State Supreme Court rules on justice of the peace pummeled for her faith

By Bob Unruh

(Image by Jill Wellington from Pixabay)

The state Supreme Court in Texas has sided with a justice of the peace who was reprimanded by the Judicial Conduct Commission for taking her own time and making the effort to create a referral list for same-sex couples who might come to her wanting her to perform a wedding.

Justice of the Peace Dianne Hensley doesn’t perform those because of her Christian faith, so she went out of the way to provide a service to those individuals.

With no complaints over her actions filed, the state commission actually sought out her case, investigated, and then reprimanded her. She sued and the Texas Supreme Court now has returned her case to the lower courts to address remaining issues in her case.

“Judge Hensley’s way of reconciling her religious beliefs while meeting the needs of her community is not only legal but should stand as a model for public officials across Texas,” said Hiram Sasser, of First Liberty Institute. “This is a great victory for Judge Hensley and renews her opportunity to seek justice under the religious liberty protections of the law. We appreciate that Justices Blacklock and Devine (who wrote a concurrence) were willing to rule right now that what the Commission on Judicial Conduct did was unlawful religious discrimination. But we will continue this fight against religious discrimination as long as the Commission insists on their form of a religious test for public office.”

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Hensley said, “I am truly grateful to the Supreme Court for giving me the opportunity to continue to stand for religious liberty and the rule of law.”

First Liberty noted, “To ensure all residents of McLennan County have access to low-cost wedding ceremonies, at her own expense, Judge Hensley invested extensive time and resources to compile a referral list of alternative, local wedding officiants. The list included one within walking distance of her office who agreed to reduce the cost of the wedding to the same amount Judge Hensley received and who would do same-sex weddings within the same timeframe as Judge Hensley.

“Her innovative referral solution provided wedding options after many public officials ceased from officiating all weddings. According to Texas law, judges are not required to officiate weddings, but Judge Hensley sought to ensure that those in McLennan County seeking to be married were accommodated, regardless of their sexual orientation. Despite her efforts and no complaints from the public, the State Commission issued a ‘Public Warning’ sanctioning her for the referral solution and accused her of violating certain canons of the Texas Code of Judicial Conduct.”

It was in a concurrence to the court’s ruling that the public was delivered the real story:

“We could have all but ended this regrettable case today. We should have done so by holding that the Judicial Conduct Commission lacks the lawful authority to sanction Judge Hensley or any other Texas judge who politely declines to perform same-sex marriages but respectfully refers same-sex couples to a nearby officiant who will gladly do so. Judge Hensley’s eminently reasonable policy honored her personal convictions and showed courtesy to same-sex couples, who the U.S. Supreme Court has said are entitled to a marriage—not to a particular marriage officiant, and especially not to an officiant with religious objections to participating in the ceremony.

“In fact, the record contains no indication that any same-sex couple ever complained to anyone about Judge Hensley’s respectful but principled treatment of them. And that is to their credit. By all accounts, these couples were treated courteously by Judge Hensley and her staff, and they were politely directed down the street to another officiant happy to perform their marriage. Judge Hensley even arranged for nearby private wedding officiants to charge the cheaper government rate to the same-sex couples she referred. Imagine a couple in that situation trying to coerce the courteous and helpful Christian judge to violate her convictions for their convenience, when other local officiants are happy to accommodate. What purpose could that possibly serve— other than to prove that adherents to the old orthodoxy will be made to bend the knee to the new one?”

The instructional opinion continued, “I find it encouraging that we have no indication any same-sex couple even considered handling the situation that way. What decent person would? Judge Hensley treated them respectfully. They got married nearby. They went about their lives. Judge Hensley went back to work, her Christian conscience clean, her knees bent only to her God. Sounds like a win-win. Indeed, it sounds just like what the Fifth Circuit envisioned, when it directed Texas to provide same-sex marriages because of Obergefell v. Hodges but cautioned that ‘controversies involving the intersection of’ the ancient rights of religious freedom and free speech and the new right of same-sex marriage were not resolved by Obergefell but instead remained open to ‘the robust operation of our system of laws and the good faith of those who are impacted by them.'”

Then the commission got involved.

“Apparently after combing the newspapers for juicy targets, the commission decided, on its own initiative, to subject Judge Hensley to a lengthy private inquisition and then to publicly humiliate her. It claimed that her marriage-referral policy ‘cast[s] doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation’—even though she offered to immediately recuse herself if litigants in her court ever thought she might not treat them fairly because of her marriage policy (there is no indication any litigant ever did). Several years later, here we are. There are no victims. There was no crime. We have a Christian justice of the peace in a small Texas city doing her best to navigate her duties to God and to the public. We have no real people even claiming to be harmed by her actions. We certainly have no same-sex couples denied a marriage—or anything even close to that. There is no good reason for this case to exist. But it does exist. It exists because of the Judicial Conduct Commission, which veered far outside its proper lane by self-initiating this victimless but politically and emotionally charged case.”

The opinion said the commission not only misinterpreted the code of conduct, it violated Hensley’s religious-freedom rights.

In fact, it said, “The Commission has done far more, in the eyes of many Texans, to undermine public confidence in Texas’s judicial branch than a lone justice of the peace in Waco ever could.”

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