Six years ago, the Texas Commission on Judicial Conduct issued a “public warning” to Dianne Hensley, a justice of the peace in Waco, for declining to officiate at weddings for same-sex couples. The Commission opined that Judge Hensley had violated Canon 4A(1) of the Texas Code of Judicial Conduct, which states that a judge “shall conduct all of the judge’s extrajudicial activities so that they do not … cast reasonable doubt on the judge’s capacity to act impartially as a judge.” Never mind that Texas law does not itself authorize marriages of same-sex couples. Never mind that a justice of the peace does not have a duty to officiate at weddings. (Hence the Commission’s reliance on “extrajudicial activities.”) Never mind that Judge Hensley had a practice of politely referring same-sex couples to nearby willing officiants.
Judge Hensley publicly explained that she was acting according to her “sincerely held religious belief as a Christian.” As I explained in this post way back in December 2019, the Commission’s public warning to Judge Hensley struck me as highly defective and as a severe threat to religious freedom.
This past October, the Texas supreme court unanimously adopted this comment to Canon 4 of the Texas Code of Judicial Conduct:
It is not a violation of these canons for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.
It thus delivered Judge Hensley a decisive victory in her long-running battle with the Commission.
Or so it seemed.
Instead, as this complaint filed by brilliant lawyer Jonathan Mitchell on Judge Hensley’s behalf spells out, the Commission has “taken the astounding position that Canon 4A(1) continues to prohibit Judge Hensley from performing marriages for opposite-sex couples while recusing herself from same-sex weddings on account of her Christian faith”:
According to the commissioners [see, e.g., footnote 1 of this brief], the new comment to Canon 4 merely allows judges with religious objections to homosexuality to publicly refrain from performing all marriages, and provides no protection to judges who opt out of performing same-sex marriages while continuing to officiate weddings for opposite-sex couples. So Judge Hensley is facing the same threats of disciplinary action that she faced before the new comment to Canon 4, and she is unable to resume performing weddings for opposite-sex couples without exposing herself to investigation and retaliation from the commissioners.
In her complaint filed in federal court, Judge Hensley is suing the members of the Commission for damages and for injunctive relief for their continuing violations of her Free Exercise and Free Speech rights under the federal Constitution.
The complaint includes a back-up claim that calls for the overruling of Obergefell v. Hodges, the 2015 Supreme Court ruling that invented a federal constitutional right to same-sex marriage. The Obergefell ruling “emboldened activists and politicians to embark on a campaign of intimidation against individuals and institutions who dare to express the belief that marriage is between one man and one woman.” Obergefell is fundamentally unsound and illegitimate, it is incompatible with the rationale of Dobbs v. Jackson Women’s Health Center (2022), and it has generated menacing attacks on religious freedom.
The complaint acknowledges that the Supreme Court has instructed the lower federal courts to follow its precedents, and it explicitly states that it includes this claim in order to “preserve” it for an eventual request to the Supreme Court. In the event that Judge Hensley does not prevail in the lower courts, this case will provide a more promising vehicle for the reconsideration of Obergefell than Kim Davis’s recently denied certiorari petition did.