While protections for religious conscience related to participating in same-sex “marriages” have held firm in the non-commercial space (churches, religious institutions), the matter has continued to be contested for those in public spaces—like government employees. Judge Umphress’ case is now heading to the Texas Supreme Court after he refused to officiate such ceremonies for reasons of religious consciousness. The Center just filed an amicus brief on his behalf.
Judge Umphress’ filed suit in federal district court and was dismissed on standing. The Fifth Circuit reversed and remanded to the Texas Supreme Court certifying to that court that it address the core question: Does Canon 4A(1) of the Texas Code of Judicial Conduct prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?
The Center brief makes two arguments:
- The Commission’s action violated the Texas Religious Freedom Restoration Act (TRFRA) by substantially burdening Judge Umphress’s religious conscience without a compelling governmental interest.
- Based on a detailed review of the history and purpose of religious freedom protections, laws such as TRFRA should be interpreted vigorously to prevent impositions on religious conscience and the suffering and conflict that such impositions cause.
This is the second instance within the last two years where the Center has made similar arguments. In 2023, a local judge politely declined to officiate same-sex weddings (a discretionary function, not an official duty) but then was publicly disciplined by the state judicial commission. In 2024, the Texas Supreme Court issued an opinion in Hensley v. State Commission on Judicial Conduct. The court held that the lower court must consider the judge’s defense under TRFRA. Since then, the commission rescinded its reprimand and moved to dismiss the case as moot. On May 30, 2025, the state appeals court determined the case is not moot and remanded it back to the trial court to review the merits of Hensley’s TRFRA claim.
