuse to marry same-sex couples.
Jack County District Judge Brian Umphress sued all 13 of the members of Texas’s Commission on Judicial Conduct because they gave another judge an “official warning” for refusing to marry same-sex couples. Umphress argues that being forced to marry same-sex couples violates his First Amendment rights to free speech and freedom of religion.
Umphress’s federal lawsuit stems from a case from late last year involving McLennan County Justice of the Peace Dianne Hensley (R). Since the Supreme Court legalized marriage equality across the U.S. in its 2015 Obergefell v. Hodges decision, she has been refusing to perform marriages for same-sex couples even though she still performs them for opposite-sex couples, arguing that same-sex marriages “offend” God.
Since 2016, same-sex couples that ask her to officiate their wedding got a notice telling them that she “has a sincerely held religious belief as a Christian, and will not be able to perform any same-sex weddings.”
In Waco, Texas, where she’s based, she is the only judge still performing marriages at all in the wake of Obergefell. Elected judges don’t have to perform marriages in Texas; it’s something they can do for extra cash in their spare time.
The Commission on Judicial Conduct, though, disagreed that she was allowed to only perform opposite-sex marriages, and it went so far in its decision as to say that discriminating against LGBTQ people was “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”
That set Umphress off. He claims in his complaint that he, too, performs opposite-sex marriages but refuses to perform same-sex marriages. His suit says that he is “engaged in numerous extra-judicial activities that evince disapproval of homosexual behavior,” and if the Commission believes that a Texas’s judge’s side hustle reflects on their impartiality, then effectively the Commission is telling him he can’t go to his anti-LGBTQ church anymore.
The Commission, of course, did not evaluate Hensley based on what church she attends. The Commission’s website says that it is “responsible for investigating allegations of judicial misconduct,” not the private lives of judges. Since Hensley needs the title of justice of the peace to conduct marriages, the Commission believes that her off-the-clock work is still subject to its oversight.
Umphress says in the suit that he “applies the law faithfully and impartially to every litigant who comes before him, regardless of their sexual behavior or sexual orientation” but believes that “homosexual conduct of any sort is immoral and contrary to Holy Scripture.”
He is also seeking reelection in 2022 and “intends to campaign for office as an opponent of same-sex marriage,” so marrying same-sex couples would hurt his reelection chances. His complaint does not explain how a judge can act as “an opponent of same-sex marriage” while applying the law “faithfully and impartially.”
Hensley, the judge who was originally sanctioned, is also suing the Commission, saying that she was punished for being “faithful to my religious beliefs.”
Texas Attorney General Ken Paxton (R) is refusing to defend the Commission in that case even though he is obligated to defend state agencies in lawsuits.
“We believe judges retain their right to religious liberty when they take the bench,” a spokesperson for Paxton said.