Anti-gay Waco JP gets her lawsuit reinstated

Boy, the State Supreme Court sure had a banner day on Friday.

The state’s highest court ruled Friday that a Waco judge who had refused to officiate same-sex marriages had a right to sue the State Commission on Judicial Conduct for reprimanding her.

Justice Dianne Hensley had refused to officiate same-sex weddings based on her religious views, prompting the State Commission on Judicial Conduct to issue a public warning against her declaring she could not perform her role as judge impartially. Hensley then sued the commission on First Amendment grounds, eventually appealing a lower court’s decision to the Texas Supreme Court. In an 8-1 decision Friday, the court granted Hensley standing to sue but did not weigh in on whether she had indeed violated judicial codes of impartiality.

Hensley was elected Justice of the Peace in McLennan County in 2014, one year before the Supreme Court ruled that institutions could no longer refuse the right for same-sex couples to marry. When gay marriage became legal in Texas in 2015, Hensley initially refused to officiate weddings altogether. Eventually, she began offering wedding services to heterosexual couples again and said she would refer same-sex couples to other judges in the area willing to perform the service.

The State Commission on Judicial Conduct argued that Hensley’s discriminatory practices meant she could not rule on same-sex issues or defendants fairly. With the help of conservative law group America First Legal, Hensley sued the commission on grounds that the warning violated her religious freedoms, but a lower court sided against her.

The court’s opinion issued by Chief Justice Nathan Hecht argued that because officiating weddings is not one of Hensley’s required duties as justice of the peace, how she chooses to perform that duty is not necessarily a reflection of how she carries out her responsibilities on the stand. Justice Jimmy Blacklock filed a concurring opinion arguing that the lower court should have never ruled against Hensley in the first place, since no same-sex couple had complained about her separate-but-equal practices.

See here for the previous update. As noted, the Court’s opinion did not address the merits of Hensley’s claim, just that she had the standing to pursue it in court at this time. The lone dissenter was again Justice Debra Lehrmann, and while her dissent was on technical legal grounds, it’s worth quoting from so you can understand a little better the question the Court actually decided.

In sum, the judge could and should have engaged in the procedure provided by the Government Code for obtaining judicial review of the
public warning, as nothing precluded her from bringing affirmative claims under TRFRA and the UDJA after exhausting that procedure. See CPS Energy, 671 S.W.3d at 620. Because she did not, the district court lacked jurisdiction and appropriately dismissed this suit.
Chaparral Energy, 546 S.W.3d at 138 (“When an agency has exclusive jurisdiction, courts lack jurisdiction until the party has exhausted all
administrative remedies before the agency.”).

I express no opinion on the merits of the judge’s TRFRA claims.4 I would hold only that she failed to exhaust her administrative remedies
before filing this suit, thereby depriving the district court of jurisdiction. Because the Court holds that exhaustion was not required, I respectfully dissent.

Basically, the lower courts said that since Hensley had an administrative remedy available to her, she needed to go through that first before she could sue. SCOTx said nah, she can sue now, Justice Lehrmann disagreed. Now the appeals court will hear the case and address the merits claim. That will be fun. KERA has more.

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