Bench Memos

Law & the Courts

Gross Misconduct by Texas Commission on Judicial Conduct

Under Texas law, a justice of the peace is authorized to officiate at weddings but is not required to do so. Since August 2016, Dianne Hensley, a justice of the peace in Waco, has officiated at weddings for opposite-sex couples but has declined to officiate at weddings for same-sex couples. Instead, she has politely referred same-sex couples to nearby willing officiants. Hensley has publicly explained that she is acting according to her “sincerely held religious belief as a Christian.”

In November, the Texas Commission on Judicial Conduct issued a “public warning” to Hensley. Her refusal to perform same-sex weddings, the Commission concluded, “cast[s] doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.” That public warning threatens Hensley with the prospect of more severe discipline, including removal from office, if she continues to decline to officiate at same-sex weddings.

On Tuesday, Judge Hensley sued the Commission for violating her rights under the Texas Religious Freedom Restoration Act.

The Commission’s public warning to Hensley strikes me as highly defective and as a severe threat to religious freedom:

1. Justice Kennedy’s majority opinion in Obergefell v. Hodges explicitly repudiates the proposition that a person’s opposition to same-sex marriage should be deemed to reflect bias on the part of that person against gays and lesbians: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” (Those “premises” include the reality that marriage developed everywhere in human civilization as an opposite-sex union in order to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who, often unintentionally, naturally generated their very existence.)

The Commission’s conclusion rests on the very leap of logic that Justice Kennedy rejected.

Indeed, according to the lawsuit that Hensley has now filed against the Commission, far from manifesting any bias against gays and lesbians, Hensley has made significant efforts to help same-sex couples find a wedding officiant. Among other things, she provides them a list of willing officiants. One such officiant operates a walk-in wedding chapel a short walk from her courtroom, and Hensley has arranged with that officiant to give same-sex couples referred by her a discounted rate equal to her own rate.

As I observed in another post today, our judicial system operates on the presumption that judges will set aside their own likes and dislikes in deciding cases. The Commission provides no basis for depriving Hensley of that presumption.

2. As the complaint spells out, the Commission’s action violates Hensley’s rights under the Texas Religious Freedom Restoration Act. (The Commission’s public warning makes no mention of the Act, even though Judge Hensley and her lawyers cited it repeatedly when defending her actions before the Commission.) In this regard, it’s important to have in mind that Hensley does not have a duty as a justice of a peace to officiate at weddings. Rather, as the Commission acknowledges, she officiates at weddings as part of her “extra-judicial activities.” (The matter here is thus distinct from that posed by a state employee who has the job of issuing marriage licenses and who declines to issue licenses to same-sex couples.)

If the Commission can punish a judge for deciding, on religious grounds, not to officiate at same-sex weddings, then what is to stop the Commission from punishing a judge who publicly affiliates with a church or charity that embraces the perennial understanding of marriage?

3. The Commission adopts an extravagant overreading of Obergefell that conflicts with the Commission’s obligations as an instrumentality of the state of Texas.

Nothing in Obergefell dictates that anyone whom the state authorizes (but does not require) to officiate at weddings must be willing to officiate both for opposite-sex couples and same-sex couples. Indeed, if that were the law, then clergy would be compelled to officiate at same-sex marriages, as Texas law authorizes both clergy and judges to perform marriage ceremonies. Given that Texas laws continue to define marriage exclusively as the union of one man and one woman, it ought to be incumbent on Texas state actors, like the Commission, to construe Obergefell as narrowly as is fairly possible.

Judge Hensley is complying with Texas laws. It’s the Commission that is failing to do so. Let’s hope that the Texas courts promptly put a stop to the Commission’s unlawful bullying.


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