Texas anti-marriage equality judge refuses to drop suit against state commission

A Texas state judge is refusing to drop her lawsuit against a state commission that publicly warned she violated her oath because she refused to officiate wedding ceremonies for members of the same sex, Reuters reported.

Judge Diane Hensley was publicly warned by the State Commission on Judicial Conduct in November 2019 that she violated the Texas Code of Judicial Canon in her official duties as well as her extra-curricular activities.

Hensley refused to officiate at same-sex weddings because she found marriage equality incompatible with her Christian beliefs. Instead, a system was created to refer prospective same-sex couples to justices who would perform the ceremony at the same price of $100. Performing wedding ceremonies is not a required job duty, but judges have the choice of officiating at weddings.

Following an investigative review that included interviewing Hensely, the commission warned that her refusal to officiate at same-sex ceremonies cast doubt on “her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation.”

Rather than appeal her warning directly to the commission, she instead filed suit against the commission in state court. She argued the commission had violated her protections under the Texas Religious Freedom Restoration Act (TRFRA) and her right to freedom of speech under the Free Speech Clause in the Texas Constitution.

She lost both at trial and on appeal, but the Texas Supreme Court overturned those rulings and reinstated most of the case in June and sent it back to the courts.

Last month, the commission withdrew its warning and dismissed its official complaint against Hensley but recent court filings reveal Hensley is not backing down. Her lawyer, Jonathan F. Mitchell of Mitchell Law PLLC, advised the commission the case is still alive.

“The Commission’s public statement of September 9, 2024, does not moot Judge Hensley’s claims against the defendants-appellees because a defendant cannot moot a claim for prospective relief by voluntarily changing its behavior after the plaintiff sues,” Mitchell wrote in a letter to the commission dated Oct. 10.

“In addition, the Commission’s statement of September 9, 2024, does not acknowledge that judges and justices of the peace in Texas may lawfully choose to officiate only at opposite-sex weddings without fear of discipline from the State Commission on Judicial Conduct,” Mitchell added.

Meanwhile, one of the commission’s lawyers described Hensley’s position as a “license to discriminate.”