The Texas Supreme Court has ruled that a Waco judge has the right to sue the State Commission on Judicial Conduct for issuing her a public reprimand for refusing to marry same-sex couples.
However, the court was silent on whether McLennan County Justice of the Peace Dianne Hensley is immune from punishment under the Texas Religious Freedom Restoration Act.
Hiram Sasser, an attorney with the conservative religious freedom nonprofit First Liberty Institute who represented Hensley, praised the opinion in a press release Friday.
“Judge Hensley’s way of balancing her religious beliefs with the needs of her community is not only legal, but should serve as a model for public officials across Texas,” Sasser said. “This is a major victory for Judge Hensley and gives her another opportunity to seek justice under the legal protections of religious freedom.”
Attorneys for the State Commission on Judicial Conduct did not immediately respond to a request for comment.
Following the groundbreaking US Supreme Court case in 2015 Obergefell vs Hodges While judges and justices of the peace were required to perform either gay and heterosexual marriages or none at all, Hensley chose the latter. She said her faith as a Christian would not allow her to do so.
However, Hensley became concerned about having to turn away heterosexual couples who wanted to get married, and in 2016 she resumed conducting ceremonies for heterosexual couples only, while referring gay couples to other celebrants. She told the Waco Tribune-Herald this decision the following year, which triggered an investigation by the State Commission on Judicial Conduct in 2018.
The commission issued a public reprimand to Hensley in 2019, saying its decision raised questions about her ability to act impartially as a judge. A lawyer who argued for the state commission at oral arguments last year said the problem was with her conduct, not her beliefs.
Rather than appeal the warning in an internal proceeding, Hensley filed suit under the Texas Religious Freedom Restoration Act, which prohibits the government from imposing restrictions that substantially impair a person’s religious freedom.
Both a district court and an appellate court dismissed Hensley’s lawsuit because she had not exhausted her internal appeals options. The courts granted immunity to the commission and ruled that the state agency was protected from liability.
The Texas Supreme Court ruled that Hensley was allowed to sue under Texas RFRA without first appealing internally. The Supreme Court also ruled that the commission’s sovereign immunity claims did not apply.
In a concurring opinion, Justice Jimmy Blacklock wrote that the court should have immediately ruled in favor of Hensley’s claim that punishing gay couples for not marrying violated their religious freedom.
Dale Carpenter, a constitutional law professor at Southern Methodist University, told KERA in October that it would be “unprecedented and aggressive” to make such a decision.
“Much more evidence should be gathered on these kinds of questions before they make that decision,” he said.
It is now up to a lower appeals court to address the religious freedom claims.
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