In Part One of this two-part series, we introduced the federal lawsuit filed by Brian Umphress, a county judge in Texas, concerning his (ostensibly religiously based) practice of officiating opposite-sex, but not same-sex, marriages in the state. Worried that this practice will subject him to discipline by the Texas State Commission on Judicial Conduct, Umphress is asking the federal courts to declare that Texas law does not, and cannot (consistent with his religious freedom rights under the First and Fourteenth Amendments), punish him for his discrimination. He also argues in his federal lawsuit that the 2015 Supreme Court opinion in Obergefell v. Hodges, recognizing a Fourteenth Amendment right to marriage equality for same-sex couples, does not apply to his situation, and also that Obergefell is wrongly decided. Because of open questions about the meaning of Texas law that could bear on the federal claims Umphress raises, the United States Court of Appeals for the Fifth Circuit essentially put on hold the lower federal-court proceedings and certified the following question to the Texas Supreme Court: “Does Canon 4A(1) of the Texas Code of Judicial Conduct [which Umphress fears will be applied to him and which states that a judge shall conduct all of his extra-judicial activities so that they do not cast reasonable doubt on his capacity to act impartially as a judge] prohibit judges from publicly refusing, for moral or religious reasons, to perform same-sex weddings while continuing to perform opposite-sex weddings?”
If the Texas Supreme Court answers this question in the negative, Umphress’s fear of having Canon 4A(1) applied against him should dissolve and his current federal lawsuit would be dismissed for lack of a real injury-in-fact sufficient to create standing. But that might not mean he would be in the legal clear. We think, for example, that an Ex Parte Young action against him, alleging that his discriminatory practice violates the federal Constitution and seeking an injunction preventing him from performing any weddings in the state until he officiates marriages without regard to the sexual identity of the individuals seeking to be married, still very well might lie, even if the current federal lawsuit he filed were to go away. And if the Texas Supreme Court finds that his conduct to date does indeed run afoul of Canon 4(A)(1), then his litigation in the Fifth Circuit would continue, with that court likely remanding the case back to the district court to address the merits of Umphress’s federal claims in the first instance. In either event, we think the merits of Umphress’s claims are important and interesting, and so in the space below we offer some thoughts, admittedly preliminary, on his substantive arguments.
For starters, we think it would be important for courts to consider whether, when performing a marriage ceremony in Texas, judges are “state actors” who are bound by federal constitutional constraints. In other words, when, as here, the state has delegated the legal authority to individuals to take actions which determine the public rights of third parties, are the individuals so vested required to comply with constitutional provisions and limitations? As we noted in Part One, under Texas law, current and former state and federal judges are the only non-clergy persons delegated the power to marry couples in the state. This means that if a couple wants to marry in Texas, and doesn’t want or can’t find a religious officer to preside, having a current or former state or federal judge officiate is the only option.
In light of this decision by Texas to narrowly circumscribe the class of persons permitted to perform marriage ceremonies, and putting aside for the moment any free exercise exemptions enjoyed by officiants, we think any current or former judges (and perhaps even religious officials) who perform such ceremonies do so on behalf of, and as an actor of, the state. (On a related point, we noted in Part One that state law on its face authorized but did not require clergy and judges to perform marriage ceremonies, but we believe that once a state chooses to have and recognize the institution of marriage within its jurisdiction—with consequent legal and financial ramifications—the state is then required to offer some state actor who is willing and available to solemnize marriages, lest the substantive due process right to marry become meaningless. And since many couples would not want, and could not be forced, to make use of clergy, we think that as a practical matter, judges in the state must be open to performing all legal marriages.)
A conclusion that marriage officiants in Texas were not state actors would allow government to easily avoid constitutional mandates governing the exercise of state authority, by delegating decisions determining the exercise of rights to private individuals or institutions. We certainly do not allow this evasive tactic in other constitutional settings; for example, we would not allow the government to delegate to a private organization the authority to determine which speakers might obtain access to a public park for expressive purposes in such a way as to circumvent prohibitions against content- and viewpoint-discrimination.
Yet even if Umphress is indeed a state actor for these purposes, that conclusion standing alone doesn’t resolve the question whether his discriminatory practice runs afoul of the Fourteenth Amendment. But we think that once the Supreme Court decided Obergefell in 2015, discrimination by state actors against same-sex couples wishing to be married violates the Fourteenth Amendment. Indeed, that, we think, is the core meaning of Obergefell.
One might argue in response that the right of same-sex couples to marry is not constitutionally abridged so long as there are an adequate number of judges in Texas who are willing to officiate for same-sex couples, even if other judges refuse to do so. One problem with this argument is factual; determining the availability of judges to marry same-sex couples in a particular locality at a particular moment in Texas might be challenging, and yet the argument turns on the real-world ability of same-sex couples to obtain efficient, geographically practicable, and timely marriage certifications. But our big objection to this counter-argument relates to law rather than fact. Go back to the delegation of control over who gets to speak in public parks described above. We think free speech rights would be abridged by viewpoint discrimination even if alternative avenues of communication were always available so that everyone who sought (but was denied for viewpoint-based reasons) a permit to speak in a particular park was able to obtain one somewhere else not too far away at the desired time. When content-neutral speech regulations are at issue, ample alternative avenues of expression might solve what would otherwise be a constitutional problem, but we do not think the same is true for viewpoint-based decisions by state actors, decisions that trigger strict scrutiny.
Another analogy, drawn from equal protection rather than free speech, is even more powerful and more relevant. No one contends today that racial discrimination in public facilities is permissible as long as there are sufficient facilities to accommodate people of all races. A racially segregated “whites only” public water fountain is flatly unconstitutional even if it is located adjacent to a “colored only” fountain and a “race neutral” water fountain. “Separate but equal” does not fly. And Loving v. Virginia made it clear that refusing marriages to people of different races is unconstitutional. Period. If Judge Umphress refused to marry interracial but not same-race couples, we would think his claim to be free to do so would be rejected even if he was one of the very few judges in the state to have such a discriminatory practice.
Obergefell, of course, is based not just on equal protection but also on the due process right to marry. But so was Loving, although we acknowledge that Loving spent much more ink on equality than liberty and the converse was true in Obergefell. Yet we think Obergefell is plausibly read, and indeed is perhaps best read (and this is why Obergefell does not seem to be at risk post-Dobbs), as a case in which equal protection does important work in justifying and explaining the result. After all, most commentators refer to the case primarily as a landmark in marriage equality.
All of which brings us to the free exercise claims that Umphress advances. We think there is a very high likelihood that the current Court would uphold the decisions by clergy or religious organizations to discriminate against same-sex couples in the exercise of state-delegated authority to perform marriages. (In this regard, we note, as we did in Part One, that in 2015, Texas explicitly permits clergy to follow their religious convictions in refusing to solemnize particular unions.) The current Court’s commitment to an expansive understanding of the scope of the so-called “ministerial exception” in religion-clause doctrine points in that direction. Moreover, while the 2021 decision in Fulton v. Philadelphia (invalidating application of a non-discrimination law to a Catholic organization that partnered with local government to facilitate foster-child placements) was premised on (in our view largely unsubstantiated) concerns that Philadelphia singled out religious institutions when it applied its anti-discrimination laws, the Court more generally did not seem particularly worried that religious organizations delegated state authority to determine who should be eligible to be a foster parent were exercising that authority to discriminate against same-sex couples.
To be clear, we do not think Fulton was correctly decided, but neither do we think it necessarily controls in the present situation. A judge like Umphress is not a clergyman, nor is his judicial role affiliated with religious organizations like Catholic Social Services (the organization involved in Fulton). His professional identity and role are intrinsically secular in nature. Even as judges and clergy exercise the very same delegated authority to perform marriages in Texas, they do so from drastically different positions. While the current Court has been extremely felicitous of free-exercise claims of late, it remains to be seen whether free-exercise exemptions for judges, whose role as judges is the basis for their being delegated the authority to marry couples, would allow them to refuse to marry same-sex couples, or interracial couples for that matter, if they asserted a religious basis for their refusal. We certainly hope not.
