Words on justices, officiating incorrect

The claim: “I shouldn’t have to give up my career — make a choice, either give up your career or violate your religious beliefs. The government shouldn’t put me in that position.” — Fort Worth talk radio host Chris Salcedo.

Salcedo made the remark in reference to a Waco justice of the peace who was sanctioned by a state commission earlier this month for only officiating opposite sex, but not same-sex, marriages.

PolitiFact ruling: False. Justices of the peace are not required to officiate marriages and do so mainly for their own benefit, not as an integral duty of the job. Many justices of the peace in Texas have opted to not perform any marriages because of their religious beliefs regarding gay marriage.

Discussion: Salcedo made the claim during an interview with Texas Attorney General Ken Paxton as they discussed the case of a Waco justice of the peace who was sanctioned by a state commission in December for only officiating opposite sex, but not same-sex, marriages.

The State Commission on Judicial Conduct issued Justice of the Peace Dianne Hensley a

public warning over her refusal to perform same-sex ceremonies; the commission could take further action if she refuses to stop the practice.

Paxton, a Republican, reiterated the stance of his office, one that has not changed since just after the 2015 Supreme Court decision legalizing gay marriage. He said people are entitled to religious exemptions when it would violate their faith to carry out the duties of their job.

But Salcedo’s description of Hensley’s situation is inaccurate. No one is asking Hensley to violate her religious beliefs to keep her career: Officiating marriages is an optional activity. A state commission’s opinion on the matter suggested she could officiate all marriages or no marriages, but not selectively choose one type.

Justices of the peace handle low-level civil and criminal cases, including traffic and other Class C misdemeanor cases and civil cases involving up to $10,000.

They can also officiate marriages, but this is considered “extra-judicial,” an optional activity that earns them thousands per year in personal income.

So while there may be some financial incentive to do it, it is by no means required.

In fact, some justices of the peace in Texas have chosen not to officiate any marriages in order to avoid the religious dilemma, including in McLennan County, where Hensley lives.

The commission decided to investigate Hensley based at least in part on a Waco HeraldTribune article in which she was quoted about her decision to decline same-sex marriages and how she believed she was entitled to a religious accommodation.

It found that she had refused to perform same-sex marriages since 2016, instead only performing opposite-sex marriages and referring same-sex couples to other officiating JPs and clergy.

The state commission that sanctioned Hensley said her actions cast “doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”

Now, Hensley can appeal the sanction, start performing same-sex marriages or stop performing marriages altogether.

Hensley has argued that she is entitled to a “religious exemption,” but there is no law or legal precedent in Texas establishing such an exemption for a justice of the peace in this context.

This question varies by state, depending on whether the state’s Supreme Court has taken up a case and established a precedent.

Two legal opinions on the subject that have been issued by state agencies — a 2015 opinion from the attorney general’s office and the Judicial Commission sanction — are nonbinding.

In a 2015 opinion filed after the U.S. Supreme Court case on same-sex marriage, Paxton supported people’s right to assert a religious exemption under the First Amendment, though he noted that fines and litigation were possible.

The recent Judicial Commission opinion punished Hensley for giving off the appearance of bias, seeming to indicate an exemption would not be possible.

But Douglas Laycock, a law professor at the University of Texas, said neither document is legally binding.

“The basic answer is we don’t know yet,” Laycock said. “This may well wind up in the courts.”

Some states, such as North Carolina, have passed laws on this subject, but Texas has not.

The North Carolina law allows some officials, similar to a justice of the peace, to decline to administer any marriages if they have a “sincerely held religious objection” to same-sex marriage, but they may not be selective and only marry oppositesex couples.

People in other government positions, like county clerks who issue marriage licenses, have less flexibility, as issuing marriage licenses can be part of their job description.

For more on the research and the conclusion, visit Politifact Texas, www.politifact.com/texas/