Waco judge files lawsuit after getting warning for refusing to officiate same-sex marriages

A justice of the peace in Texas has sued a state judicial agency that reprimanded her for refusing to officiate same-sex marriages, alleging her religious rights were violated.

Judge Dianne Hensley, a justice of the peace in Waco, argues her Christian faith prevents her from officiating same-sex marriages, according to the lawsuit filed by First Liberty Institute, a legal firm that advocates for religious freedoms. Hensley recused herself from performing the same-sex ceremonies after the Supreme Court legalized same-sex marriages in 2015, and referred couples to officiants in surrounding McLennan County who were willing to marry them, the lawsuit says.

The State Commission on Judicial Conduct began investigating Hensley in May 2018 after reading a news article, the lawsuit says. In November, the commission said Hensley would be publicly warned “for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation,” which was a violation of judicial conduct.

Hensley sued the commission on Monday alleging the agency violated her rights under the Texas Religious Freedom Restoration Act, the lawsuit says.

She is seeking declaratory judgment that her recusal and referral system complies with state law, and that the law prevents the commission from further disciplining judges who recuse themselves from performing same-sex weddings.

The commission did not return an email and a phone call seeking comment on Tuesday.

The commission and its members have “substantially burdened the free exercise of her religion” by investigating and punishing Hensley for acting on her beliefs, the lawsuit says.

The lawsuit says: “There is no compelling governmental interest in preventing judges or justices of the peace from openly expressing a religious belief that opposes homosexual behavior.”

Hensley argues “disapproval of an individual’s behavior does not evince bias toward that individual as a person,” the lawsuit says.

In response to the commission’s inquiry, Hensley cited her religious beliefs and assurances from Texas’ governor and the attorney general that religious liberty of government employees would be protected in defense of her position, according to a copy of the response included in court papers.

Hensley became a justice of the peace in Waco in January 2015. In court documents, she said that she had performed about 80 weddings before the June 2015 Supreme Court ruling that same-sex couples could marry nationwide.

For more than a year after the ruling, Hensley and many justices and officials authorized to perform marriages in McLennan County didn’t officiate any weddings, the lawsuit says.

“After 14 months, I just became very convicted that I was inconveniencing everybody in the county and it was very unfair and that it was better to be able to accommodate who we could,” Hensley said in a video of a First Liberty Institute interview.

“I’ve had people suggest to me, ‘why don’t you just not be available?’ … And to me, that’s much more disrespectful to say, ‘Oh, no, I don’t have time today,’ than it is to just go, ‘I’m sorry, I can’t accommodate you but here’s people who can,’ she said.

In August 2016, Hensley resumed officiating weddings between a man and a woman, the lawsuit says.

She recused herself from officiating same-sex weddings and “politely” referred same-sex couples to other officiants in the county who would perform the ceremony, the lawsuit says.

“At her own expense, Judge Hensley invested extensive time and resources to compile a referral list of alternative, local, and low-cost wedding officiants in Waco” who would officiate weddings that she couldn’t due to her religious convictions or time constraints, the lawsuit says.

The list included a walk-in wedding chapel three blocks from Hensley’s courtroom and a justice of the peace who accepted the referrals for same-sex weddings, the lawsuit says.

Since August 2016, Hensley has officiated ceremonies for 328 couples, and “dozens more” have used her referral system, the lawsuit says.

The lawsuit says “no one complained” about Hensley’s referral system.

Hensley is seeking $10,000 to recover damages, as well as costs and attorney fees.