Hensley serves as a justice of the peace in McLennan County, an elected official whose role includes hearing traffic and misdemeanor cases; presiding over landlord and tenant disputes; and, among other duties, can include conducting weddings.
Following the 2019 warning, Hensley filed a lawsuit alleging that the judicial commission violated her rights under the Texas Religious Freedom Restoration Act. The 1999 act was designed to ensure the government cannot “substantially burden” free exercise of religious beliefs.
The state’s highest civil court heard oral arguments Wednesday after an appeals court affirmed a lower court’s decision to toss her legal challenge last year on grounds that the commission acted within its powers and is protected from lawsuits due to sovereign immunity.
The case is believed to be among several that will attempt to expand the reach of a U.S. Supreme Court ruling that let a Colorado web designer refuse same-sex couples. However, most of Wednesday’s proceedings revolved around what Hensley had already done and what could happen to her in the future.
Justices asked why Hensley had not appealed the warning instead of suing the agency.
Hensley’s lawyer Jonathan Mitchell told justices that she would not have received the recourse she sought — including money and injunction against future sanction.
While Hensley had lost income by not performing weddings and sought financial award for damages with the lawsuit, Mitchell said what mattered is whether she will be subject to more sanctions in the future by not performing certain marriages, in accordance with her faith.
Mitchell further argued that state law protects people’s religious freedom unless there is a “furtherance of a compelling governmental interest.” He also said it prohibits wedding officiants from discriminating based on race, national origin or religion.
“Notably absent from that list of protected criteria that I just mentioned is any mention of discrimination on account of sex or sexual orientation,” Mitchell told justices. “It’s still permissible for wedding officiants — whether they’re judges or members of the clergy — to discriminate based on any other characteristic, as long as it’s not race, national origin or religion, when they decide which weddings they will officiate.”
The commission’s lawyer, Douglas S. Lang, argued to justices that they should not grant a license to discriminate.
One justice asked Lang what the difference was between Hensley’s case and instances of a judge stating their stance on an issue while campaigning for their seat. Lang said it was not an issue that Hensley had talked about, but her actions — which is what was sanctioned.
Justices also asked Lang about the difference between judges who refuse to marry same-sex couples and judges who do not perform any marriages to avoid the matter altogether — and what that portends for their impartiality. Justices of the peace can but are not required to conduct weddings.
“She has chosen to marry some folks and not others. She has chosen to discriminate between some folks in the state of Texas, in favor of other people — and it flies in the face of impartiality,” Lang said.
Justice Jimmy Blacklock followed up with a hypothetical about a judge who stops doing marriages because of an objection to same-sex marriage — why wouldn’t that judge manifest the same bias, he asked.
Lang responded that a judge does not have to say why they do not want to conduct marriages.
Blacklock asked if the hypothetical judge would go before the conduct commission if they explained their reasoning for stopping to be similar to Hensley’s.
Lang returned to Hensley and her conduct, not her belief: She reached out to a Waco newspaper and wearing a judge’s mantel told a reporter that she would not marry a same-sex couple because of her religion, he said, citing the actions that were outlined in the 2019 warning. She also got her court clerks to give an assumed gay couple a handout that said the judge could not perform same-sex weddings due to sincerely held Christian beliefs.
The handout also included alternatives for where the couple could go. Blacklock asked if that was conduct that undermined her impartiality. Repeatedly, Lang turned to Hensley’s actions being at issue.
It is unclear when the state Texas Supreme Court will issue a ruling on the lawsuit.
Hensley, who has not conducted weddings in years, said in a recent interview with The Dallas Morning News that she “would love to win, because I think it’s right. My life’s not gonna change one way or the other.”
She also said that officiating weddings became “more overwhelming than it got to be joyful for me. I can’t say that I have missed it in any sense.”
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/10/25/texas-judge-gay-weddings-supreme-court/.