Texas Judge Sues to Protect her Right to Not Officiate Gay Weddings

After receiving a rebuke and a warning from the State Commission on Judicial Conduct, Waco-based Judge Dianne Hensley is filing a lawsuit against the agency, claiming that they are attempting to violate her right to exercise her religion in good faith.

Hensley decided after the 2015 Supreme Court decision legalizing gay marriage that she would refuse to officiate any same-sex wedding ceremony that came before her court. Indeed, for a time, she refused to officiate any weddings at all before resuming male/female unions in August of the following year.

In issuing a public warning to the judge last month, the State Commission “substantially burdened the free exercise of her religion, with no compelling justification,” says the lawsuit.

In a statement, Hensley said, “For providing a solution to meet a need in my community while remaining faithful to my religious beliefs, I received a ‘Public Warning.’ No one should be punished for that.”

But gay activists in Texas say that Hensley should do her job or resign.

“These elected officials continue to waste taxpayer money in an obsession to discriminate against gay and transgender Texans,” said Ricardo Martinez of Equality Texas. “This is not what Texans want or expect from elected officials. Discrimination of any kind is unacceptable. Their actions are mean spirited, futile, a waste of taxpayer money and most importantly, it’s wrong.”

After the Obergefell decision, the Texas Justice Court Training Center reported that there was no “current legal authority which would permit a justice of the peace” to perform straight marriages while declining to perform gay ones. In comments to the Houston Chronicle last month, the institute’s executive director, Thea Whalen, said that their position remained the same: “If you’re going to perform marriages, you must perform marriages for everyone.”

Hensley and her lawyers, however, say that the Texas Religion Freedom Restoration Act provides her with all the legal cover she needs to avoid rebuke or sanction from state agencies. She is seeking a judgment from the court that makes a concrete statement that judges may decline to perform “if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.”

She is seeking damages of $10,000.

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