A Texas judge doesn’t want to marry gay couples. The Supreme Court will soon hear her case

By Lauren McGaughy

WACO — Dianne Hensley felt guilty.

Sitting behind her desk at the county courthouse in Waco, she could hear someone crying outside her office door. The young woman wanted to get married, Hensley recalled, but she couldn’t find anyone to do the ceremony.

It was 2016, the year after the U.S. Supreme Court toppled bans on same-sex marriage in Texas and other states across the country. Justices of the peace in Texas are allowed to conduct weddings. Told they now must marry all couples or none, the justices of the peace at the courthouse in McLennan County, including Hensley, chose the latter.

The crying woman helped Hensley make a decision. She called a lawyer to see if she could start performing marriages again — but only for opposite-sex couples. As a Christian, she thought she had a case supported by the state’s religious freedom law.

Seven years later, Hensley’s lawsuit is set to be heard this week by the Texas Supreme Court.

She lost at the appeals court level. The justices are giving her one last shot to revive her case. While its aim is narrow, her lawsuit is one of several in Texas and across the country that could whittle away at the rights gay people have won in recent years.

Hensley, 72, sat down with The Dallas Morning News on Oct. 17 for her first extensive interview in years. She’s speaking now because her case, she said, is coming to “crescendo.”

“I would prefer not to be caricatured,” she said. “I figure I have to talk to you to keep that from happening.”

A Texas judge doesn’t want to marry gay couples. The Supreme Court will soon hear her case

Hensley’s case could determine whether local officials in Texas are beholden to the federal court’s ruling upholding the rights of same-sex marriage.

Hensley’s lawyers include Jonathan Mitchell, the former state solicitor general who wrote the Texas law that allows citizens to file a lawsuit against anyone who knowingly “aids or abets” an abortion. Her lawyers argue the judge should be able to cite her faith to refuse to wed gay couples if an alternative officiant is offered.

Playing defense is the State Commission on Judicial Conduct, which Hensley sued after it disciplined her for turning away gay couples. The agency’s lawyers haven’t approached the lawsuit as a gay rights case. To them, it’s a fight for fairness and impartiality, for the rules that allow the public to trust that judges will treat everyone equally.

In the few years Hensley was performing marriages for straight people only, she estimated she turned away about a dozen same-sex couples. She said she never got a complaint.

“We can’t be responsible for what everybody feels,” she said. “You’re only responsible for your conduct. There have been many situations in my life when I didn’t feel overly welcomed or endorsed or whatever. I’m an adult. That’s just how life is. Everybody’s not going to love you.”

Inside the courthouse

The McLennan County Courthouse has a distinct mid-century feel. The justice of the peace courtroom is flanked by wooden chairs from decades ago, and the rotunda’s murals date to 1969.

In one, a hanging tree is depicted. A display with a county resolution condemning lynching was added in 2011.

Hensley’s office has been at least partially renovated after repeated flooding from the first-floor bathrooms. A small cross adorns one wall. The opposite wall features pictures of her children and 16 grandchildren and great-grandchildren.

The small room’s most imposing feature is a bookcase that holds dozens of inquest books. With no county medical examiner, Hensley said much of her time is spent chronicling local deaths. She has averaged 200 deaths a year, 70% of which occur at night.

It’s been years since Hensley performed a wedding ceremony. She said she’s left the details of her lawsuit to her attorneys.

“I’ve been trying to pretend it wasn’t there and just engaging periodically when it was necessary,” she said. “I would love to win, because I think it’s right. My life’s not gonna change one way or the other.”

After the Supreme Court ruling that legalized same-sex marriage, justices of the peace in Texas were told if they chose to officiate weddings; they could not turn away couples due to their sexuality.

For the first year, Hensley stopped performing weddings altogether. In 2016, she instituted a new policy: Gay couples seeking marriages were told the judge could not marry them due to her faith and were offered a list of alternative referrals. One officiant was a few blocks down the street, another was the justice of the peace in West, 25 miles away.

In less than a year, Hensley conducted about 70 courthouse marriages for straight couples, according to the Waco Herald-Tribune. Her fee was $100.

After she spoke with the local paper about her weddings policy in 2017, the State Commission on Judicial Conduct launched an inquiry. In November 2019, after a hearing, it issued a public warning that said Hensley’s conduct cast doubt on her capacity to act impartially when it came to someone’s sexuality.

Hensley stopped performing weddings and sued the commission. She cited the Texas Religious Freedom Restoration Act, a state law that says a government agency can’t “substantially burden a person’s free exercise of religion” unless it “is in furtherance of a compelling governmental interest.”

After her case was moved from McLennan to Travis County, it was dismissed for multiple reasons that included sovereign immunity (the concept that the government is protected from lawsuits) and that she did not properly challenge the state commission’s warning at the agency level. An appeals court upheld the decision last year.

Oral arguments at the Texas Supreme Court are set for Oct. 25. Hensley said she’ll be there.

After so many years waiting, she said, “it almost feels anticlimactic.”

Hensley is represented by First Liberty Institute, a Plano-based Christian nonprofit that handles religious liberty cases, and Mitchell, whose anti-abortion legal advocacy has made him the target of ire and praise. He is handling several cases that involve LGBTQ rights.

Hiram Sasser, one of Hensley’s First Liberty lawyers, said the organization was approached by a hundred people who wanted to sue after the gay marriage ruling. They chose Hensley because they believed she found a way to balance two things: the law and humanity.

“How do you treat your neighbor as yourself and follow your faith simultaneously?” said Sasser, who was present for Hensley’s interview with The News. “The thing that hit me was that if you were a same-sex couple and you arrived at her office, you ultimately received the same level of service in terms of timeliness and costs.”

‘A relationship with the Lord’

Growing up in North Dallas, Hensley wasn’t religious. She said she didn’t form a relationship with God until well into adulthood.

Her husband, Clayton, had two children from another marriage when they wed. The oldest was a handful, she said. After the boy spent a summer at a Christian camp his aunt chose, however, she said he was changed. That shifted Hensley’s approach to her children and her life.

“OK, we need religion. I’m going to go get some religion,” she recalled thinking. The family started going to a nondenominational Christian church in Kingwood. “That’s when I really developed a relationship with the Lord, and I found things that had troubled me for years suddenly made sense.”

Since then, her beliefs have shaped her political leanings. As a representative for Concerned Women for America as far back as the mid-1990s, she opposed federal education funding she said was part of an effort to subvert local control and undermine abstinence-only education.

She ran for Texas House in 1996 and again in 2000, challenging fellow Republican Dennis Bonnen from the right. She failed both times, and Bonnen went on to serve as House speaker before announcing his retirement amid scandal in 2019.

In 2005, Hensley came to the Capitol to testify in favor of changing the Texas Constitution to define marriage as between one man and one woman. She said she still agrees with a statement she made at the time that “children reared in families with a mother and a father are significantly better off than children reared in any other family configuration.”

“I think the proportion of people who have later problems in life coming out of there is probably still higher. My father was a psychiatrist and a lot of what I would have referenced there will be things that he talked about in his experience with patients,” Hensley told The News.

A recent analysis of years of studies published in BMJ Global Health shows children raised by LGBTQ parents fare as well as those raised by opposite sex parents.

Hensley, who is not a lawyer, has worked as a land manager for an oil company, a political campaign manager and a Curves fitness owner. She and her family moved to Waco when she took a job with an abstinence group.

When asked about how her faith informs her opposition to same-sex marriage, she said: “My experience is, the closer I follow the Scriptures, the better my life goes. And this is pretty foundational. And I’m not going to get into it, but as an abstinence speaker, I dealt a whole lot with the sequelae of same-sex relationships.”

She described “sequelae” as, “The medical after-effects of what you’ve done. So, you have wide — much greater issues, medically.” Asked to clarify once more, she said she believes gay people experience “a higher incidence of STDs.”

In 2014, the local Republican Party passed over two incumbents to choose Hensley as their nominee for justice of the peace after redistricting eliminated one seat. She was unopposed in her reelection last year.

Hensley said she has never asked anyone their belief system in deciding whether to marry them. But if a justice of the peace has a sincere religious conviction that they cannot wed a couple of a different faith, they should be able to refer them elsewhere, she said.

“If you are a person of faith, I would think you would want to be married by somebody who supported that, because to me, marriage is an institution ordained by God so you would want it to be blessed by your faith tradition,” she said.

Hensley said her older brother, who died of ALS, was gay.

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.

When he came back home to Dallas, where they grew up, Hensley said she facilitated his reconnection with their parents.

The siblings never discussed his sexuality, but she knew he was gay “from the company he kept,” Hensley said. She became close with some of her brother’s friends, including a man named Michael, before her brother’s death.

“When Michael got married, he did not call me to [perform the marriage] because he respected my faith,” Hensley said. “I think that’s how most people are. Most people just want to live and let live.”

After the interview, Hensley’s lawyer sent a statement on behalf of the judge that added the following: “I loved my brother deeply and I still care about his friends and the entire community. I really just want the best possible life for everyone and the best possible outcomes.”

The judge’s conduct

Texas Attorney General Ken Paxton, a Republican, has sided with Hensley and declined to defend the commission.

Douglas Lang, one of the private lawyers hired to represent the state in Paxton’s stead, said the judge’s conduct — not her faith — is the problem.

“The public warning [the commission gave Hensley] is not about her religious beliefs, nor does it require her to conduct ceremonies to marry anyone,” Lang said in a statement. It “is about her conduct that demonstrates her bias against certain citizens of the State of Texas.”

At the core of the commission’s argument is that members of the public must be able to believe they have equal access to justice. Inherent in the government’s argument is the idea of the slippery slope: If the assurance of impartiality is waived in this instance, what comes next?

“The Commission will stand up and argue for the preservation of the compelling interest to assure judges’ impartiality and support Texas citizens’ trust in the impartiality of the judiciary,” Lang said.

In their brief to the state Supreme Court, the commission’s lawyers argued nothing is keeping Hensley from doing exactly what she was doing — performing marriages for straight couples only — if she got ordained and performed those ceremonies privately and not as a government official.

Hensley told The News she did not consider that a solution. “I didn’t set out in life to do weddings,” she said, adding that performing them became “more overwhelming than it got to be joyful for me. I can’t say that I have missed it in any sense.”

In her pleadings, the judge argued not being able to perform weddings, for a small fee, hurt her financially. She is asking for $10,000 in damages and an assurance she will not be investigated or penalized if she performs marriages for opposite-sex couples only.

In a brief submitted earlier this year, her lawyers pointed to a recent U.S. Supreme Court decision siding with a website creator who wanted to turn away gay clients. The lawyers argued that the decision lends credence to Hensley’s case.

Dale Carpenter, the constitutional law chair at the SMU Dedman School of Law, said the website case does not add anything substantive to Hensley’s arguments.

But if the Texas Supreme Court revives her case, he said it might be a significant win for religious exemption claimants, depending on what the decision says. It could encourage other carve-outs into LGBTQ rights at the local level in Texas.

“It would be unprecedented for the court to declare that judges marrying people in courthouses have the power to shut the courthouse doors to same-sex couples wanting the official duties of judges that is allowed only by Texas state law,” Carpenter said. “That endangers the appearance of impartiality that legal ethics principles have long required.”

‘Dead silence’

LGBTQ organizations have not joined the fray.

That’s because they are in triage mode, said Equality Texas CEO Ricardo Martinez. This year, the state Legislature passed several major laws that target LGBTQ, and especially transgender, rights. State and national organizations like his, the ACLU and Lambda Legal are battling new restrictions on drag shows and a ban on gender-affirming care for minors.

“We’re fighting to talk about our families in schools, for parents to lead family medical decisions, and to end [state] harassment of loving families,” Martinez told The News. “When small teams like ours, who are on the forefront of this fight, make decisions about where to put our resources — we go to the most immediate threat.”

The Hensley case feels remote even locally, said Alexandra Brock, a board member of Waco Pride.

“I haven’t heard a single thing,” Brock told The News. “Dead silence.”

This story, originally published in The Dallas Morning News, is reprinted as part of a collaborative partnership between The Dallas Morning News and Texas Metro News. The partnership seeks to boost coverage of Dallas’ communities of color, particularly in southern Dallas.