AUSTIN, Texas — A Texas appeals court has tossed a lawsuit filed by a justice of the peace who does not want to perform same-sex marriages.
On Nov. 3, the Austin-based 3rd Court of Appeals sided with the trial court in dismissing all of Dianne Hensley’s claims. She failed to make her case, the three-member panel wrote, that the State Commission on Judicial Conduct violated her religious freedom by reprimanding her for performing weddings solely for heterosexual couples.
“Hensley sought injunctive relief ‘that will prevent the Commission and its members from investigating or sanctioning judges or justices of the peace who recuse themselves from officiating at same-sex weddings on account of their sincere religious beliefs,’” the three justices — one Republican and two Democrats — wrote.
But she could not ask for this relief, they continued, because a state law protecting religious freedoms only prevents “threatened or continued violation” and the commission had not said it would reprimand her again.
The appeals court also ruled that the commission acted within its powers in reprimanding Hensley and was protected from her suit due to sovereign immunity: “The Officials — whether right or wrong — were not acting without legal authority in making their determinations regarding Hensley’s conduct.”
Hensley, who is represented by former Texas Solicitor General Jonathan Mitchell, indicated Dec. 19 that she intends to appeal the decision to the state Supreme Court.
After the U.S. Supreme Court declared gay marriage bans unconstitutional in 2015, Texas judicial rules were updated to note that officials who can perform marriages “can’t discriminate by performing opposite-sex ceremonies and not same-sex ceremonies.” Justices of the peace have the option to perform marriages, but are not required to do so.
Hensley, who is based in Waco, stopped performing marriages after the gay marriage decision. She restarted in August 2016 but only for heterosexual couples, the Waco Tribune-Herald reported at the time.
The judicial conduct commission investigated and, after a hearing in which Hensley argued her conduct was protected due to her Christian faith, she was publicly reprimanded “for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”
Since then, Hensley has not performed marriage ceremonies for any couples. She sued to challenge the commission’s reprimand in 2019 after losing in Travis County court. She appealed last year.
Mitchell, who is behind several lawsuits that could curtail the rights of LGBT people, filed a similar case regarding same-sex marriage pending in federal appeals court. That case goes further, arguing the Supreme Court erred in its 2015 ruling on gay marriage and urging the court to revisit that decision.
“There is no constitutional right to same-sex marriage,” Mitchell argued in that case on behalf of Jack County Judge Brian Keith Umphress. “The federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights.”
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