Texas Supreme Court sides with Christian judge who refuses to officiate gay weddings

Two male groom figurine cake toppers sit atop a same-sex marriage wedding cake with a rainbow flag in background.
Two male groom figurine cake toppers sit atop a same-sex marriage wedding cake with a rainbow flag in background. | Getty Images/YinYang

The Supreme Court of Texas ruled Friday in favor of Dianne Hensley, a justice of the peace in Waco reprimanded for not performing same-sex weddings, reinstating her lawsuit against the State Commission on Judicial Conduct.

The commission had previously issued a public warning for her refusal to officiate same-sex weddings, citing a violation of judicial impartiality based on sexual orientation.

In an 8-1 decision, the court found that Hensley's decision not to appeal the commission's warning to a Special Court of Review before filing a lawsuit in civil court does not prevent her from pursuing her lawsuit.

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"We hold that, apart from one declaratory request against the Commission, petitioner's suit is not barred by her decision not to appeal the Commission's Public Warning or by sovereign immunity," the majority decision, written by Chief Justice Nathan Hecht, reads. 

"Accordingly, we affirm the part of the court of appeals' judgment dismissing the one declaratory request for lack of jurisdiction, reverse the remainder of the judgment, and remand to the court of appeals to address the remaining issues on appeal." 

Hensley, represented by attorneys from Mitchell Law LLP and the First Liberty Institute, argues that her refusal to officiate same-sex weddings is protected under the Texas Religious Freedom Restoration Act and an exercise of her religious beliefs. She contends that refusing to officiate such weddings does not impede her ability to perform her judicial duties impartially.

Hensley was first elected justice of the peace in McLennan County in 2014 and has been twice reelected since. To ensure McLennan County residents can access low-cost wedding ceremonies after the U.S. Supreme Court made same-sex marriage a national right in 2015, Hensley "invested extensive time and resources to compile a referral list of alternative, local wedding officiants," according to the First Liberty Institute.

The list included at least one option within walking distance of her office, which reduced the cost to the same amount Hensley received and who could do same-sex weddings within the same timeframe. 

"No one complained to Hensley, her staff, or the Commission about her marriage-referral system or her ability to be fair — or even her appearance of fairness — in any judicial proceeding," the ruling states. "Nevertheless, the Commission learned of her system from an interview she gave a newspaper and opened a preliminary investigation in May 2018."

In January 2019, after the commission questioned her, it issued a public warning, concluding that she violated a statute that applies to conduct in the performance of judicial duties and another statute that regulates a judge's extra-judicial conduct.

Despite the warning, Hensley continued her practice and sued the commission, seeking a court order to block future sanctions.

The court's majority opinion stressed that while judges must follow the law impartially, they are not required to officiate at weddings as part of their judicial duties. The opinion further clarified that Hensley's decision to refer same-sex couples to other officiants does not necessarily imply bias or prejudice.

Justice Jimmy Blacklock, joined by Justice John Devine in a concurring opinion, argued that the commission's actions against Hensley constituted unlawful religious discrimination. They expressed that politely declining to participate in a same-sex wedding for religious reasons does not demonstrate an inability to judge impartially.

"By going out of its way to take sides in a contentious moral and political debate about conflicts between the right to same-sex marriage created by [U.S. Supreme Court's 2015] Obergefell [ruling] and the rights of religious dissenters long enshrined in our founding documents — an ongoing debate that Obergefell itself acknowledged would continue — the Commission has done far more, in the eyes of many Texans, to undermine public confidence in Texas's judicial branch than a lone justice of the peace in Waco ever could."

The First Liberty Institute hailed the decision as a victory for religious liberty.

Hiram Sasser, executive general counsel, stated that Hensley's conduct should serve as a model for public officials, balancing personal religious convictions with public duties.

"Judge Hensley's way of reconciling her religious beliefs while meeting the needs of her community is not only legal but should stand as a model for public officials across Texas," Sasser said. "This is a great victory for Judge Hensley and renews her opportunity to seek justice under the religious liberty protections of the law."

Hensley expressed gratitude for the court's decision, which allows her to continue advocating for religious liberty and the rule of law. 

The Texas Supreme Court's decision sends the case back to the lower courts to address the remaining issues on appeal.

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