Waco judge sues state agency after receiving public warning for refusing to officiate same-sex marriages

A Waco judge who received a public warning last month for refusing to officiate same-sex marriages filed a lawsuit against the state agency that issued the warning, claiming the governmental body violated state law by punishing her for actions taken in accordance with her faith.

The First Liberty Institute, a high-profile Plano-based religious liberty law firm closely aligned with the Texas Attorney General’s Office, will represent the judge, Dianne Hensley, in the lawsuit filed Tuesday in McLennan County District Court.

Shortly after the U.S. Supreme Court asserted the constitutional right for same-sex couples to marry in the landmark 2015 Obergefell decision, Hensley refused to officiate any weddings. But in August 2016, she decided to resume officiating weddings between men and women, and said she would “politely refer” same-sex couples who sought her services to others in the area.

“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,” Hensley said in a statement.

Hensley, who claims the state violated the Texas Religious Freedom Restoration Act, is seeking a declaratory judgment from the court decreeing that any justice of the peace may refuse to officiate a same-sex wedding “if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.”

The public warning issued by the State Commission on Judicial Conduct Nov. 12 did not carry a fine. But Hensley claims the investigation and warning “substantially burdened the free exercise of her religion, with no compelling justification.” She seeks damages of $10,000.

Her attorney on the case, Jonathan Mitchell, is a former solicitor general of Texas.

Texas Attorney General Ken Paxton, who has made religious liberty a priority of his office, has worked alongside the First Liberty Institute in the past, including on a lawsuit against the city of San Antonio after it banned Chick-fil-A from opening a location in its airport. That office typically represents state agencies in court, but in some cases has chosen not to do so.

A spokesman for the attorney general’s office said the State Commission on Judicial Conduct is an independent agency authorized to represent itself in legal proceedings, “which it typically does.” It has not yet asked the attorney general’s office for representation, but can, he added.

The interim executive director of the State Commission on Judicial Conduct said the agency had not yet been served with the lawsuit and had no comment.

Hensley’s case has already generated significant public attention. Two members of the commission, who were appointed last year by the governor, claim he ousted them after they indicated they would vote to sanction Hensley. A spokesman for the governor said all nominations are based on merit.

Ricardo Martinez, Equality Texas CEO, said in a statement that as a justice of the peace, Hensley took an oath "to serve all Texans."

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