EchoSense:Gay marriage is legal in Texas. A justice who won't marry same-sex couples heads to court anyway

The EchoSenseTexas Supreme Court is reconsidering the case of a justice of the peace who for years turned away gay couples who wanted to get married even after same-sex marriage was legalized nationwide. 

Oral arguments begin Wednesday in the case of Dianne Hensley, a justice of the peace in Waco who was reprimanded by the state’s judicial conduct commission in 2019 for only performing heterosexual weddings. 

The new phase of the litigation is the first page in the final chapter of a controversial case that has lingered in the Texas court system – and hung over LGBTQ people in the state – for years. It’s yet another legal fight at the intersection of religious freedom and the civil rights of queer and transgender Americans. In recent years, as the makeup of the nation’s highest court has grown more conservative, that fight has only become more pronounced in lower courts across the country.

According to a public warning issued by the commission four years ago, which also cited reports in the Waco Tribune-Herald, Hensley and her staff started turning gay couples away around August 2016, about a year after the Supreme Court legalized same-sex marriage nationwide in the landmark ruling Obergefell v. Hodges. Hensley performed no marriages between the ruling and that time, according to her initial class-action petition.

That changed when she and her staff began handing gay couples documents 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 the commission's 2019 public warning. 

The commission, an independent agency responsible for overseeing cases of judicial misconduct, warned Hensley she appeared to be violating state law. Hensley then sued the commission, arguing the reprimand violated her religious freedoms. Her case was eventually dismissed in appeals court. The state supreme court, which is made up entirely of Republicans, several of whom held on to their seats in the last midterm elections, agreed in late June to hear her appeal. 

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A few days later, in a separate, widely anticipated decision, the United States Supreme Court ruled that a Colorado website designer could refuse service to LGBTQ clients on religious grounds. Hensley’s legal team soon filed a brief arguing that the ruling, 303 Creative LLC v. Elenis, should help her case. Her lawyers called the Supreme Court decision “instructive because it rejects the idea of a ‘compelling interest’ in forcing wedding vendors to participate in same-sex and opposite-sex marriage ceremonies on equal terms.” 

A case about ensuring judges' impartiality

The Supreme Court case doesn't directly relate to Hensley's, one of her lawyers said. Hiram Sasser, with the Christian conservative legal group the First Liberty Institute, is among the attorneys representing Hensley. In an interview Tuesday, he said the 303 Creative case was a good example of how he wants to see the law applied to Hensley's situation.   

He also defended his client. By referring gay couples to other justices who were more willing to perform weddings for them, she found a way to accommodate both her religious faith and all types of people seeking a low-cost wedding, he said.

Douglas S. Lang, a former appeals court justice representing the judicial commission in court, said Hensley’s argument that the commission discriminated against her religious beliefs isn't accurate.

The public warning, he said, was instead about her behavior, which Lang said demonstrated judicial bias. 

“The Commission will stand up and argue for the preservation of the compelling interest to assure judges’ impartiality and support Texas citizens’ trust in the impartiality of the judiciary,” Lang said in an email to USA TODAY, summarizing the arguments he plans to make before the court Wednesday.

In an interview this month with the Dallas Morning News, Hensley said she didn't want to be “caricatured” as the case reenters the spotlight. She never received any complaints about turning away same-sex couples, she said. But she couldn't be held responsible for other people's feelings.

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“There have been many situations in my life when I didn’t feel overly welcomed or endorsed or whatever,” she told the newspaper. “I’m an adult. That’s just how life is.”

Johnathan Gooch, the communications director for the LGBTQ advocacy group Equality Texas, took issue with those comments. He told USA TODAY that gay couples in Texas haven’t complained about feeling unwelcome. 

“They’re complaining that their rights are being ignored or overlooked,” he said. “That’s a very different situation.”

Zachary Schermele is a breaking news and education reporter for USA TODAY. You can reach him by email at [email protected]. Follow him on X at @ZachSchermele.