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Appeals court rejects lawsuit by judge who declined to marry same-sex couples

Austin American-Statesman logo Austin American-Statesman 11/3/2022 Chuck Lindell, Austin American-Statesman
A ruling on the future of same-sex marriage is expected before the U.S. Supreme Court’s term ends in late June or early July. © Austin American-Statesman A ruling on the future of same-sex marriage is expected before the U.S. Supreme Court’s term ends in late June or early July.

A state appeals court Thursday dismissed a lawsuit by a Waco justice of the peace who sued after a state ethics agency rebuked her in 2019 for refusing to marry same-sex couples.

Justice of the Peace Dianne Hensley sued the State Commission on Judicial Conduct, arguing that its sanction violated religious freedoms because her Christian faith did not allow her to conduct same-sex marriages.

The Austin-based 3rd Court of Appeals, however, said Hensley took the wrong path by filing suit because state law established a different process to appeal such reprimands. Hensley also failed to show that agency officials acted beyond their authority when they issued their rebuke, the appeals court said.

In 2019, the commission — which investigates complaints against Texas judges at all levels — declared that Hensley's policy of declining to perform same-sex marriages, despite providing that service to opposite-sex couples, violated judicial ethics by casting doubt on her ability to treat LGBTQ people fairly in her courtroom.

The policy also violated a canon of the Texas Code of Judicial Conduct that requires judges to act in ways that “do not cast reasonable doubt on the judge’s capacity to act impartially,” the commission said.

The state agency gave Hensley a public warning, a mid-level rebuke that is less severe than a reprimand but above an admonition, and Hensley responded with a lawsuit that sought to overturn the warning.

Hensley argued that her marriage policy was protected by the Texas Religious Freedom Restoration Act, which limits government actions that place a substantial burden on the free exercise of religion. She also sought a court ruling stating that judicial ethics cannot be violated by expressing disapproval of same-sex marriage or by supporting a church with similar views.

After the case was transferred from McLennan to Travis County, state District Judge Jan Soifer dismissed Hensley's lawsuit, ruling that she didn't follow established procedures to appeal the warning and that the commission was immune from such a lawsuit.

In Thursday's ruling, the 3rd Court of Appeals affirmed Soifer's dismissal of the lawsuit in an opinion written by Justice Thomas Baker and joined by Justice Edward Smith, both Democrats.

Justice Melissa Goodwin, the court's only Republican member, wrote a concurring opinion that agreed that the lawsuit should be dismissed because Hensley had other avenues to appeal the warning. But Goodwin said she disagreed with the majority opinion's implication that the commission "did not substantially violate Hensley’s free exercise of religion."

Hensley can ask the Texas Supreme Court to review the ruling.

The case arose after the U.S. Supreme Court ruled in 2015 that states including Texas could not prohibit same-sex couples from marrying.

Hensley began performing weddings for opposite-sex couples in 2016. But same-sex couples seeking the same service would be given a document 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 commission records.

The document also listed others in the Waco area who were willing to lead a same-sex ceremony.

This article originally appeared on Austin American-Statesman: Appeals court rejects lawsuit by judge who declined to marry same-sex couples

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