AUSTIN — The Texas Supreme Court on Wednesday weighed religious liberty concerns and the right to gay marriage as it took up a McLennan County judge’s challenge to the State Commission on Judicial Conduct.
The high court heard arguments in the judicial review of Justice of the Peace Dianne Hensley’s lawsuit against the commission, which issued her a warning because of her decision to marry only opposite-sex couples.
Hensley
With eight of the nine justices present, the court discussed numerous issues stemming from the case, such as the role of state agencies and courts in interpreting the law, and the tension between constitutional protections.
The Texas Supreme Court met Wednesday in the high court building near the Texas Capitol.
A Waco justice of the peace, Hensley has argued since at least 2017 that she has a “religious exemption” from performing same-sex weddings, because of what she previously described as her “Bible-believing” conscience.
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The U.S. Supreme Court ruled in 2015 that states were required to license same-sex marriage. In August 2016, Hensley began conducting weddings for opposite-sex but not same-sex couples.
She continued until November 2019, when the judicial conduct commission issued a public warning that such conduct casts “doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”
The commission said Hensley violated the Texas Code of Judicial Conduct, which states, “A judge shall conduct all of the judge’s extra-judicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.”
Since the commission’s warning Hensley has not presided over any weddings in her court. She was reelected without opposition last year.
Hensley declined to follow the commission’s statutory appeal process and chose instead in December 2019 to sue the commission in state district court, with the backing of a Plano-based conservative Christian organization, First Liberty Institute.
A state district court in Travis County dismissed the suit on jurisdictional grounds and an appellate court affirmed.
Hensley’s attorney, Jonathan Mitchell, told justices Wednesday that she sued the commission under the Texas Religious Freedom Restoration Act of 1999 rather than pursue the statutory appeal process, which she said did not offer the relief she sought.
The statutory process could reverse the commission’s warning, but Hensley sought class-action relief to allow any justice of the peace to opt out of officiating at same-sex weddings. She also sought $10,000 in damages and a declaratory judgment that the commission and its members violated her religious rights.
The Texas Supreme Court met Wednesday in the high court building near the Texas Capitol.
As Mitchell was citing the reasons for filing suit, Justice Jeff Boyd cut him off to ask whether Hensley’s religious beliefs require her to perform weddings. Mitchell said no, sparking a wide-ranging discussion among the justices and attorneys.
The justices asked Mitchell whether the religious exemption Hensley seeks should apply to interracial marriage.
Mitchell said no, because statutes forbid wedding discrimination on basis of race, creed or color.
Justice Brett Busby asked whether the trial court cited the religious freedom act in its decision. Mitchell said no.
The stated purpose of the Supreme Court’s judicial review was to determine whether Hensley’s lawsuit was a prohibited “collateral attack” on the commission’s warning. But the justices took up their prerogative to expand their questions to other matters of constitutionality and interpretation of the law.
Justice John Devine asked Douglas Lang, an attorney representing the commission, about tensions between First Amendment protections for freedom of religion and 14th Amendment protections for gay marriage, which the U.S. Supreme Court cited in the 2015 ruling.
“Is the commission the right place to determine these subtle interplays between the First and 14th amendments?” Devine asked.
Justice Jimmy Blacklock asked Lang whether a judge who publicly endorsed opposite-sex marriage but not same-sex marriage could be sanctioned even without performing any weddings.
Lang replied that the commission would rather have judges do no weddings than marry only opposite-sex couples. He said the commission takes no issue with what a judge might say about weddings, but how a judge acts.
“She has chosen to marry some folks and not others,” Lang said. “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.”
Boyd asked Lang whether the Texas Supreme Court should interpret and rule on the canons of the code it promulgates. Lang said the commission should handle interpreting the canons of the code of judicial conduct.
Mitchell also said Hensley’s lost income from not performing weddings constituted a substantial burden on her free exercise of religion. Boyd offered a counterexample that he could not become a part-time consultant for a policy institute. Chief Justice Nathan Hecht said judges and justices give up certain kinds of income by taking the office of judge.
A case of this complexity normally requires at least two months for the justices to issue a ruling. The Texas Supreme Court almost always issues rulings for all the cases it has heard before the end of its term on June 30.
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