AUSTIN – The Supreme Court of Texas has given the go-ahead for McLennan County Justice of the Peace Dianne Hensley to challenge a judicial reprimand she received for refusing to perform same-sex marriages.
An 8-1 ruling from the Court handed down on June 28 overturns lower court dismissals of Hensley’s lawsuit against Texas State Commission on Judicial Ethics, which issued a disciplinary warning to Hensley in 2019 for her refusal to perform same-sex marriages, while continuing to perform other marriages.
Supreme Court of Texas Chief Justice Nathan L. Hecht authored the Court’s opinion in this case.
“Hensley was first elected justice of the peace in McLennan County in 2014 for a four-year term and has been re-elected twice since. Upon taking office, Hensley began officiating marriage ceremonies, as justices of the peace are authorized to do, charging $100 for each. At the time, same-sex marriage was unlawful in Texas. But in June 2015, the United States Supreme Court decided Obergefell v. Hodges, holding that the U.S. Constitution ‘does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.’ Hensley believes – it is undisputed, sincerely – that officiating a same-sex marriage would be inconsistent with her religious faith. So she stopped officiating marriages altogether,” Hecht said.
“To her knowledge, so did all the judges in the county at the time. Concerned that couples would lack access to a low-cost wedding, Hensley decided to resume conducting weddings for opposite-sex couples and to refer same-sex couples to others she and her staff identified in the area as willing to perform the marriages for the same $100 fee she charged. She prepared a form for her staff to hand out, which explained that she did not perform same-sex weddings because of her religious beliefs and provided contact information for others who would. 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. Nevertheless, the Commission learned of her system from an interview she gave a newspaper and opened a preliminary investigation in May 2018.”
In challenging the initial warning issued to her in January 2019, Hensley argued that her conduct was protected by the Free Speech Clause and that the Commission’s sanction infringed on her sincerely-held religious beliefs in violation of the Texas Religious Freedom Restoration Act.
Subsequently, at an August 2019 hearing, Hensley testified that if any party who appeared in her court expressed doubt about her impartiality based on her refusal to perform same-sex marriages, she would recuse herself from that case. At around the same time, Hensley stopped officiating weddings entirely, concerned that the Commission would further sanction her.
The Commission issued a Public Warning against Hensley in November 2019, saying her conduct “cast reasonable doubt on her capacity to act impartially as a judge.”
Rather than invoke her right to appeal the warning to a Special Court of Review (SCR), Hensley instead sued the Commission and its members and officers for violating both the TRFRA and her right to freedom of speech under Article I, Section 8 of the Texas Constitution, in December 2019.
Hensley sought class-action relief to allow any justice of the peace to opt out of officiating at same-sex weddings while continuing at other weddings, in addition to a declaratory judgment that her religious rights were violated and $10,000 in financial damages.
Hensley argued that the statutory appeal process did not offer the relief she requested, and that was why she instead filed a lawsuit against the Commission.
A Travis County District Court dismissed her claims for lack of jurisdiction, finding that Hensley should have availed herself of the Commission’s statutory appeal process, and that decision was affirmed by the Court of Appeals for the Third District of Texas – leading Hensley to appeal to the state Supreme Court.
“The SCR could not have finally decided whether Hensley is entitled to the relief sought in this case or awarded the relief TRFRA provides if it is determined that her claim has merit. Nor could the SCR have mooted Hensley’s TRFRA claim. Hensley was not required to further exhaust her remedy by appeal to a court that could not afford her the relief TRFRA provides to successful claimants before suing in a court that can,” Hecht said.
Hecht was joined in his opinion by fellow state Supreme Court Justices Jeff Boyd, John P. Devine, Jimmy Blacklock, Brett Busby, Jane Bland, Rebeca Aizpuru Huddle and Evan A. Young.
Only Justice Debra H. Lehrmann dissented.
“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. Because she did not, the District Court lacked jurisdiction and appropriately dismissed this suit. I express no opinion on the merits of the judge’s TRFRA claims. 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,” Lehrmann said.
Hensley expressed gratitude for the state Supreme Court’s ruling.
“I am truly grateful to the Supreme Court for giving me the opportunity to continue to stand for religious liberty and the rule of law,” Hensley said in a statement released through the First Liberty Institute and her counsel, Jonathan Mitchell of Mitchell Law.
The case now returns to the Court of Appeals for the Third District of Texas, which will decide whether Hensley’s wedding practices fall under the auspices of the TRFRA.
Supreme Court of Texas case 22-1145
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com