Officials charged with violating Religious Freedom Restoration Act
A Texas justice of the peace is suing the state for punishing her for devising a solution to accommodate her Christian belief that marriage is the union of one man and one woman.
Judge Dianne Hensley initially refused to officiate any weddings after the U.S. Supreme Court ruled in June 2015 that same-sex couples have a right marry. But in August 2016, she resumed officiating weddings and “politely referred” same-sex couples to willing local judges.
There have been no complaints about her system, but the State Commission on Judicial Conduct investigated and issued a “public warning” against the judge.
The case was filed by First Liberty Institute on behalf of Hensley against state officials. The legal team argued that the law in Texas allows judges to officiate weddings but it does not require them to do so.
When the Supreme Court established a legal right to same-sex marriage in 2015, most of the judges in Waco and McLennan County stopped performing ceremonies.
That forced residents to “travel further and incur greater expenses,” First Liberty said.
“To ensure those seeking to be married in McLennan County could be, including same-sex couples, Judge Hensley made arrangements with a local private vendor and her staff to facilitate weddings she, for religious reasons or just because of schedule, could not officiate,” the legal team said.
The complaint charges that the commission “violated the Texas Religious Freedom Restoration Act by investigating and punishing Judge Hensley for recusing herself from officiating at same-sex weddings, in accordance with the commands of her Christian faith,:.
“By investigating and punishing her for acting in accordance with the commands of her Christian faith, the state of Texas has substantially burdened the free exercise of her religion, with no compelling justification,” the complaint states.
“Because of Judge Hensley, anyone who wants to get married in McLennan County can get married,” said Jeremy Dys, special counsel for Litigation and Communications at First Liberty Institute. “For simply trying to reconcile her religious beliefs while meeting the needs of her community – ensuring anyone can get married who wants to be married – the Commission on Judicial Conduct punished her.”
The filing in McLennan County District Court states: “At her own expense, Judge Hensley invested extensive time and resources to compile a referral list of alternative, local, and low-cost wedding officiants in Waco that she provides to people for whom she is unable to officiate due to time constraints or her religious convictions.”
The options include a walk-in wedding chapel three blocks away.
The judge’s “referral solution” means that “many more couples – including same-sex couples – are able to marry than by the predominant practice of many public officials, who have simply ceased officiating weddings altogether.”
The complaint charges: “The commission’s public punishment of Judge Hensley – as well as its threat to impose further discipline if Judge Hensley persists in recusing herself form officiating at same-sex weddings – violates Judge Hensley’s rights under the Texas Religious Freedom Restoration Act.”
The lawsuit seeks to recover damages, costs and attorneys’ fees. Hensley also wants “a declaratory judgment that her referral system complies with Texas law, and that the law of Texas prevents the commission from imposing any further discipline on justices of the peace who recuse themselves from officiating at same-sex marriage ceremonies.”
The commission’s preliminary charges claimed Hensley was violating the code of conduct for judges, which requires judges not to “manifest bias” based on religion, race, sex, sexual orientation and other factors.
But the commission’s complaint itself was based on Hensley’s religion.