The Texas Supreme Court recently ruled 8-1 to reinstate a lawsuit by a Waco-area justice of the peace who was reprimanded by a state judicial ethics commission for not officiating “same-sex weddings.” The decision allows Justice of the Peace Dianne Hensley, an elected judge serving her third term, to continue a lawsuit claiming the reprimand violated her religious freedom rights and to pursue an injunction to prevent future sanctions.

In Texas, justices of the peace are not required to officiate weddings but can do so if they choose. After the 2015 Obergefell decision where the U.S. Supreme Court held states cannot bar “same-sex marriage,” Judge Hensley decided to discontinue officiating weddings. She later resumed officiating weddings but developed a marriage-referral system to refer same-sex couples to other officiants. She asserts that refusing to officiate “same-sex weddings” does not impede her ability to perform her other judicial duties impartially, which include hearing small claims and misdemeanor cases. 

According to the ruling, “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.”

Later, the State Commission on Judicial Conduct issued Judge Hensley a “Public Warning” stating that her referral system cast doubt on her ability to act impartially in judicial proceedings due to the sexual orientation of those appearing before her. Undeterred, Judge Hensley continued her referral system and sued the Commission arguing the sanction violated her sincerely held religious beliefs, which are protected under the Texas Religious Freedom Restoration Act (TRFRA). A trial judge dismissed her case due to the court’s lack of jurisdiction because she had not appealed the Commission’s warning to a Special Court of Review (SCR). An appeals court later upheld that dismissal. 

The Texas Supreme Court’s majority and concurring opinions vindicated Judge Hensley finding that referring same-sex couples to other officiants due to religious beliefs does not ruin a judge’s impartiality.

“Judge Hensley’s actions were not unethical, unconstitutional, or illegal in any way,” stated Justices Jimmy Blacklock and John Devine in their concurring opinion. “Politely declining to participate in a same-sex wedding for religious reasons does not demonstrate bias or prejudice against gay people. Nor does it demonstrate an inability to impartially judge their lawsuits.”

The Texas High Court then put a tremendous amount of fault for the case on the Commission itself.

“Apparently after combing the newspapers for juicy targets, the Commission decided, on its own initiative, to subject Judge Hensley to a lengthy private inquisition and then to publicly humiliate her,” stated the Court. “Several years later, here we are. There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist. But it does exist.”

The Court stated the Commission had “veered” from its proper lane turning a “victimless” situation into a violation of Judge Hensley’s religious freedom.

“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 Obergefell and the rights of religious dissenters long enshrined in our founding documents…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.”

As for the lower court’s dismissal for not lodging an appeal to the SCR, the Texas High Court also ruled in favor of Judge Hensley, who is represented by attorneys from Mitchell Law LLP and First Liberty Institute. The majority noted that she was not merely seeking reversal of the warning, but injunctive relief from the infringement on her religious freedoms – something the SCR has no authority to grant nor prevent in the future. The High Court viewed an appeal to the SCR would be “a pointless waste of time and resources,” and returned the case to its proper jurisdiction in the trial court to address her claims under the TRFRA. 

“To her credit, Judge Hensley did not capitulate,” stated Justice Blacklock. “…if Judge Hensley sticks to her guns, I am confident the Commission will lose.”

Liberty Counsel’s Founder and Chairman Mat Staver said, “Judges are entitled to the same religious freedoms and protections as every other citizen. Religious beliefs do not necessarily impede the ability to be impartial.”