A Texas judge said she will not drop her lawsuit against a state commission that publicly sanctioned her for refusing to officiate at same-sex weddings, even though the commission withdrew its ethics warning last month.
Judge Dianne Hensley, an elected Texas justice of the peace who hears small claims and misdemeanor cases, said in a filing in an appeals court in Austin last week that the about-face by the State Commission on Judicial Conduct does not undermine her case.
Hensley is suing the commission for allegedly violating her religious rights as a Christian. The lawsuit seeks an order barring future sanctions, but does not ask the court to overturn the public warning. The Texas Supreme Court in June revived Hensley’s lawsuit.
The judicial commission’s Sept. 9 statement withdrawing its warning “does not acknowledge that judges and justices of the peace in Texas may lawfully choose to officiate only at opposite-sex weddings without fear of discipline,” Hensley’s lawyer, Jonathan Mitchell, said in the new court filing.
Mitchell declined to comment. A lawyer for the judicial commission, Douglas Lang, on Monday said it was opposed to the continuation of Hensley’s lawsuit.
Hensley did not immediately respond to a request for comment. She has denied violating judicial conduct rules.
Hensley, a Waco-based judge since 2015, is among about 800 justices of the peace in Texas. They can officiate at weddings for free or for a fee but are not required to do so.
The judicial commission said in its warning that Hensley’s conduct cast doubt “on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”
A trial judge dismissed Henley’s lawsuit because she had not first appealed the commission’s warning. An appeals court later upheld the dismissal, but the state high court said Hensley could pursue her religious rights claims.
After gaining new members, the judicial conduct commission last month withdrew the 2019 warning and dismissed its complaint against Hensley after reviewing the facts and the Texas Supreme Court’s ruling.
Mitchell told the Texas Third Court of Appeals that the commission’s action “does not remove the threatened enforcement that Judge Hensley is suing over.”
Mitchell’s filing said the commission believed the withdrawal of the public warning should void Hensley’s lawsuit. The commission will ask the appeals court to weigh that issue, the filing said.
A lawyer for the commission has said Hensley’s lawsuit is seeking a “license to discriminate.
