On Monday, April 10, 2023, Dianne Hensley, Justice of the Peace, Precinct 1, Place 1, Waco, McLennan County in Texas, filed a petition for review before the Supreme Court of Texas. This is for the purpose of suing the Texas State Commission on Judicial Conduct that sanctioned her in 2019 over her refusal to officiate at same-sex marriage ceremonies. Justice Hensley seeks declaratory and injunctive relief and compensatory damages under the Texas Religious Freedom Restoration Act.

On November 12, 2019, the Texas State Commission on Judicial Conduct concluded a review of allegations against the Honorable Hensley in regard to the latter’s decision to decline to perform same-sex wedding ceremonies.

The Public Warning states:

“From August 1, 2016, to the present, Judge Hensley has performed opposite-sex weddings for couples but has declined to perform same-sex wedding ceremonies. Beginning on about August I, 2016, Judge Hensley and her court staff began giving all same-sex couples wishing to be married by Judge Hensley a document which stated: “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.” The document contained a list of local persons who would officiate a same-sex wedding.”

The Public Warning continues:

“Judge Hensley told the Waco-Tribune, the public, and the Commission that her conscience and religion prohibited her from officiating same-sex weddings. At her appearance before the Commission, Judge Hensley testified that she would recuse herself from a case in which a party doubted her impartiality on the basis that she publicly refuses to perform same-sex weddings.”

In lieu of this, the Texas State Commission on Judicial Conduct has determined that Honorable Hensley should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct.

In response to this, on April 10, 2023, Honorable Hensley sued the commission and its members for declaratory and injunctive relief and compensatory damages under the Texas Religious Freedom Restoration Act. The District Court and the Court of Appeals rejected her claims for specious and contrived jurisdictional reasons. In response, Judge Hensley respectfully requested the court to grant the petition for review and reverse the court of appeals’ decision.

Judge Hensley has made clear throughout the litigation that she is not asking the district court to review, vacate, or in any way alter the sanction that the commission imposed. Instead, she is seeking declaratory and injunctive relief that will stop the commission from initiating future disciplinary proceedings against her, as well as damages for the income she lost when she stopped performing weddings.

The Petitioner’s Brief states:

“The court of appeals was equally off-base in dismissing Judge Hensley’s claims on sovereign – immunity grounds. Texas RFRA explicitly waives the defendants’ sovereign immunity, 4 and even apart from Texas RFRA the U ni- form Declaratory Judgment Act waives the Commission’s sovereign immunity to the extent Judge Hensley is challenging the validity of Canon 4A. What’s more, Judge Hensley’s claims for prospective relief against the individual commissioners do not even implicate sovereign immunity because she has brought ultra vires claims against them.”

The Petitioner’s Brief continues:

“The district court’s stance is untenable. The Texas Religious Freedom Restoration Act explicitly allows plaintiffs to seek prospective relief — such as declaratory judgments and injunctions — which serve only to protect a litigant from anticipated future harm. If the district court were right to assert that post-notice events can never provide a basis for relief under Texas RFRA, then no injunction or declaratory judgment could ever be issued in a Texas RFRA lawsuit. Judge Hensley is seeking declaratory and injunctive relief to prevent the Commission from investigating or penalizing her in the future, and a litigant cannot obtain prospective relief by waiting for the expected harm to occur, providing notice to the defendant, and then waiting an additional 60 days before filing suit. Judge Hensley’s notice of February 17, 2019, authorizes her to seek relief for any past, present, or future “investigation” or “threatened penalties ” arising out of her refusal to perform same-sex weddings.”

According to Judge Hensley, there are also thousands of judges and justices of the peace in Texas who publicly belong to churches that refuse to recognize same-sex marriages. Many of those judges and justices of the peace financially support those churches, as well as charities that hold similar religious beliefs. There is no compelling governmental interest in suppressing judicial affiliation with organizations that oppose same-sex marriage for religious reasons, on the ground that this somehow casts reasonable doubt on the judge’s “impartiality” toward homosexual litigants. According to Judge Hensley, no different result should obtain when she expresses religious opposition to same-sex marriage by politely and respectfully recusing herself from officiating at same-sex weddings.

In lieu of this, Judge Hensley requested that the court should declare that her decision to recuse herself from officiating at same-sex weddings and her desire to continue her recusal and referral system is not a willful or persistent conduct that is clearly inconsistent with the proper performance of her duties or casts public discredit upon the judiciary or administration of justice.

The Conclusion states:

“The petition for review should be granted, and the judgment of the court of appeals should be reversed. The case should be remanded to the district court with instructions to enter judgment for Judge Hensley.”

Judge Hensley’s courtroom is located at 1800 Richter Ave # A, Waco, TX 76711 and can be reached at +1 254-752-4242. Her info can be found on Ballotpedia.org.

A copy of the original filing can be found here.