Texas Judge Files Suit to Prevent Discipline of Judges Who Decline to Officiate Same-Sex Ceremonies

Photo Credit: Keith Umphress County Judge Facebook page

JACK COUNTY, Texas — A county judge in Texas has filed suit in seeking protection for judges like himself who decline to officiate same-sex ceremonies and who believe that God created marriage to be between a man and a woman.

“Judge Umphress is suffering injury in fact because he must risk disciplinary action if he persists in his refusal to officiate at same-sex marriage ceremonies,” the legal challenge, filed on behalf of Jack County Judge Brian Keith Umphress, reads.

“Judge Umphress is also risking disciplinary action by joining and supporting a church that opposes same-sex marriage and homosexual conduct,” it contends, “and he will risk disciplinary action if he announces his opposition to Obergefell and same-sex marriage when he seeks reelection in 2022.”

The lawsuit points to the case of McLennan County Judge Dianne Hensley, who was disciplined by the Texas Commission on Judicial Conduct last November.

The Commission’s warning, one of the highest disciplinary measures to be taken by the judicial oversight entity, stated that Hensley “should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct.”

The cited code states, “A judge shall conduct all of the judge’s extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.”

In coming to its conclusion, the Commission generally pointed a 2017 article by the Waco Tribune entitled “No Courthouse Weddings in Waco for Same-Sex Couples 2 Years After Supreme Court Ruling.”

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“She said that as a ‘Bible-believing’ Christian, her conscience … prohibits her from doing same-sex weddings, and she thinks she is entitled to a ‘religious exemption,’” the article outlined. “She said that on a couple of occasions, her office has told same-sex couples that the judge was not available and gave them a list of locals who would officiate a same-sex wedding …”

The Commission likewise noted that as of August 2016, Hensley’s office gave those who desired same-sex services a document that read, “I’m sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings.”

Hensley

The document named other entities who would be able to assist in her place, including another judge, a pro-homosexual “church” and a Unitarian facility.

Last summer, the Commission advised Hensley that it was concerned about her statements and practice. She supplied a written response and also appeared before the Commission in August with an attorney.

“At her appearance before the Commission, Judge Hensley testified that she would recuse herself from a case in which a party doubted her impartiality on the basis that she publicly refuses to perform same-sex weddings,” the warning document outlined.

The Commission therefore decided to issue a public warning against Hensley. She soon filed suit. 

As Judge Umphress is a member of Christian Missions Church in Jacksboro, which teaches that God created marriage to be between a man and a woman, and he personally declines to officiate same-sex ceremonies, he fears that the Commission will likewise conclude that he is in violation of the Code of Judicial Conduct.

Umphress says that he declines to participate in such ceremonies not only because of his Christian faith but because Texas law still recognizes marriage as being between the opposite sex; the legislature has never repealed the statute.

“When a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it,” the lawsuit states, quoting from a state ruling in 2017.

“[W]hile Judge Umphress acknowledges that he must subordinate state law to [the U.S. Supreme Court] when deciding cases or controversies, he will continue to follow and obey the Texas marriage laws when deciding whether to officiate at a wedding ceremony,” the legal challenge reads.

However, the complaint also argues that Umphress’ acceptance of the Scriptures on the issue of homosexuality does not mean that he — and other Christian judges — will not act with impartiality when deciding cases before them.

“Every judge in the state of Texas disapproves of at least some forms of sexual behavior. Most judges disapprove of adultery, a substantial number (though probably not a majority) disapprove of pre-marital sex, and nearly every judge disapproves of polygamy, prostitution, pederasty, and pedophilia,” it explains. “A judge who holds these beliefs — either on religious or non-religious grounds — has not compromised his impartiality toward litigants who engage in those behaviors.”

“Indeed, if opposition to same-sex marriage or homosexual behavior is to be equated with bias against homosexual litigants, then no judge could ever belong to a church that opposes same-sex marriage or teaches that homosexual conduct is immoral.”

Umphress is therefore asking the court to declare that the First Amendment protects his right to join and support a church that adheres to biblical teaching on sexuality and that he can personally state his viewpoint on the subject while seeking re-election.

He is also seeking an injunction barring the Commission from disciplining Judges because of their extra-judicial activities pertaining to the subject.

“The Commission’s current interpretation of Canon 4A(1) …  subjects Judge Umphress and every judge in Texas to discipline if they express views critical of same-sex marriage or homosexual conduct, on the ground that this somehow calls into question their ‘impartiality’ toward homosexual litigants who appear in their courtroom,” the lawsuit laments.

“The Commission’s interpretation of Canon 4A(1) violates the constitutional rights of judges, and Judge Umphress seeks declaratory and injunctive relief to that effect,” it states.

Umphress additionally argues that the code itself is vague and allows arbitrary enforcement with no due process to warn judges in advance about precisely what is verboten. The legal challenge notes that no judge has been disciplined for speaking against premarital sex, or adultery, or prostitution or polygamy, so it appears unjust to only single out those who likewise have beliefs about marriage.

“Expressing disapproval homosexual behavior may not be as fashionable as it once was. But if the Commission is singling out this speech or conduct because it no longer accords with politically correct opinion, then that is the very definition of arbitrary
and discriminatory enforcement.”

Read Umphress’ legal complaint in full here.


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