(LifeSiteNews) – Texas judges will not be forced to officiate same-sex “marriages” if doing so offends their religious beliefs, the Texas Supreme Court determined in an update to the state’s judicial code of conduct.
On October 24, Canon 4 of the code, “Conducting the Judge’s Extra-Judicial Activities to Minimize the Risk of Conflict with Judicial Obligations,” was amended to clarify that “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,” NBC affiliate KCEN reported.
The change stems from the ongoing legal battle of McLennan County Justice of the Peace Dianne Hensley, who in 2019 received a public warning from the Texas Commission on Judicial Conduct for recusing herself from conducting same-sex weddings on the grounds that her stand “cas(t) doubt on her capacity to act impartially.” She filed a Texas Religious Freedom Restoration Act lawsuit alleging infringement of her free exercise of religion.
Hensley’s case was dismissed in 2021 but revived last year by the state’s highest court, finding she had “clearly sufficient” grounds to sue. Her case has not yet received a final decision on the merits, but the judicial commission has since withdrawn the sanctions against her and the clarification of the rules will have broad ramifications for future cases.
“Judge Hensley treated them (the same-sex couple she turned down) respectfully,” now-Chief Justice Jimmy Blacklock wrote in a concurring opinion last year, Houston Public Media reported. “They got married nearby. They went about their lives. Judge Hensley went back to work, her Christian conscience clean, her knees bent only to her God. Sounds like a win-win.”
“Now going forward, every judge in Texas will enjoy the freedom Judge Hensley has fought so hard for in her case,” said attorney Hiram Sasser of First Liberty Institute. “As for her case specifically, this amendment melts away the reasons the Commission relied on to punish Judge Hensley.”
Thirty-two states still have duly-enacted same-sex “marriage” bans on the books, according to World Population Review (which lists 33, but as of this writing still has not been updated to reflect Colorado’s April repeal of its unenforced ban), all of which have been blocked from enforcement since the U.S. Supreme Court’s 2015 Obergefell v. Hodges ruling that forced all 50 states to recognize same-sex “marriage.” Only 18 states plus the District of Columbia have no ban in place.
As a practical matter, even if the Supreme Court reversed Obergefell, recognition of same-sex “marriage” would still be mandatory nationwide, thanks to former President Joe Biden signing the so-called Respect for Marriage Act, which codified Obergefell, in 2023.
Three of the current sitting justices — Chief Justice John Roberts and conservatives Justices Clarence Thomas and Samuel Alito — dissented from Obergefell. The latter two are considered reliable votes to overturn if the chance arises, given statements both have made in the years since. But it is less certain how Roberts and the Court’s three more recent Republican appointees would rule, given past statements about deferring to precedent and their mixed records on cases important to conservatives.
Meanwhile, at least half a dozen states have adopted resolutions urging the nation’s highest court to revere Obergefell. They have no legal force or can they begin any legal battle that could eventually put the issue back before the nation’s highest court, but they raise awareness of an issue that, while long since declared “settled” by the establishments of both parties, set the stage for today’s battles over transgenderism, surrogacy, and religious freedom.
Social conservatives are likely to have an uphill battle on the issue for the foreseeable future. In July 2024, the Republican Party adopted a dramatically shortened national platform with various changes sought by returned President Donald Trump, who supports same-sex “marriage” and whose “MAGA” movement is to the left of traditional conservatism on homosexuality.
Among those platform changes was removing language declaring that “Traditional marriage and family, based on marriage between one man and one woman, is the foundation for a free society,” and language that called for that understanding to be reflected in law, including with the “reversal” of Obergefell.
