A Travis County judge has thrown out McLennan County Justice of the Peace Dianne Hensley’s lawsuit against the state panel that sanctioned her in 2019 for refusing to perform same-sex weddings.
Judge Jan Soifer of Austin’s 459th State District Court listed a variety of reasons for dismissing the lawsuit. She ruled that the State Commission on Judicial Conduct has sovereign and statutory immunity from the claims and that Hensley failed to exhaust other legal remedies before filing her lawsuit.
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Hensley, a justice of the peace for six years, officiates weddings between men and women but refuses to perform weddings for same-sex couples, saying it goes against her “Bible-believing” Christian conscience. Her lawsuit claims the agency violated state law by punishing her for actions she took in accordance with her religious beliefs.
In issuing its sanction against Hensley — a public warning — the commission said Hensley has refused to perform same-sex weddings since August 2016, despite the U.S. Supreme Court’s decision a year earlier that established constitutional rights to same-sex marriage.
The commission said Hensley is violating the Texas Code of Judicial Conduct by “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”
Hensley, who has said she is entitled to a “religious exemption,” filed her claims under the Texas Religious Freedom Restoration Act under the backing of the First Liberty Institute, a high-profile religious liberty law firm based in Plano.
Hensley has said that she, along with most all of the county’s JPs, stopped performing any weddings on legal advice from the county so as not to appear that those who chose not to perform same-sex weddings were discriminating against same-sex couples.
See here, here, and here for the background. Hensley had sought damages of $10,000 to make up for the money she was unable to make when she was not performing weddings because of her bigoted refusal to do them for same sex couples. Instead, she was ordered to pay court costs, which seems fitting to me.
Chron reporter Taylor Goldenstein, who wrote their story when Hensley filed her suit, has some more detail on this.
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Reasons for dismissal continued (2/2):4) lack of ripeness + “Plaintiff’s request for
impermissible advisory opinions” (Hensley had wanted judgment allowing religious judges to refuse to do gay marriages)
5) res judicata, meaning issue has already been resolved by another court— Taylor Goldenstein (@taygoldenstein) 5:11 PM – 28 June 2021
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Reasons for dismissal continued (2/2):Read Travis Co District Judge Jan Soifer’s decision dismissing JP Dianne Hensley’s suit against a state agency for disciplining her for refusing to officiate same-sex marriages here: https://documentcloud.org/documents/20974273-hensley-order-granting-plea-to-jurisdiction-executed
— Taylor Goldenstein (@taygoldenstein) 5:20 PM – 28 June 2021
I don’t think I was aware of the federal lawsuit or its current status – I did suggest when Hensley sued that this might wind up in federal court – so that’s good to know. I’m certain she will appeal, so this isn’t over, but I suspect the Commission’s immunity from lawsuits will be hard for her to overcome. For now, let’s celebrate a bigot being told “No”.
First, I think this is a reasonable and correct decision. The judge is using her public position, and public facilities to perform marriages on the side for extra cash; she should have to perform that service for all comers who meet the requirements to get married. Either do it for all couples, or don’t do it at all. The court got this right.
Having said that, if you’re gay, WTF would you want someone you know upfront doesn’t agree with your lifestyle to perform the ceremony? ‘ Hey, I really don’t feel comfortable doing your wedding, can I refer you to another judge?’ Take the hint! Find someone else, someone who will “celebrate your love” and all the rest of the claptrap, to perform your wedding. This is why people don’t like activist queers. They purposefully seek out conflict to shove their deviancy in our faces. Why don’t they find a Muslim judge to perform their ceremony? Notice you never hear about that situation happening? Why don’t they seek out a Muslim bakery to bake their cakes? They don’t do that, because they know the Muslims will push back on that. If that Colorado baker that keeps getting harassed by the queers was Muslim, I feel certain we would have seen a few car bombs or chopped heads as a result of that harassment. Christians won’t do that, so they make great targets.
MERIT OR NO MERIT
If there is an appeal of Judge Soifer’s ruling, it should be interesting (at least for appellate nerds).
What we have here is a dismissal on multiple alternative bases, but some of them involve want of jurisdiction (sovereign immunity, ripeness), while at least one ground for dismissal involves an affirmative defense, namely res judicata. A lack of jurisdiction is incompatible with a dismissal (or, more commonly in state court, a summary judgment) based on an affirmative defense, and should preclude a determination of the merits of the claim presented and the merits of any affirmative defense asserted as an independent reason why the plaintiff should not succeed.
Anyhow, if the court of appeals agrees that the trial court lacked jurisdiction based on the defendant’s sovereign immunity or a lack of ripeness (or failure to exhaust administrative remedies), then the court should not even address the alternative ground(s), and could vacate those portions of the trial court order relating to them, or simply affirm the dismissal based on at least on jurisdictional defect. (The trial court order doesn’t say with or without prejudice).
Does it matter? – Yes. If the disposition is for lack of jurisdiction, the court cannot be said to have taken a position for or against the plaintiff and her cause, and won’t decide the underlying issue one way or the other in a precedent-setting opinion on a novel issue. A judge’s refusal to perform same-sex weddings could presumably still be litigated in some other case in which the plaintiff makes fewer errors, or where the procedural posture is different.
Note that in at least one of the serial Hotze COVID-order suits last year, Woodfill also invoked the Religious Freedom Restoration Act and didn’t get it right on the procedural requirements.
For various immunity arguments as they pertain to issues of judicial discipline see Houston COA opinion in Hagstette v. State Commission on Judicial Conduct, No. 01-19-00208-CV (Tex.App.-Houston [1st Dist.] Dec. 15, 2020).
In that case, magistrate judges tried to sue the Commission under the Declaratory Judgments Act, albeit involving a dispute unrelated to same-sex marriage, and were likewise unsuccessful.
“Appellants, the Honorable Eric Hagstette, the Honorable Joseph Licata, III, and the Honorable Jim Wallace (Magistrate Judges) seek a declaratory judgment that the appellees, the State Commission on Judicial Conduct and its individual members[1] (collectively, the Commission) exceeded the scope of their authority in issuing a public admonition against the Magistrate Judges. The Commission filed a plea to the jurisdiction, which the trial court granted. In their sole appellate issue, the Magistrate Judges argue that the trial court had jurisdiction to declare the Commission’s actions void because the Commission and its officials acted beyond their statutory authority. Because we conclude that the Magistrate Judges’ pleadings affirmatively negated the trial court’s subject-matter jurisdiction over the case, we affirm.”
Google Scholar version of opinion by Justice Richard Hightower here:
https://scholar.google.com/scholar_case?case=15477151683139705999
Bill, what Muslim judge has refused to wed gay people?
Typical racist bs from the resident racist of this blog.
“…the queers…”. How quaint. It’s like we’re back in 1958.
#KeepinItClassyBill