Texas judges who decline to officiate same-sex marriages for reasons of sincere religious belief will no longer face discipline, following a change to the state’s judicial conduct code.
The Texas Supreme Court amended the code last week in response to litigation brought by McLennan County Justice of the Peace Dianne Hensley, who in 2019 said performing such ceremonies would be “inconsistent with her religious faith.”
After the State Commission on Judicial Conduct issued a public warning asserting her refusal undermined confidence in her impartiality, Hensley ceased performing all weddings.
On Oct. 24, the court approved a new comment to Canon 4 of the Texas Code of Judicial Conduct stating, “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,” with the revision taking immediate effect.
Hensley sued the commission in December 2019 under the Texas Religious Freedom Restoration Act, alleging the warning substantially burdened her free exercise and seeking $10,000 in lost income from forgoing opposite-sex weddings, plus attorney’s fees.
Although lower courts dismissed the case in 2021 for failure to exhaust administrative remedies, the Texas Supreme Court in July 2024 revived most of her claims, calling them “clearly sufficient” under TRFRA and allowing the suit to proceed.
Prompted by a request from the U.S. 5th Circuit for clarity on the code while Hensley’s federal case continues, the new comment effectively lifts the sanction against her and protects other judges from similar penalties.
Jonathan Saenz, president and attorney for Texas Values, which filed an amicus brief supporting Hensley in 2023, said the update “should make it crystal clear that this religious freedom applies statewide, including in the case of Judge Diane Hensley,” and may resolve remaining lower-court disputes.
“The Texas Supreme Court got it right with this important victory for religious freedom. In a state where religious freedom is widely supported, it’s common sense that a judge should not be punished for sincerely held religious beliefs,” Saenz said. “A judge should not have to choose between their conscience and their career.”
Because Texas judges and justices of the peace are not obligated to officiate weddings, post-Obergefell guidance had treated them as required to serve both same-sex and opposite-sex couples—or neither; the new rule permits selective refraining based on religious objections.
The revision arrives as the U.S. Supreme Court prepares for a Nov. 7 private conference concerning a same-sex marriage challenge from former Kentucky clerk Kim Davis, who refused marriage licenses to gay couples after Obergefell legalized such unions nationwide.
