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Judge Who Won’t Oversee Same-Sex Weddings Wants Suit Revived

July 6, 2021, 10:00 AM

A Jack County, Texas, judge who declines to marry same-sex couples due to his Christian beliefs has standing to challenge a state commission’s interpretation of a judicial canon in a way that chills his religious rights, his lawyers will tell the Fifth Circuit Tuesday.

Judge Brian Keith Umphress says he faces potential future discipline based on the commission’s view that refusing to officiate same-sex marriages violates Canon 4A(1) of the Texas Code of Judicial Conduct because it casts doubt on a judge’s ability to treat LGBT litigants impartially.

The enforcement threat is “real” in light of a warning the state Commission on Judicial Conduct issued to a Texas justice of the peace who similarly refuses on religious grounds to preside over same-sex weddings, Umphress said in a brief filed with the U.S. Court of Appeals for the Fifth Circuit in advance of Tuesday’s oral argument.

The U.S. District Court for the Northern District of Texas mistakenly ruled in November 2020 that he lacked standing to sue because he failed to allege a present threat of enforcement action directed at him, Umphress said.

The district court was also wrong that he needed to show he self-censored or changed his behavior in response to the “public warning” the commission issued to Judge Diane Hensley in McClennan County for politely referring same-sex couples wishing to be married to nearby wedding officiants, he said.

Umphress is a member of Christian Missions Church in Jacksboro, Texas, and adheres to a version of Christian teaching that believes marriage only exists between one man and one woman and that same-sex sexual conduct “is immoral,” according to the brief.

He said he plans to seek re-election in 2022 and will run “as an opponent of same-sex marriage and the living constitution mindset that produced Obergefell v. Hodges"—the 2015 U.S. Supreme Court ruling that recognized a fundamental right of same-sex couples to marry.

Umphress therefore intends to engage in a course of conduct that the commission has already deemed violative of judicial ethics and that is “arguably affected with a constitutional interest,” the brief said.

That’s enough to confer standing on him to pursue the declaratory relief he seeks against the commission, Umphress said.

But the alleged chilling of religious rights Umphress claims is wholly subjective and standing to sue under the U.S. Constitution can’t be based on speculation, the commission will tell the Fifth Circuit.

The commission said Umphress misstates and oversimplifies the sanction against Hensley, according to the brief it filed together with commission executives and members Umphress also sued.

Hensley was sanctioned because she also made concerning statements in an interview with a Waco newspaper and used state-employed court personnel to interface with same-sex couples, the commission said. She also acknowledged that she’s exposed herself to future recusal motions based on her public comments, it said.

That’s different than the prospective conduct Umphress says exposes him to future discipline, the commission said.

Umphress can’t rely on injuries allegedly suffered by others to establish standing to sue, it said.

His lawsuit isn’t really about same-sex marriage or his refusal to preside over same-sex wedding ceremonies, the commission said. Rather, it’s about Obergefell, Umphress’ belief that case was wrongly decided, and his “wishes to be the litigant who persuades the Supreme Court to overrule” it, the commission said.

Moreover, Hensley’s separate state court lawsuit against the commission was dismissed June 24, the commission said in a supplemental filing.

Jonathan F. Mitchell of Austin and The Fillmore Law Firm LLP represent Umphress. Dorsey & Whitney LLP; Schleicher Law Firm PLLC; Harris, Finley & Bogle PC; and Littler Mendelson PC represent the executives and members of the commission.

The case is Umphress v. Hall, 5th Cir., No. 20-11216, oral argument 7/6/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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