Pre‑Enforcement Standing for Judicial‑Ethics Challenges and Certification of Canon 4A(1)’s Scope: The Fifth Circuit’s Decision in Umphress v. Hall

Introduction

In Umphress v. Hall, the United States Court of Appeals for the Fifth Circuit confronted a recurring, high‑stakes question at the intersection of judicial ethics, the First Amendment, and same‑sex marriage: may Texas judges publicly refuse to perform same‑sex weddings, while continuing to perform opposite‑sex weddings, without violating Canon 4A(1) of the Texas Code of Judicial Conduct (the impartiality canon governing extra‑judicial activities)? The case sits against the backdrop of the State Commission on Judicial Conduct’s now‑rescinded public warning to Justice of the Peace Dianne Hensley for such a policy, and a parallel state‑court challenge brought by Hensley.

Plaintiff‑Appellant Brian Keith Umphress, a Texas county judge who refuses to officiate same‑sex weddings on religious grounds but continues to perform opposite‑sex ceremonies, filed a federal suit seeking declaratory and injunctive relief against the Commission’s application of Canon 4A(1). The district court dismissed for want of subject‑matter jurisdiction, holding that Umphress lacked standing and that his claims were unripe, and indicated it would abstain under Pullman even if jurisdiction existed.

The Fifth Circuit reversed. It held that Umphress’s pre‑enforcement challenge is justiciable (standing and ripeness satisfied), rejected mootness arguments arising from the Commission’s rescission of Hensley’s warning and intervening state‑court proceedings, declined Pullman abstention in light of recent developments, and instead certified a novel, threshold state‑law question to the Supreme Court of Texas: whether Canon 4A(1) prohibits judges from publicly refusing, for moral or religious reasons, to perform same‑sex weddings while continuing to perform opposite‑sex weddings.

Summary of the Opinion

• Standing: The court held that Umphress alleged an imminent injury‑in‑fact sufficient for a pre‑enforcement challenge. He intends to engage in constitutionally protected expression and religious exercise (officiating decisions and campaign speech), that conduct is at least arguably proscribed by Canon 4A(1) as the Commission has previously enforced it against Hensley, and there is a substantial threat of enforcement because the Commission has refused to disavow future enforcement and any citizen may initiate a complaint.
• Ripeness: Constitutional and prudential ripeness were satisfied. The issues are predominantly legal, further factual development would not clarify them, and denying prompt review would impose hardship by chilling speech, expressive conduct, and religious exercise.
• Mootness: The case remained live despite (a) the Texas Supreme Court’s decision in Hensley v. State Commission on Judicial Conduct, 692 S.W.3d 184 (Tex. 2024), which did not resolve the merits, and (b) the Commission’s rescission of its warning to Hensley. The Commission has not disavowed enforcement against Umphress nor altered its policy statewide.
• Abstention vs. Certification: Although traditional Pullman factors were initially present, intervening developments made it unlikely that state‑court proceedings would resolve the key state‑law question. The court therefore declined to abstain and certified to the Supreme Court of Texas the determinative, unsettled question of Canon 4A(1)’s scope.
• Certified Question: “Does Canon 4A(1) of the Texas Code of Judicial Conduct prohibit judges from publicly refusing, for moral or religious reasons, to perform same‑sex weddings while continuing to perform opposite‑sex weddings?”
• Disposition: Judgment of dismissal reversed; question certified; panel retains jurisdiction pending the Texas Supreme Court’s response.

Analysis

Precedents Cited and Their Influence

The opinion draws on established pre‑enforcement standing doctrine, particularly:

• Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014): Supplies the modern three‑part rubric for pre‑enforcement injury‑in‑fact—(1) intent to engage in conduct arguably protected; (2) conduct arguably proscribed; and (3) a credible threat of enforcement. The Fifth Circuit tracks this framework and emphasizes that an actual enforcement action is not a prerequisite.
• Speech First, Inc. v. Fenves, 979 F.3d 319 (5th Cir. 2020): Provides Fifth Circuit gloss on the Driehaus standard, including the distinction between facial and as‑applied challenges: facial challenges may assume a credible threat in the absence of compelling contrary evidence, whereas as‑applied challenges require some evidence that the policy would be applied to the plaintiff. The court uses Speech First to classify Umphress’s claims as as‑applied and to evaluate the weight of prior enforcement against Hensley and the Commission’s refusal to disavow future enforcement.
• Clapper v. Amnesty International USA, 568 U.S. 398 (2013): Reiterates that allegations of future injury must be “certainly impending” or pose a “substantial risk”; the Fifth Circuit applies this concept through the Driehaus framework.
• MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007) and Carney v. Adams, 592 U.S. 53 (2020): Inform the timing of standing and ripeness assessments and the “case or controversy” requirement; the Fifth Circuit stresses that standing/ripeness are evaluated at filing and must persist.
• First Amendment cases undergirding the constitutional interests at stake:
  • Republican Party v. White, 536 U.S. 765 (2002) (judicial campaign speech);
  • Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. 617 (2018) (religious objections as protected views and sometimes protected expression);
  • Roman Catholic Diocese v. Cuomo, 592 U.S. 14 (2020) (Free Exercise protection);
  • Obergefell v. Hodges, 576 U.S. 644 (2015) (recognizing a constitutional right to same‑sex marriage but expressly protecting religious advocacy opposing it);
  • Williams‑Yulee v. Florida Bar, 575 U.S. 433 (2015) (state’s compelling interest in preserving public confidence in the judiciary).
  These decisions support the conclusion that Umphress’s intended conduct—religiously motivated refusal to officiate, continued officiation of opposite‑sex weddings, and campaign speech opposing same‑sex marriage—implicates protected speech and religious exercise.
• Steffel v. Thompson, 415 U.S. 452 (1974); Humanitarian Law Project, 561 U.S. 1 (2010); and Babbitt v. United Farm Workers, 442 U.S. 289 (1979): Reinforce that past enforcement against similarly situated parties and a government’s refusal to disavow enforcement create a credible threat supporting pre‑enforcement standing.
• Abstention/Certification: Railroad Commission v. Pullman Co., 312 U.S. 496 (1941) (abstention to avoid needless constitutional rulings when state‑law issues are unsettled); Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (certification as a preferable alternative to abstention to secure an authoritative state‑law answer); McKesson v. Doe, 592 U.S. 1 (2020) (importance of state‑law clarification, especially on issues laden with value judgments).

The Fifth Circuit leverages these authorities to conclude that Umphress’s pre‑enforcement challenge is concrete and immediate, not speculative, and that certification offers the most efficient and respectful path to resolving the threshold state‑law uncertainty.

Legal Reasoning

1) Standing: A textbook application of pre‑enforcement doctrine

• Intent to engage in protected conduct: Umphress intends to continue officiating opposite‑sex weddings, refuse same‑sex weddings on religious grounds, and campaign on his views—all activities implicating speech, expressive conduct, and religious exercise. These are paradigmatically protected under the First Amendment and related doctrines.
• Conduct arguably proscribed by Canon 4A(1): The Commission previously warned Hensley for substantially similar conduct—publicly refusing to perform same‑sex weddings while performing opposite‑sex weddings and explaining that refusal. That enforcement action renders it at least “arguable” that Canon 4A(1) proscribes Umphress’s intended conduct.
• Credible threat of enforcement (as‑applied posture): Because Umphress’s challenge is as‑applied, he must show some evidence that the Canon would be enforced against him. He satisfies this burden through:
  • Prior enforcement against a similarly situated judge (Hensley);
  • The Commission’s refusal to disavow enforcement against Umphress in the future;
  • The broad “universe of potential complainants,” since any citizen may file an ethics complaint, increasing the likelihood of investigation and enforcement.
  The court thus distinguishes cases lacking concrete enforcement signals and underscores that the Commission’s non‑disavowal is a powerful marker of a credible enforcement threat.
• Causation and redressability: The Commission’s asserted interpretation of Canon 4A(1) chills Umphress’s speech and religious exercise; declaratory and injunctive relief would redress the chill. Notably, the court also explains that a declaration that Obergefell does not require judges to perform same‑sex weddings—or, ultimately, the overruling of Obergefell by the Supreme Court—would remove the legal predicate for same‑sex marriages in Texas, thereby eliminating the risk of discipline on that basis. While the Fifth Circuit cannot overrule Obergefell, it can declare what Obergefell does and does not require, and the possibility of Supreme Court review suffices for redressability.

2) Ripeness: Constitutional and prudential elements satisfied

Because standing and ripeness “boil down to the same question” in pre‑enforcement settings, the factors that establish standing also establish constitutional ripeness. On prudential ripeness, the court emphasizes:

• Fitness: The issues are purely legal and will not be clarified by further factual development;
• Hardship: Denying review would force Umphress to either self‑censor his expressive/religious conduct or risk enforcement proceedings—precisely the “here and now” harm prudential ripeness aims to prevent.

3) Mootness: Rescinding Hensley’s warning and the state‑court posture do not moot Umphress

The Commission’s rescission of its warning to Hensley did not extinguish the controversy. The Commission has not disavowed enforcement against Umphress nor adopted a statewide policy change; therefore, a meaningful risk remains, and judicial relief would still affect the parties’ rights in a concrete way. Similarly, the Texas Supreme Court’s decision in Hensley did not resolve the merits; it remanded for consideration on the merits, leaving untouched the threat of enforcement against Umphress. The case thus remains live.

4) Abstention vs. Certification: Comity’s modern channel

While Pullman abstention was arguably available at the outset because an unsettled, determinative state‑law question could obviate federal constitutional adjudication, intervening events made it unlikely that the state courts would squarely resolve the merits in Hensley’s case (the Commission’s mootness position and the possibility of renouncing its earlier interpretation). Against this backdrop, certification under Texas Rule of Appellate Procedure 58 became the streamlined vehicle to obtain an authoritative answer to a novel state‑law question that implicates Texas’s core interest in judicial impartiality and the contours of extra‑judicial activity.

The court applied its typical certification considerations—novelty/importance of the question, comity, and practical feasibility—and found them decisively in favor of certification. The certified question is narrow, concrete, and pivotal to the federal case’s trajectory.

Impact and Implications

• Pre‑enforcement challenges by judges and regulated professionals: The decision solidifies that plaintiffs can secure Article III standing to challenge professional‑ethics rules before enforcement where there is prior analogous enforcement and the regulator refuses to disclaim future enforcement. Agencies’ choices about disavowal and policy clarity will materially affect justiciability.
• Judicial conduct and the First Amendment: The certified question will likely shape how Texas defines “impartiality” in extra‑judicial activity when the activity involves religiously motivated distinctions. A ruling that Canon 4A(1) prohibits the refusal would trigger a robust First Amendment and Free Exercise analysis in federal court; a ruling that it does not would reduce or eliminate the need to reach federal constitutional questions.
• Voluntary cessation and mootness strategies: The court’s approach underscores that rescinding an enforcement action against another party, without a disavowal of enforcement or a statewide policy change, will rarely moot a pre‑enforcement suit by a similarly situated plaintiff.
• Certification over Pullman abstention: The Fifth Circuit’s preference for certification in this context signals to litigants that, where a discrete and determinative state‑law question exists, certification will often be favored over abstention to avoid delay and assure an authoritative answer.
• Political speech by judicial candidates: By recognizing the protected status of Umphress’s campaign speech opposing same‑sex marriage (citing Republican Party v. White), the court reinforces that judicial‑ethics enforcement must be carefully calibrated to avoid unconstitutional restrictions on judicial candidates’ expression.

Complex Concepts Simplified

• Pre‑enforcement challenge: A lawsuit filed before the government has taken action against the plaintiff. It is allowed when the plaintiff intends to engage in protected conduct arguably covered by a law or policy and faces a credible threat of enforcement.
• Injury in fact (Article III): A concrete and imminent harm. In pre‑enforcement First Amendment cases, “chilling” one’s speech or conduct due to a credible threat of enforcement qualifies.
• As‑applied vs. facial challenge: An as‑applied challenge targets how a rule is applied to a specific plaintiff’s conduct; a facial challenge seeks to invalidate the rule in all or most applications. As‑applied challenges usually require some evidence that the government would apply the rule to the plaintiff.
• Ripeness: Ensures courts decide disputes at the right time. If the issues are legal and further facts won’t help, and if delay would cause hardship (e.g., chilling speech), the case is ripe.
• Mootness: A case is moot if subsequent events make it impossible for the court to grant effective relief. Rescinding a past enforcement action without disavowing future enforcement usually does not moot a case.
• Pullman abstention: A doctrine counseling federal courts to wait on federal constitutional questions when an uncertain state‑law issue could resolve the case. It is discretionary and often supplanted by certification where available.
• Certification (Texas Rule of Appellate Procedure 58): A federal court’s request that the Supreme Court of Texas answer a novel, determinative question of Texas law. The federal court retains the case and applies the state court’s answer.
• Canon 4A(1) (Texas Code of Judicial Conduct): Requires judges to conduct extra‑judicial activities in a manner that does not call their impartiality into question. “Extra‑judicial” includes activities like officiating weddings—a legal authority Texas confers on judges but not part of adjudication.

Looking Ahead: Possible Paths After Certification

• If the Texas Supreme Court answers “Yes” (the Canon prohibits the refusal):
  • The Fifth Circuit will confront the federal constitutional claims on a concrete state‑law footing: whether applying Canon 4A(1) in this way violates the First Amendment (speech and association), is unconstitutionally vague as applied, or violates the Free Exercise Clause (especially after recent Supreme Court decisions tightening scrutiny of religion‑based burdens).
  • The Commission may need to articulate clear, neutral, and generally applicable standards—and potentially consider accommodation structures—to withstand constitutional scrutiny.
• If the Texas Supreme Court answers “No” (the Canon does not prohibit the refusal):
  • The central federal controversy may largely dissipate; the threat of enforcement premised on Canon 4A(1) would be minimized or eliminated, likely narrowing or mooting key federal claims.
  • Broader constitutional issues may become unnecessary to decide, narrowing the federal court’s role and reflecting classic federalism values.

Conclusion

Umphress v. Hall sets an important Fifth Circuit benchmark on justiciability in pre‑enforcement challenges to judicial‑ethics rules. The court confirms that judges voicing religious and political views—particularly on same‑sex marriage—and aligning their extra‑judicial activities accordingly can access federal courts before discipline occurs, when prior analogous enforcement and non‑disavowal create a credible threat. At the same time, the court respects state prerogatives by certifying a pivotal, novel question about Canon 4A(1)’s scope to the Supreme Court of Texas, rather than abstaining and delaying resolution.

The certified question is consequential: its answer will define, as a matter of Texas judicial ethics, whether publicly refusing to officiate same‑sex marriages while continuing opposite‑sex ceremonies “calls into question” a judge’s impartiality. That answer will in turn frame the federal constitutional analysis to follow, if any. In charting this course—reversing the jurisdictional dismissal, resisting mootness through rescission, and preferring certification over Pullman abstention—the Fifth Circuit both advances First Amendment access to judicial review and promotes comity by seeking an authoritative state‑law resolution. The decision will influence how judicial conduct commissions, judges, and litigants navigate the delicate boundary between judicial impartiality and protected expression in Texas and, by analogy, beyond.