Waco, Texas Justice of the Peace Dianne Hensley (screengrab via First Liberty Institute).
The fallout from a Christian web-designer’s victory in the Supreme Court continued as a Texas judge attempted to use the ruling to deny marriage to gay couples.
Dianne Hensley, a justice of the peace in Waco, Texas, refused to perform same-sex marriages in 2019 on the grounds that officiating the ceremonies would conflict with her sincerely-held religious belief as a Christian. Hensley was formally warned by the State Commission on Judicial Conduct that she should recuse herself in such matters if she refused to follow the law.
Hensley responded by suing the commission for burdening her free exercise of religion and asking for $10,000 in damages. After the Supreme Court ruled in favor of Lorrie Smith in late June, Hensley’s lawyer submitted a letter brief that argued his client should prevail just as Smith had.
Hensley’s attorney, Jonathan Mitchell, acknowledged in the letter that the Court’s holding in 303 Creative v. Elenis had been grounded in First Amendment law, but argued that the ruling should still be “instructive,” because it stands for the idea that wedding vendors should not be compelled to participate in “same-sex and opposite-sex marriage ceremonies on equal terms.”
Mitchell did not address the distinction between “wedding vendors” — a phrase typically used to refer to private individuals or business that provide wedding-related services in exchange for payment — and government officials who carry out state functions such as issuing marriage licenses or officiating ceremonies.
Hensley has been represented by the First Liberty Institute, the conservative advocacy group that supported the Evangelical postal worker who refused to deliver packages on Sundays and which has close ties to embattled Texas Attorney General Ken Paxton.
Unlike the web designer’s case — which rested on the idea that creating a custom wedding website amounted to Constitutionally-protected speech and that Smith couldn’t be compelled to create such websites for same-sex couples — Hensley’s claim is that her rights under the Texas Religious Freedom Restoration Act were violated. Her case was dismissed by Judge Jan Soifer of Austin’s 459th State District Court in Travis County. On appeal, that dismissal was affirmed. The Texas Supreme Court agreed in June to hear Hensley’s appeal.
In her brief to the Texas Supreme Court, Hensley argued that the Court’s ruling in 303 Creative v. Elenis proves that Colorado did not have a “compelling interest” in forcing the web designer to provide services to same-sex couples.
Smith’s claim was based on application of Colorado’s public accommodation law which forbids discrimination on the basis of sexual orientation. Ultimately, Smith prevailed because the Court’s conservative majority agreed that Colorado overstepped by enforcing the law in a manner that would amount to forced speech.
By contrast, Hensley’s objection is more closely analogous to the case of Kim Davis, the former Kentucky county clerk who refused to grant marriage licenses to same-sex couples even after the Supreme Court ruled that marriage equality was a constitutionally-protected right in 2015.
Like Hensley, Davis cited her personal religious objections to same-sex marriage as grounds for refusing to follow the law. When a federal court ordered Davis to start issuing marriage licenses, Davis appealed, lost, and was ultimately jailed for contempt of court.
Hensley’s attempt to stretch the Supreme Court’s ruling in 303 Creative v. Elenis is reminiscent of arguments arising in the immediate aftermath of the Court’s landmark ruling in Masterpiece Cakeshop v. Colorado. While the justices narrowly held that a custom cake-baker was entitled to refuse to create a wedding cake for gay couple on free speech grounds, other business tried to use the ruling to bolster their right to discriminate in contexts far outside the arena of speech.
Hensley’s attorney did not respond to request for comment.
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