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Can a Waco judge legally refuse to marry gay couples? The Texas Supreme Court could decide

Jim Obergefell, the named plaintiff in the Obergefell v. Hodges Supreme Court case that legalized same sex marriage nationwide, arrives for a news conference on the steps of the Texas Capitol, June 29, 2015, in Austin, Texas.
Eric Gay
Jim Obergefell, the named plaintiff in the Obergefell v. Hodges Supreme Court case that legalized same sex marriage nationwide, arrives for a news conference on the steps of the Texas Capitol, June 29, 2015, in Austin, Texas.

Texas Supreme Court justices on Wednesday heard oral arguments in a case over whether a Christian justice of the peace from Waco can legally refuse to perform same-sex wedding ceremonies.

Now the court could decide whether McLennan County Justice of the Peace Dianne Hensley is protected from punishment under Texas' religious freedom laws.

Hensley and her lawyers say a public 2019 warning from the State Commission on Judicial Conduct, which investigates allegations of misconduct among Texas judges, was illegal under the Texas Religious Freedom Restoration Act.

“The commission is continuing to threaten Judge Hensley, as well as every judicial officer in the state of Texas, with disciplinary action if they refuse to officiate at same-sex marriages, whether for religious reasons or not,” said Jonathan Mitchell, one of Hensley’s lead attorneys.

Hensley's appeal also asked the court to weigh whether lower courts improperly dismissed her claims against the commission. The justices could rule on only that question and send the case back without ruling on whether she's protected.

The landmark U.S. Supreme Court case Obergefell v. Hodges legalized gay marriage nationally in 2015. It required judges and justices of the peace — who in Texas are allowed to officiate weddings but aren’t required to — to either officiate both gay and straight marriages or none at all.

Hensley said her Christian beliefs don't allow her to officiate a same-sex marriage, according to her petition to the Texas Supreme Court, so she chose not to officiate any weddings following the U.S. Supreme Court decision. Other judges and justices of the peace in Waco did the same.

But in an Oct. 17 interview with The Dallas Morning News, Hensley said she later heard a young woman crying outside her office because the woman was unable to find anyone to officiate her wedding.

Hensley said that pushed her to begin performing weddings again in 2016 — but only for straight couples.

“It just started really gnawing at me that this was unfair to people, that nobody in this courthouse was doing weddings,” she told The News.

She continued to turn away same-sex couples, with her clerks informing them of her religious beliefs and referring them to a different judge and other nearby officiants who would marry them, according to the petition.

Hensley told the Waco Tribune-Herald about that decision in a 2017 interview. Once the commission learned of this, it launched an inquiry into Hensley’s policy in 2018.

She told the commission it was “wrong to inconvenience ninety-nine percent of the population because I was unable to accommodate less than one percent,” according to the petition.

The commission issued a public warning against her in late 2019, saying her refusal to marry people based on their sexual orientation cast doubt on her ability to appear impartial as a judge.

Justice Jimmy Blacklock questioned why Hensley’s case is different than other judges who stopped marrying all couples after the Obergefell decision.

“If that's the case, that this view manifests bias, why [isn't] the judge who refuses to do all marriages because he doesn't want to do same sex marriages, manifesting the same bias?” Blacklock said.

Douglas Lang, a member of the state commission and its lead attorney, told justices Wednesday Hensley’s comments specifically showed she would act with bias.

“It’s conduct, not her belief,” Lang said. “And it's conduct where she reached out to the Waco newspaper and television and got on the record wearing the mantle of judge, telling the reporter, ‘I will not marry gay couples, but I will marry heterosexual couples. And it's because of my religion.’”

Hensley had the choice to appeal the public reprimand but did not. Instead, she filed a lawsuit in Travis County in 2019 to argue for protections under the Texas Religious Freedom Restoration Act, which states the government can’t make restrictions that substantially burden someone’s freedom of religion.

Both the district court and the state Third Court of Appeals dismissed Hensley’s case because she didn’t go through with the internal appeals process. They also granted the commission sovereign immunity, which protects state government agencies from liability in lawsuits. Her appeal asks the justices to overturn that ruling as well.

The high court could feasibly send the case back to the Travis County District Court without weighing in on the RFRA, said Dale Carpenter, a constitutional law professor at Southern Methodist University.

"This would be unprecedented and aggressive, if the court were just to say she has the freedom to shut the courthouse doors to gay couples," Carpenter said. "There should be a lot more evidence taken on that kind of a question before they make that decision."

Justice Jeff Boyd pointed out neither the commission nor Hensley’s faith requires her to officiate weddings.

“How can a requirement that if she performs wedding ceremonies, she must perform them regardless of the gender of the participants … substantially burden her religious faith if her faith does not require her to perform them at all?” Boyd said.

Mitchell said the goal of the lawsuit isn’t to challenge the commission’s initial public warning, but for Hensley to be protected from future, potentially more severe punishment and receive money she lost from not performing any weddings.

"That is the relief authorized by Texas RFRA, and that is the relief that Judge Hensley is seeking from the state judiciary,” Mitchell said.

Lang told justices there was no threat nor plan for future punishment against Hensley.

Justice Jane Bland brought up the case of a Colorado graphic designer Lorie Smith, who the U.S. Supreme Court ruled in June does not have to make content for her clients that supports gay marriage, which is against Smith's beliefs as a Christian.

But Lang said that’s a commercial issue incomparable to a judge like Hensley, who takes an oath to uphold the law.

“For (Hensley), she's not taking that oath about herself,” Lang said. “She's telling the state — all the citizens — that she's going to do what the law says … she wants to carve out, shall we call, the license to discriminate.”
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Toluwani Osibamowo