Gay marriage is legal in Texas. A justice who won't marry same-sex couples heads to court anyway

The Texas Supreme Court is reconsidering the case of a justice of the peace who for years turned away gay couples who wanted to get married even after same-sex marriage was legalized nationwide.

Oral arguments began Wednesday in the case of Dianne Hensley, a justice of the peace in Waco who was reprimanded by the state’s judicial conduct commission in 2019 for presiding over only heterosexual weddings.

The new phase of the litigation is the first page in the final chapter of a controversial case that has lingered in the Texas court system – and hung over LGBTQ+ people in the state – for years. It’s yet another legal fight at the intersection of religious freedom and the civil rights of queer and transgender Americans. In recent years, as the makeup of the nation’s highest court has grown more conservative, that fight has only become more pronounced in lower courts across the country.

Before the justices, Hensley's lawyer argued the commission's sanction of the justice violated the state's special religious freedom law, the Religious Freedom and Restoration Act. Jonathan Mitchell, a former Texas solicitor general and the conservative lawyer behind the state's "bounty hunter" abortion ban, told the justices that the commission overstepped its authority and that his client lost money as a result of the situation.

But the commission's lawyer argued Hensley violated her judicial oath when she chose to discriminate against select Texans.

"It flies in the face of impartiality," said Douglas S. Lang, a former appeals court justice representing the judicial commission.

According to a public warning issued by the commission four years ago, which also cited reports in the Waco Tribune-Herald, Hensley and her staff started turning gay couples away around August 2016, about a year after the Supreme Court legalized same-sex marriage nationwide in the landmark ruling Obergefell v. Hodges.

Though Hensley presided over no marriages between the ruling and that time, according to her initial class-action petition, her lawyer argued the Obergefell case makes room for caveats.

“The court at least gestures toward the idea that there might be accommodations for religious liberty in the context of same-sex marriage," Mitchell said in court Wednesday.

In 2016, Hensley and her staff began handing gay couples documents that said: "I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings,” according to the commission's 2019 public warning.

The commission, an independent agency responsible for overseeing cases of judicial misconduct, warned Hensley she appeared to be violating state law. Hensley then sued the commission, arguing the reprimand violated her religious freedoms. Her case was eventually dismissed in appeals court. The state Supreme Court, which is made up entirely of Republicans, several of whom held on to their seats in the last midterm elections, agreed in late June to hear her appeal.

Selective justice of the peace: Appeals court rejects lawsuit by judge who declined to marry same-sex couples

A few days later, in a separate, widely anticipated decision, the U.S. Supreme Court ruled that a Colorado website designer could refuse service to LGBTQ+ clients on religious grounds. Hensley’s legal team soon filed a brief arguing that the ruling, 303 Creative LLC v. Elenis, should help her case. Her lawyers called the Supreme Court decision “instructive because it rejects the idea of a ‘compelling interest’ in forcing wedding vendors to participate in same-sex and opposite-sex marriage ceremonies on equal terms.”

The commission's lawyer rejected that idea, he said Wednesday, because they involve commercial businesses, not justices of the peace.

"They’re a completely separate situation from a judge," Lang said.

Still, at least one of the justices Wednesday seemed eager to kick the case to a higher federal court.

Jimmy Blacklock, who was appointed in 2018 to the state Supreme Court by Republican Gov. Greg Abbott, called the case a "very interesting question of constitutional law" and wondered aloud about the appropriate venue for deciding it.

"Is the judicial conduct commission the appropriate forum to be deciding those sorts of delicate and important questions about how our rights are going to be balanced, and how we're going to be governed?" he asked.

Lang said it was.

A case about ensuring judges' impartiality

The Supreme Court case from this summer doesn't directly relate to Hensley's, one of her lawyers told USA TODAY. Hiram Sasser, with the Christian conservative legal group the First Liberty Institute, is among the attorneys representing Hensley. In an interview Tuesday, he said the 303 Creative case was instead a good example of how he wants to see the law applied to Hensley's situation. 

He also defended his client. By referring gay couples to other justices who were more willing to perform weddings for them, she found a way to accommodate both her religious faith and all types of people seeking a low-cost wedding, he said.

In an email to USA TODAY, Lang said the public warning wasn't about Hensley's religious beliefs. It was about her behavior, which he said demonstrated bias.

“The Commission will stand up and argue for the preservation of the compelling interest to assure judges’ impartiality and support Texas citizens’ trust in the impartiality of the judiciary,” Lang said.

In an interview this month with the Dallas Morning News, Hensley said she didn't want to be “caricatured” as the case reenters the spotlight. She never received any complaints about turning away same-sex couples, she said. But she couldn't be held responsible for other people's feelings.

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“There have been many situations in my life when I didn’t feel overly welcomed or endorsed or whatever,” she told the newspaper. “I’m an adult. That’s just how life is.”

Johnathan Gooch, the communications director for the LGBTQ advocacy group Equality Texas, took issue with those comments. He told USA TODAY that gay couples in Texas haven’t complained about feeling unwelcome.

“They’re complaining that their rights are being ignored or overlooked,” he said. “That’s a very different situation.”

Zachary Schermele is a breaking news and education reporter for USA TODAY. You can reach him by email at zschermele@usatoday.com. Follow him on X at @ZachSchermele.

This article originally appeared on USA TODAY: Texas Supreme Court hears case of justice who wouldn't wed gay couples