McLennan County Justice of the Peace Dianne Hensley is suing the Texas agency that investigates judicial misconduct after it issued her a public warning earlier this month for refusing marry same-sex couples while continuing to marry heterosexual couples.
Hensley, backed by the First Liberty Institute, filed a class-action petition in Waco’s 170th State District Court Tuesday, claiming the disciplinary action against her by the State Commission on Judicial Conduct violates her rights under the Texas Religious Freedom Restoration Act.
The lawsuit seeks $10,000 in damages, a declaratory judgment that the commission and its members violated her religious rights and class-action relief to allow any justice of the peace to recuse himself or herself from officiating at same-sex weddings.
In its warning earlier this month, the commission said Hensley has refused to perform same-sex weddings since August 2016, despite the U.S. Supreme Court’s decision a year earlier that established the constitutional right to same-sex marriage.
Performing weddings is not a statutory duty of justices of the peace or their offices. Attorney Mike Dixon, who represents McLennan County, advised magistrates who were performing weddings either to perform them all or not to perform any in the wake of the Supreme Court’s ruling.
Some other justices of the peace in the county stopped performing weddings altogether, but Hensley has continued. She declines to perform same-sex marriages, however, and refers couples to others who will perform the ceremonies.
“Because of Judge Hensley, anyone who wants to get married in McLennan County can get married,” First Liberty Institute attorney Jeremy Dys said in a press release. “For simply trying to reconcile her religious beliefs while meeting the needs of her community — ensuring anyone can get married who wants to be married — the Commission on Judicial Conduct punished her.”
Hensley’s lawsuit claims the commission, by investigating and punishing her “for acting in accordance with the commands of her Christian faith … has substantially burdened the free exercise of her religion, with no compelling justification.”
“For providing a solution to meet a need in my community while remaining faithful to my religious beliefs, I received a ‘public warning.’ No one should be punished for that,” Hensley said in the press release.
The commission said Hensley is violating the Texas Code of Judicial Conduct by “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”
The commission referred to comments Hensley made to the Tribune-Herald in 2017 in which she said her “Bible-believing” Christian conscience prohibits her from doing same-sex weddings. She also said she believes she’s entitled to a “religious exemption.”
During a press conference Tuesday, Hensley described herself as a “generic Christian” and a member of Highland Baptist Church.
“Judge Hensley also intends to continue recusing herself from officiating at same-sex weddings — her conscience demands it — despite the commission’s warning,” her lawsuit states. “She therefore seeks a declaratory judgment that her referral system complies with Texas law, and that the law of Texas prevents the commission from imposing any further discipline on justices of the peace who recuse themselves from officiating at same-sex marriage ceremonies.”
The lawsuit contends that Hensley’s referral “solution” provides a means for more couples, including same-sex couples, to marry than by the “predominant practice of many public officials,” who ceased officiating any weddings.
“Judge Hensley has officiated wedding ceremonies for 328 couples since August 2016 — and dozens more have taken advantage of the referral system instituted by Judge Hensley,” according to the suit.
After Hensley’s public warning was made public, two former members of the State Commission on Judicial Conduct said they believe Texas Gov. Greg Abbott removed them from the panel because he disagreed with them over Hensley’s case.
Abbott appointed Amy Suhl and Maricela Alvarado to the commission in June 2018 but pulled their names when it came time for the Texas Senate to confirm them nine months later. They told the Houston Chronicle that they were told the governor had simply decided to proceed in a different direction, but they said they believe he ousted them because they voted to warn Hensley for officiating over opposite-sex marriages but refusing to perform same-sex marriages.
Suhl recorded a meeting with Abbott’s staff and a later telephone call. The recordings, which were reviewed by the Chronicle, indicate Abbott aides were advising her to act with Abbott’s views in mind.
According to the Chronicle, Suhl said Abbott’s staff aimed to “change them out with the hope that maybe more people would vote the way they want. I thought it was wrong. That commission is there to serve the public, to make sure judges are operating ethically, and not to serve any one group’s interest.”
The commission consists of six judges appointed by the Texas Supreme Court, two lawyers appointed by the State Bar of Texas and five citizens appointed by the governor who are neither lawyers nor judges. The panel is an independent state agency charged to “protect the public, promote public confidence in the integrity, independence, competence, and impartiality of the judiciary, and encourage judges to maintain high standards of conduct both on and off the bench,” according to the agency website.
The Texas Constitution states that cases before the commission are to be confidential, but the Hensley case divided the commission deeply, Suhl told the Chronicle.