By Rebecca Schneid, The Texas Tribune
“Texas judge who doesn’t want to perform gay marriage ceremonies hopes web designer’s Supreme Court case helps her fight” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.
Since Waco judge Dianne Hensley received a public warning from the State Commission on Judicial Conduct for refusing to perform same-sex marriages in 2019, she’s waged a public battle against the state agency.
She’s long claimed the governmental body violated state law by punishing her for actions taken in accordance with her religious faith. Now, she has submitted a brief arguing that the recent Supreme Court ruling in favor of a business owner who refused services to same-sex couples will help her case.
After Hensley was warned by the judicial conduct commission, she filed a lawsuit claiming the investigation and warning “substantially burdened the free exercise of her religion, with no compelling justification.” She seeks damages of $10,000. She has been represented by the First Liberty Institute, a high-profile religious liberty legal group based in Plano. The legal group also has strong ties to suspended Texas Attorney General Ken Paxton.
Her lawsuit alleges that the commission violated her rights under the Texas Religious Freedom Restoration Act. Her lawsuit was dismissed by a lower appeals tribunal, but last month, the Texas Supreme Court said it will hear arguments on whether to revive the state judge’s lawsuit.
This new brief, submitted last week by Hensley’s legal team, argues that though the Supreme Court used the First Amendment and not state law in the 303 Creative LLC v. Elenis case, the decision is also applicable in her lawsuit. The First Amendment case decided last month said a Colorado web designer cannot be forced by the state to compromise her beliefs and serve same-sex couples.
“303 Creative was interpreting the First Amendment’s Speech Clause rather than the Texas Religious Freedom Restoration Act. Its holding is nonetheless instructive because it rejects the idea of a ‘compelling interest’ in forcing wedding vendors to participate in same-sex and opposite-sex marriage ceremonies on equal terms,” the brief states.
Neither Hensley nor her legal team at First Liberty Institute were available for comment Wednesday.
According to the Texas judicial commission’s 2019 warning, Hensley referred gay couples who wanted her to preside over their marriage ceremony to other people who would officiate. The state’s judicial code requires judges to conduct “extra-judicial activities” in ways that don’t cast doubt on their impartiality on the bench. The commission issued a public warning, saying she cast doubt “on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”
According to Dale Carpenter, chair of constitutional law at Southern Methodist University’s Dedman School of Law, the U.S. Supreme Court case has little to do with Hensley’s case, since one is dealing with private businesses, and Hensley is a government official acting in an official capacity. Carpenter has written extensively on the Colorado case and agreed with the 6-3 Supreme Court decision. He says the two cases are similar in that they include services to a same-sex couple, but “that’s where the similarities end.”
“The service in [Henley’s] case is the service of a government official, so if 303 Creative had involved that government denying services to a same-sex couple, then that’d be a very different case,” Carpenter maintained. “I don’t think 303 helps the judge’s case at all.”
He believes this is the first of a “slew” of cases that will be coming through the state and country that will attempt to expand the reach of the Colorado case and when LGBTQ+ people can be denied certain services on First Amendment grounds.
“This is going to have to be worked through the judicial system, including trial courts and appellate courts, over a period of probably several years at this point because 303 Creative is going to lead us to see many, many more of these cases,” Carpenter said.
Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, says it’s also important to understand that if the Texas Supreme Court were to rule in Hensley’s favor, they “would have to expressly extend the holding of 303 Creative” to her case. This means that Hensley’s case goes beyond the current bounds of what the SCOTUS decision says.
Johnathan Gooch, a spokesperson for Equality Texas and a University of Texas at Austin School of Law graduate reiterated Carpenter’s points on the differences between the two cases, and pointed to Hensley’s position as a purveyor of the law.
“The law of the land is marriage equality. It’s as simple as that,” Gooch said. “If judges and justices of the peace were empowered to only enforce the laws that they agreed with, we would quickly descend into anarchy.”
Carpenter says the implications of Hensley’s case are hard to predict, since the Texas Supreme Court has agreed to hear arguments only on whether to revive the lawsuit, not if the lawsuit has merit. He believes it will be a long time before Hensley’s lawsuit has real effects.
Conversely, Ash Hall, an ACLU of Texas policy and advocacy strategist, believes that the case could be substantial, if the lawsuit is eventually won.
“If Judge Hensley were to actually win this case, it would basically gut a good portion of marriage equality that we got,” Hall said. “Your ability to get married then would be dependent on your ZIP code and kind of what resources were around you.”
LGBTQ+ activists aren’t surprised by Hensley’s attempt to use the SCOTUS case in her favor. Some say a continual onslaught of anti-LGBTQ+ bills passed in the Texas Legislature have left them numb.
“I have nothing to say anymore,” said Verniss McFarland, founder and executive director of the Mahogany Project, which advocates for LGBTQ+ communities of color. “As a Black trans femme person, we are already on the margins. When something like this happens, it’s just like: ‘Oh, this again.’”
Hall says that the ACLU was not surprised by Hensley trying to use the 303 Creative case. They said once the SCOTUS decision was passed down, they all bolstered themselves, preparing for the lawsuits that they knew were on the way.
“Traditionally, that is what has happened: When the courts have ruled in a way that gives people an option to refuse service or discriminate against other people, you get a whole bunch of court cases pertaining to that to see how far they can take it,” Hall said. “It’s not surprising, just disappointing.”
Disclosure: Equality Texas, Southern Methodist University and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
Join us for conversations that matter with newly announced speakers at the 2023 Texas Tribune Festival, in downtown Austin from Sept. 21-23.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/07/12/texas-judge-gay-weddings-supreme-court/.
The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.