In her Petition to this court, Judge Hensley explains that she “is a Christian and her Christian faith forbids her from officiating at any same-sex marriage.” She goes on to explain that it is her sincerely held religious belief that a marriage should only be between one man and one woman. Her lawsuit provides that the sanction violated her religious rights under TRFRA by substantially burdening her exercise of religion. Judge Hensley is seeking declaratory and injunctive relief and compensatory damages. She argues that the lower court’s dismissal was improper because the remedy she seeks is prospective and, therefore, not available to her through any statutory remedy.

Judge Hensley cites the June 26, 2015 Supreme Court (SCOTUS) decision in Obergefell v Hodges, 576 U.S. 644 (2015) as a primary cause of her peril. In Obergefell, the SCOTUS announced a new fundamental right to marry, conspicuously advancing the Court’s preferred social policy, at the time, which was an endorsement of same-sex marriages. Based on the ruling and its ramifications to government employees, Judge Hensley officiated the four weddings previously scheduled to be conducted by her, and, thereafter, stopped booking weddings out of concern she would be compelled to facilitate the Court’s expanded definition of marriage in contravene to her deeply held religious beliefs.

Just over one year later, in August 2016, Judge Hensley realized there was a need for low-cost wedding officiants and resumed officiating weddings between one man and one woman. If a same-sex couple requested her services, she recused but referred the same-sex couple to an officiant who was willing to perform the requested services.

In May 2018, the Commission launched a formal inquiry into Judge Hensley’s sincerely held religious beliefs. In November 2019, after a widely publicized investigation and formal hearing, the Commission sanctioned her with a Public Warning, arguing that Judge Hensley’s recusals from officiating same-sex marriages “cast doubt on her capacity to act impartially…in violation of Rule 4A(1) of the Texas Code of Judicial Conduct.” In response, Judge Hensley filed suit against the Commission for TRFRA violations.

In its brief, the Commission argues the dismissal was proper because “Texas courts have no jurisdiction over her claims…it was her own fault since she did not send the requisite notice to assert TRFRA claims in the Commission proceeding.” Remarkably, the Commission undercuts its own legal argument when it adds, mockingly, “She could have fully litigated her TRFRA rights unsuccessfully at the Commission.”  It is clear the Commission would not impartially consider any claim made by her under TRFRA, no matter the facts or argument. It also demonstrates an intention to unlawfully divest Judge Hensley of her due process rights by determining the outcome of a proceeding without ever conducting one.  This fact pattern is illustrative of the adage, “but who will oversee the overseers?” This Commission may need to be repurposed or restocked.

We, at America’s Future, urge the Texas Supreme Court to reverse the lower court’s dismissal, enter a summary judgment order in favor of Judge Hensley, and provide for declaratory and injunctive relief with compensatory damages as the full and final remedy.