AUSTIN, Texas (CN) — Religious freedom, LGBTQ rights and judicial bias concerns collided on Wednesday in a Texas Supreme Court hearing over a jurist who was sanctioned for her marriage-officiating practices.
Dianne Hensley, a justice of the peace who presides over a small claims court in Waco is resolute in her belief that marriage should only be between one man and one woman, so much so that after the U.S. Supreme Court struck down state laws barring gay marriage in its 2015 Obergefell v. Hodges decision, Hensley stopped performing weddings altogether.
She was not alone. After that landmark ruling all justices of the peace and judges in Waco, a city whose largest employer is Baylor University, a private Baptist institution, gave up doing weddings.
Hensley’s office is in the McLennan County Courthouse, right across from the clerk’s office that issues marriage licenses.
She said in the year following Obergefell her staff received many phone calls and visits from couples looking for someone to marry them, and some left in tears because they did not want a church wedding and could not find anyone to officiate.
Wanting to fill the void and missing the extra spending money — she charges $100 per wedding — she came up with what she thought was a reasonable compromise.
She restarted officiating weddings for heterosexual couples in August 2016 and began having her staff give same-sex couples wishing to be married by her a document stating: “I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings." It also included a list of local judges and ministers who would officiate such weddings.
The Texas Commission on Judicial Conduct took notice when the Waco Tribune-Herald published an article in June 2017 stating Hensley “would only do a wedding between a man and a woman.”
Made up of 13 unpaid members, including six judges appointed by the Texas Supreme Court, two attorneys appointed by the State Bar of Texas, and five lay people, the commission is authorized by the state Constitution to discipline jurists via censures, suspensions, or recommendations that they be removed from the bench.
In November 2019, the commission slapped Hensley with a public warning finding her wedding-officiating practices and statements about them to the media had violated a canon of the Texas Code of Judicial Conduct, which states in part, "A judge shall conduct all of the judge's extra-judicial activities so that they do not cast reasonable doubt on the judge's capacity to act impartially as a judge.”
Before sanctioning her, the commission had summoned Hensley to a hearing where she and three of her attorneys unsuccessfully argued that her “recusal-and-referral system” was protected by the Texas Religious Freedom and Restoration Act.
Hensley sued the commission and its members in December 2019 claiming they had violated the statute by burdening her free exercise of religion.
But the trial court dismissed the case on procedural grounds. It determined her only remedy was to appeal her public warning to a special court of review that hears jurists’ appeals of the commission’s sanctions.
The trial court also held that the commissioners had sovereign immunity against Hensley’s claims.
She appealed to the Third Texas Court of Appeals in Austin, which affirmed the dismissal, leading her to ask the Texas Supreme Court to review the case. The high court agreed and heard arguments Wednesday.
Hensley is represented by the First Liberty Institute, a Christian legal group based in Plano, Texas, and Jonathan Mitchell.
A former Texas solicitor general now in private practice, Mitchell is lauded by conservatives as the architect of Senate Bill 8, the Texas Heartbeat Act, which banned abortions after six weeks of pregnancy.
Arguing for Hensley on Wednesday, Mitchell focused on the threshold issues.
He said the lower courts had erred in holding Hensley could not pursue her Texas Religious Freedom and Restoration Act claim in the state judiciary because she did not appeal to the special court of review. He also argued her claims against the commissioners should proceed, as the statute contains an explicit waiver of sovereign immunity.
Mitchell explained that Hensley did not appeal to the special review court since it can only review the sanction the commission imposed, it has no power to award money damages under the Act.
Hensley is also seeking an injunction to stop the commission from further sanctioning her for refusing to officiate same-sex marriages and monetary damages for her lost income from ceasing performing weddings, which she did after the commission reprimanded her — relief the special court could not provide, according to Mitchell.
The all-Republican Texas Supreme Court’s justices delved into the merits.
Justice Jane Bland noted that Texas judges are required to uphold the Constitution and state laws, no matter their personal views.
Mitchell agreed. “We’re not in any way suggesting or asserting in this case that Texas RFRA allows a judge to disregard the law, just because the law conflicts with their religious beliefs,” he stated.
But he pointed out that under the Texas Family Code, wedding officials are banned from discriminating on account of race, national origin or religion. Notably absent, he said, is “any mention of discrimination on account of sex or sexual discrimination.”
Mitchell reasoned that wedding officiants, whether judges or clergy, can discriminate based on any characteristic not named in the code.
Representing the commission and its members, Douglas Lang, of the Dallas firm Thompson and Coburn, proclaimed Hensley had violated her sacred judicial duty of impartiality.
“She has chosen to marry some folks and not others,” Lang stated. “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.”
Chief Justice Nathan Hecht observed that the U.S. Supreme Court’s 2002 ruling in Republican Party of Minnesota v. White found that judicial candidates, even incumbents, have a First Amendment right to express their views on disputed legal and political topics.
Hecht questioned if Hensley had just said, “I’m against gay marriage,” would she have violated a judicial canon?
“But if she says ‘I’m not going to do gay marriages’ that’s the problem? I’m trying to understand,” he told Lang.
Lang said Hensley’s statements were different because she was not talking about hot-button issues.
“What she did was she said, ‘I’m not speaking about issues. I’m talking about what I do, and what I will do, and I will discriminate against certain people who are citizens of this state. And I will do things for other people instead of them.’ That discrimination is critical,” Lang asserted.
The justices did not say when they would rule on the appeal.
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