Texas judge who refused to perform same-sex weddings wins $640,000 reward for her bigotry
Justice of the Peace Dianne Hensley refused to do her job, sued over a mild ethics warning, and is now richer as a result
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An anti-LGBTQ judge from Texas has been rewarded $640,000 for (1) refusing to do her job and (2) being Christian. It’s the culmination of a multi-year crusade by a conservative activist in a position of power.
Back in December of 2019, Justice of The Peace Dianne Hensley refused to marry gay couples who visited her courthouse, even though she’s a public official and not a priest. She was given a public warning by the Texas Commission on Judicial Conduct… which was really nothing more than a slap on the wrist. Instead of removing her from the job she refused to do, though, the Commission merely said she was “casting doubt on her capacity to act impartially” and that she could be punished in the future.
Hensley responded by suing the Commission because how dare anyone point out her Christian bigotry.
In its lawsuit, First Liberty argues, “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.” Adding, “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.”
No “compelling justification”?! The compelling justification was that people deserve to be treated equally under the law. A judge who offered to perform wedding ceremonies for straight couples but not gay ones had no business being a judge. Being Christian shouldn’t allow government officials to ignore the law. It wasn’t okay when Kim Davis tried the stunt, and it shouldn’t have been okay with Hensley.
And “substantially burdened”?! In no way did the Commission impede on her rights.
She was asking for $10,000 in damages because that was the money she was losing by not being allowed to perform opposite-sex weddings. (Not performing any weddings was the only legal option she had at that point.) She also requested a declaration that everyone in her position could pull the same stunt if their God commanded it.
In 2021, a judge tossed out her case on technicalities, including the fact that the commission had sovereign immunity from such lawsuits. An appeals court later affirmed that ruling. But Hensley asked the state’s highest court to take up the case, and that’s what they did in 2023.
Her lawyer, Jonathan Mitchell—better known as the former state solicitor general behind Texas’ infamous abortion “bounty” law—argued that she had every right to discriminate on the basis of sexual orientation:
Mitchell further argued that state law protects people’s religious freedom unless there is a “furtherance of a compelling governmental interest.” He also said it prohibits wedding officiants from discriminating based on race, national origin or religion.
“Notably absent from that list of protected criteria that I just mentioned is any mention of discrimination on account of sex or sexual orientation,” Mitchell told justices. “It’s still permissible for wedding officiants — whether they’re judges or members of the clergy — to discriminate based on any other characteristic, as long as it’s not race, national origin or religion, when they decide which weddings they will officiate.”
Being a Christian, you see, allowed Hensley to be an anti-LGBTQ bigot, just not a racist one… even though both involve characteristics that people don’t choose for themselves.
The thing is: Hensley could have avoided this entire situation if she simply opted out of performing marriages and didn’t whine about it. No one was forcing her to perform that service. But she wanted the ability to get paid to sign marriage certificates for straight couples and not gay ones, and she believed her religion took priority over the law, even though she was working for the government. If we allow officials like her to pick and choose which rules to follow, it would throw the government into chaos. It would make a mockery out of civil rights.
As the commission’s lawyer explained, no one was punishing, or even threatening to punish, Hensley for her religious views. It was all about her actions. If a Christian judge made it clear that he didn’t want to perform any marriages because of his anti-gay bigotry, that would be just fine. Hensley, however, wanted to offer the service while excluding certain people. That was the problem.
(Side note: In an interview with The Dallas Morning News in late 2023, Hensley said she hadn’t performed any marriages in years. She also claimed, falsely, that children with opposite-sex parents fare better in life. Then there was this anecdote about her now-deceased gay (!) brother:
After he had a falling out with their parents over what she described as “economics,” Hensley said she hired a detective to track him down once a year and take a photograph as a gift for their mother. One year, he was in Paris. Another year in Japan. Then Dubai.
Creepy.)
In any case, if Hensley wanted to get ordained and perform private wedding ceremonies just for straight, white, evangelical couples, no one would be complaining. But she had no business discriminating against certain Texans when she was working for the government.
Her lawyers argued that the U.S. Supreme Court already sided with a Colorado website designer who refused to make wedding websites for gay couples (something no gay person actually asked her to do). But there was an obvious difference between a private business owner and a government official. Her own attorneys chose not to understand that difference.
The concern over what the Texas Supreme Court would do was very real. After all, if she won, what would stop other judges from using religion as an excuse to deny justice to other potential clients?
But the case never really got resolved after that.
The Texas Supreme Court avoided her religious freedom argument, then the Texas Commission on Judicial Conduct dismissed its (already mild) sanctions on Hensley, then an appeals court said she could still proceed with her lawsuit… it was a hot mess with no end in sight. And while all that was happening, another bigoted Christian judge filed his own lawsuit for the same underlying reasons.
At some point, the Texas Supreme Court was going to have to make a decision.
Last year, they did just that. They issued an edict saying it was perfectly fine for judges to refuse to perform same-sex weddings if that conflicted with their personal religious beliefs. More importantly, that act of open bigotry wouldn’t be treated as evidence that those judges have any animosity against LGBTQ people.
How did they make the change? The Court altered the state’s judicial conduct code—the ethics rules for judges—by saying “It is not a violation of these canons for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.”
Canon 4, by the way, is a set of rules dictating how judges should act in their free time so that people have no reason to doubt their impartiality in cases. It includes common sense items like how judges can join non-profit groups but not if those groups are likely to appear before the court. But now, all eight justices said, another item could be added to that list: There was no violation of the ethical rules if judges refused to perform weddings because their religion says those couples are sinning.
It wasn’t a ruling on her case. It was just a coincidental rule change… that gave Hensley everything she ever wanted. It also raised a number of other ethical questions. For example, couldn’t that same edict be used to allow judges to avoid ethical consequences if they refused to perform wedding ceremonies for mixed-race couples, or mixed-religion couples, as long as their bigotry stemmed from their faith? What about people who had sex before marriage if pre-marital abstinence was a principle of their religion?
And even if the ethical code for judges now permitted faith-based bigotry, it didn’t change the law itself. Which meant that if a gay couple went to a Texas court to get married, and a judge refused to sign off on it because of his or her faith, the gay couple could still file a lawsuit against that judge.
The entire situation left gay couples in Texas in a bind. On paper, they were free to get married if they chose to. But the state’s highest court now said judges who didn’t want to perform the ceremony and sign the necessary documents were free to do so.
It was state-sanctioned discrimination.
In any case, Hensley has already moved on to the profit stage of this particular grift.
On Friday, the District Court of Travis County announced that Hensley would receive the $10,000 in damages along with $630,000 in legal fees, paid by the State Commission on Judicial Conduct. (No wonder her lawyers with First Liberty are celebrating.) Meanwhile, other similar cases are still moving through the courts because plenty of other right-wing judges also want to get rich off of their hate.
“Although the Hensley litigation has concluded, the Commission is still facing a statewide class-action lawsuit on behalf of justices of the peace who were unwilling to perform same-sex marriages and stopped performing weddings entirely to avoid disciplinary action from the Commission,” First Liberty Institute added. “The class action is seeking damages in the tens of millions of dollars for income lost by justices of the peace throughout the state.”
Yes, why won’t anyone think about the poor justices of the peace who refuse to follow the law and can’t perform their side hustle…?
Naturally, her team thanked Texas Attorney General Ken Paxton (now a scandal-prone candidate for U.S. Senate) for his guidance:
“Judge Hensley always adhered to the law and the legal guidance provided by the Attorney General of Texas,” said Hiram Sasser, Executive General Counsel for First Liberty Institute. “We are grateful that this case has concluded and that Judge Hensley was vindicated.”
Hensley’s “victory” here amounts to a declaration that prejudice is perfectly compatible with public service as long as you’re Christian. Instead of standing for equality under the law, people like Hensley have decided religion—and realistically, only their religion—supersedes the rules everyone else has to follow. All so that they can further discriminate against people who are already struggling to protect their rights across the state.
Hensley, by the way, filed a separate federal lawsuit last December urging the Supreme Court to overturn Obergefell. I guess she figures she’s on a roll when it comes to harming gay couples, so she may as well keep going.
(Portions of this article were published earlier)
Let an atheist justice of the peace refuse to marry an xtian couple and see what happens THEN.
Right wing government and conservative religion are natural allies. It is a symbiotic relationship that has dealt humanity nothing but grief. Evangelical Christians, it seems, have more rights than anyone else, and public officials falling under that heading are free to ignore their oaths of office when it suits their religious ends. The last thing this woman is, is a victim.