Texas Supreme Court justices Wednesday questioned whether a Waco justice of the peace should remain under threat of a judicial oversight body’s sanctions if she continues refusing to marry gay couples.
The State Commission on Judicial Conduct gave Judge Dianne Hensley a public warning in 2019 for performing opposite-sex weddings for couples, but declining to perform same-sex wedding ceremonies on religious grounds — a move that casted doubt on her capacity to act impartially, according to the notice. Her refusal occurred in the wake of a landmark U.S. Supreme Court ruling that required all states to license same-sex marriages.
Hensley serves as a justice of the peace in McLennan County, an elected official whose role includes hearing traffic and misdemeanor cases; presiding over landlord and tenant disputes; and, among other duties, can include conducting weddings.
Following the 2019 warning, Hensley filed a lawsuit alleging that the judicial commission violated her rights under the Texas Religious Freedom Restoration Act. The 1999 act was designed to ensure the government cannot “substantially burden” free exercise of religious beliefs.
The state’s highest civil court heard oral arguments Wednesday after an appeals court affirmed a lower court’s decision to toss her legal challenge last year on grounds that the commission acted within its powers and is protected from lawsuits due to sovereign immunity.
The case is believed to be among several that will attempt to expand the reach of a U.S. Supreme Court ruling that let a Colorado web designer refuse same-sex couples. However, most of Wednesday’s proceedings revolved around what Hensley had already done and what could happen to her in the future.
Justices asked why Hensley had not appealed the warning instead of suing the agency.
Hensley’s lawyer Jonathan Mitchell told justices that she would not have received the recourse she sought — including money and injunction against future sanction.
The commission’s lawyer, Douglas S. Lang, argued to justices that they should not grant a license to discriminate.
One justice asked Lang what the difference was between Hensley’s case and instances of a judge stating their stance on an issue while campaigning for their seat. Lang said it was not an issue that Hensley had talked about, but her actions — which is what was sanctioned.
Justices also asked Lang about the difference between judges who refuse to marry same-sex couples and judges who do not perform any marriages to avoid the matter altogether — and what that portends for their impartiality. Justices of the peace can but are not required to conduct weddings.
“She has chosen to marry some folks and not others. She has chosen to discriminate between some folks in the state of Texas, in favor of other people — and it flies in the face of impartiality,” Lang said.
Justice Jimmy Blacklock followed up with a hypothetical about a judge who stops doing marriages because of an objection to same-sex marriage — why wouldn’t that judge manifest the same bias, he asked.
Lang responded that a judge does not have to say why they do not want to conduct marriages.
Blacklock asked if the hypothetical judge would go before the conduct commission if they explained their reasoning for stopping to be similar to Hensley’s.
Lang returned to Hensley and her conduct, not her belief: She reached out to a Waco newspaper and wearing a judge’s mantel told a reporter that she would not marry a same-sex couple because of her religion, he said, citing the actions that were outlined in the 2019 warning. She also got her court clerks to give an assumed gay couple a handout that said the judge could not perform same-sex weddings due to sincerely held Christian beliefs.
The handout also included alternatives for where the couple could go. Blacklock asked if that was conduct that undermined her impartiality. Repeatedly, Lang turned to Hensley’s actions being at issue.
See here for the previous update. I don’t know what SCOTx will do – I fear they’ll rule for the plaintiff, but I think there’s a decent chance they may find some technical reason to rule against her – but I will say that I like the way Attorney Lang argued for the State Commission. This was about her actions, not her beliefs, and that’s what the court should focus on. They may choose not to, and that would be bad if they do, but at least it’s been made clear to them what the real issue is. All we can do now is hope for the best. And work to elect better politicians at all levels of government.