McLennan County Justice of the Peace Dianne Hensley’s lawsuit against the state agency that sanctioned her last year for refusing to perform same-sex weddings will be heard in Travis County, a judge ruled Thursday.
Judge Jim Meyer of Waco’s 170th State District Court granted a motion from the Austin-based State Commission on Judicial Conduct to move Hensley’s lawsuit from Waco to Austin.
Both sides presented the judge with differing interpretations of prior court rulings pertaining to venue, with each side essentially arguing that “all or a substantial part of the events or omissions” giving rise to Hensley’s claims occurred either in McLennan or Travis county.
Hensley, a justice of the peace for five 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,” is backed by the First Liberty Institute, a high-profile religious liberty law firm based in Plano. She declined comment after the hearing Thursday, referring questions to her attorneys.
One of her attorneys, Jeremy Dys, said that while they are disappointed in Meyer’s decision, they are eager to take the case “down to Travis County and have that court review Dianne’s case.”
“We obviously think venue was proper, which was why we chose to file the lawsuit in McLennan County,” Dys said. “But ultimately, we think it will come down to the Supreme Court ruling on this issue at some point. We just want to make sure Dianne has the ability to continue this rather creative solution of hers to serve her county while also upholding her religious convictions.”
Hensley argued in her opposition to the sanctions 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.
While most local JPs still do not perform weddings, Hensley chose to resume performing ceremonies, but only for heterosexual couples. She said her office politely declines because of her religious beliefs but refers those couples to Justice of the Peace David Pareya, of West, or others in the county who will officiate their weddings. Court records show she has performed 415 weddings for opposite-sex couples since August 2016.
Her attorneys argued Thursday that McLennan County would be the proper venue for the lawsuit because Hensley’s office, the weddings she performs and the decisions she made resulting in the sanction all happened in McLennan County.
Mike McKetta, of Austin, and David Schleicher, of Waco, who represent the commission, argued the suit should be moved to Travis County because the Judicial Conduct commissioners named in the lawsuit in their official capacities are residents of Travis County, the commission itself is headquartered in Austin and the investigation of Hensley happened in Travis County.
McKetta and Schleicher declined comment after the hearing.
Hensley’s lawsuit seeks $10,000 in damages, including lost income when she stopped performing all weddings in response to the commission’s investigation and punishment. She also is seeking a declaratory judgment that the commission and its members violated her religious rights and is applying for class-action status to allow any justice of the peace so inclined the freedom to recuse himself or herself from officiating at same-sex weddings while continuing at others.
In defense of the lawsuit, the commission has charged that Hensley had other options besides filing suit if she disagreed with the commission’s findings. The commission claims Hensley has no right to ask the court to attack the findings of the commission because she failed to follow established procedures to appeal the findings.
“Second, she is an unusually inappropriate person to sponsor herself as a class representative to litigate on behalf of others, in light of her acceptance without review of a public warning that her conduct violated a judicial canon,” the commission contends.
Meyer considered only the issue of venue at Thursday’s hearing.
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