Court upholds decision to dismiss lawsuit filed by McLennan Co. justice of the peace sanctioned for refusing to perform same-sex weddings

WACO, Texas (KWTX) - An Austin intermediate appellate court has upheld a Travis County judge’s decision to throw out McLennan County Justice of the Peace Dianne Hensley’s lawsuit against the state panel that sanctioned her in 2019 for refusing to perform same-sex weddings.

In an opinion issued Thursday, the 3rd Court of Appeals affirmed 459th State District Judge Jan Soifer’s June 2021 decision to dismiss Hensley’s lawsuit against the State Commission on Judicial Conduct.

The appellate court judges agreed with Soifer that the commission has statutory and sovereign immunity from the claims, that Hensley failed to exhaust other legal remedies before filing her lawsuit and that she failed to establish her claims that commission members were without legal authority to issue the public reprimand against Hensley.

Hensley has said she has always expected the case will ultimately be reviewed by the Supreme Court of Texas. She referred questions about the Thursday ruling to her attorneys at the First Liberty Institute, a high-profile religious liberty legal group based in Plano.

“Judge Hensley is serving her community by ensuring that anyone who wants to get married can get married even when she’s unavailable,” said Justin Butterfield, deputy general counsel for First Liberty. “The commission is doing everything it can to avoid a court deciding whether its actions violate the Texas Religious Freedom Restoration Act. We intend to get an answer to that question.”

Douglas Lang, an attorney for the State Commission on Judicial Conduct, said Thursday his clients are “very pleased with the decision.”

Hensley, a Republican who is unopposed in Tuesday’s election in her bid for a third term, has officiated at weddings between men and women but refused to perform weddings for same-sex couples, saying it goes against her “Bible-believing Christian conscience.”

She said Thursday she has stopped performing any weddings while her lawsuit is pending. Her lawsuit alleges the commission violated her rights under the Texas Religious Freedom Restoration Act.

The commission’s public warning against Hensley said she violated 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.” It also said she has refused to perform same-sex weddings since August 2016, despite the 2015 U.S. Supreme Court decision that established constitutional rights to same-sex marriage.

Hensley’s lawsuit originally was filed in McLennan County. However, it was transferred to Travis County after a contested hearing.

Her petition asserts the commission violated her rights by punishing her for “recusing herself from officiating at same-sex weddings, in accordance with the commands of her Christian faith.” She also claimed “the commission’s investigation and punishment” of her placed a substantial burden on her free exercise of religion.

She contended in her appeal of the trial court’s ruling that the judge was wrong and the commission’s sanction was “absurd” because “disapproval of an individual’s behavior does not evince bias toward that individual as a person when they appear in court.” She charged that the commission “equated a judge’s publicly stated opposition to an individual’s behavior as casting doubt on the judge’s impartiality toward litigants who engage in that conduct.”

Under that reasoning, she alleged, “no judge who publicly opposes murder or rape could be regarded as impartial when an accused murderer or rapist appears in his court.”

Hensley has said that she, along with most all of the county’s JPs, stopped performing any weddings on the advice of county attorneys to avoid the appearance that those who chose not to perform same-sex weddings were discriminating against same-sex couples.

She resumed officiating at weddings between men and women only for a time until she was contacted by the judicial commission. She said her staff directed same-sex couples seeking to get married to other officiants.