Texas judge says Supreme Court ruling means she doesn’t have to officiate same-sex weddings

A Texas judge who doesn’t want to officiate marriages for same-sex couples has filed a brief saying that the Supreme Court’s decision in 303 Creative LLC vs. Elenis – the case about the Christian web designer who doesn’t want to make wedding websites for same-sex couples – means that she was illegally punished for refusing to officiate same-sex couples’ weddings.

Ever since marriage equality was legalized in the state of Texas following the Supreme Court’s Obergefell v. Hodges decision in 2015, McLennan County Justice of the Peace Dianne Hensley (R) has refused to officiate same-sex couples’ marriages.

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He’s not enforcing the law because he believes “religious liberty” means judges don’t have to do their jobs.

Since 2016, she has given same-sex couples who approached her to officiate their marriage a statement: “I’m sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same-sex weddings.”

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“So I’m entitled to accommodations just as much as anyone else,” she told the Waco Tribune in 2017. Justices of the peace in Texas don’t have to officiate weddings at all, but Hensley wants to be allowed to officiate only opposite-sex marriages, and she performed 70 such weddings from 2016 to 2019.

In 2019, Hensley was sanctioned by the Texas Commission on Judicial Conduct, receiving an official letter of warning. She was told she violated state rules about judicial impartiality because her refusal to treat LGBTQ+ people equally cast “doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.” State code requires that judges’ “extra-judicial activities” be conducted in a way that doesn’t lend itself to accusations of bias.

She filed a lawsuit against the commission with help from the First Liberty Institute, a Texas-based anti-LGBTQ+ legal organization. And this past week her lawyers filed a new brief in that case, saying that the 303 Creative decision – which said that some creative professionals have a free speech right to refuse service in some cases – means that she has a constitutional right to only officiate opposite-sex weddings.

“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 says, describing Hensley as a “wedding vendor” instead of a public official.

Southern Methodist University law professor Dale Carpenter told the Texas Tribune that 303 Creative was about a private business and not a government official, so it doesn’t have much to do with Hensley’s case.

“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, who agreed with the Supreme Court’s 303 Creative decision, said. “I don’t think 303 helps the judge’s case at all.”

But Carpenter said that there will be a “slew” of cases testing the limits of 303 Creative in attempts to deny LGBTQ+ people services in all sorts of areas.

“The law of the land is marriage equality. It’s as simple as that,” said Johnathan Gooch of the LGBTQ+ organization Equality Texas. “If judges and justices of the peace were empowered to only enforce the laws that they agreed with, we would quickly descend into anarchy.”