Texas Supreme Court justices appear for an official photo in 2025 (Texas Courts).
Texas judges will not be punished for refusing to perform same-sex weddings, according to a new comment from the Texas Supreme Court.
The Texas high court”s Oct. 24 comment added to the state’s judicial conduct code read: “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.” The order, which was effective immediately, was signed by all eight justices serving at the time.
The guidance to which the filing makes reference is Canon 4 of the Texas Code of Judicial Conduct, which, among many things, bars judges from acting outside their judicial role in a way that would “cast reasonable doubt” on their ability to act impartially or “interfere with the proper performance of judicial duties.”
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The updated guidance comes in the wake of the U.S. 5th Circuit Court of Appeals asking the state’s high court about its judicial code — following a lawsuit challenging the sanction of a Waco judge. This judge refused to marry gay couples while continuing to marry straight ones, per reporting from the Texas Tribune.
The sanction has since been removed, but the lawsuit was filed by another Texas judge who worried he could face a similar punishment.
The comment from the Texas high court comes at a significant moment. On Nov. 7, the United States Supreme Court is scheduled to hold a private conference to consider a challenge to same-sex marriage. The challenge is from Kim Davis, a former county clerk from Kentucky known for refusing to grant marriage licenses to same-sex couples in the wake of the 2015 ruling Obergefell v. Hodges, which legalized same-sex marriage nationwide.
When this landmark decision was pronounced, judges and justices of the peace in Texas, who are allowed but not required to officiate weddings, had to make a choice: officiate both gay and straight marriages, or neither, according to the Texas Tribune. Now, apparently, they can pick and choose how to act on this matter as they wish.
The new guidance in Texas’ judicial conduct code elicited different reactions from advocacy organizations and leaders. A senior staff attorney at the ACLU of Texas suggested such an order allows for bias and discrimination.
“Allowing judges who offer marriage services to the general public to deny certain couples the right to marry paves the way for discrimination,” Brian Klosterboer told Austin-based CBS affiliate KEYE. “Judges should remain neutral and unbiased when performing any public service, but this rule change holds weddings to a different standard and allows public officials to discriminate against us based on who we love, where we’re from, what we look like, or how we worship.”
Brad Pritchett of Equality Texas felt similarly, saying, “Our religious freedom should be something that protects us from harm. It shouldn’t be used as a sword.” He added, “So whenever we’re seeing religious freedom used in this way, that does set a really dangerous precedent.”
Others, like Mary Castle of Texas Values, celebrated the order.
“It has been pretty common that when it comes to ideas of marriage, even on life, these are things that, within, especially the Christian faith, there are strong views and strong practices,” she told the outlet. “So in this case, you know, it’s very specific about that judge having sincerely held religious beliefs about marriage being between a man and a woman, which is of the Christian faith.”
Former Texas Solicitor General Kyle Hawkins was appointed by Gov. Greg Abbott to be the newest state supreme court justice after Jeff Boyd retired. The reason only eight justices signed the “religious belief” order, instead of the nine justices who make up the full bench, is because Hawkins began serving on the high court the same day the comment was posted.
