Since Waco judge Dianne Hensley received from the State Commission on Judicial Conduct for refusing to perform same-sex marriages in 2019, she鈥檚 waged a public battle against the state agency.
She鈥檚 long claimed the governmental body violated state law by punishing her for actions taken in accordance with her religious faith. Now, she has 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 鈥渟ubstantially burdened the free exercise of her religion, with no compelling justification.鈥� 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
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 said it will hear arguments on whether to revive the state judge鈥檚 lawsuit.
This new brief, submitted last week by Hensley鈥檚 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.
鈥�303 Creative was interpreting the First Amendment鈥檚 Speech Clause rather than the Texas Religious Freedom Restoration Act. Its holding is nonetheless instructive because it rejects the idea of a 鈥榗ompelling interest鈥� in forcing wedding vendors to participate in same-sex and opposite-sex marriage ceremonies on equal terms,鈥� the brief states.
Neither Hensley nor her legal team at First Liberty Institute were available for comment Wednesday.
According to the Texas judicial commission鈥檚 2019 warning, Hensley referred gay couples who wanted her to preside over their marriage ceremony to other people who would officiate. The state鈥檚 judicial code requires judges to conduct 鈥渆xtra-judicial activities鈥� in ways that don鈥檛 cast doubt on their impartiality on the bench. The commission issued a public warning, saying she cast doubt 鈥渙n her capacity to act impartially to persons appearing before her as a judge due to the person鈥檚 sexual orientation.鈥�
According to Dale Carpenter, chair of constitutional law at Southern Methodist University鈥檚 Dedman School of Law, the U.S. Supreme Court case has little to do with Hensley鈥檚 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 鈥渢hat鈥檚 where the similarities end.鈥�
鈥淭he service in [Henley鈥檚] 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鈥檇 be a very different case,鈥� Carpenter maintained. 鈥淚 don鈥檛 think 303 helps the judge鈥檚 case at all.鈥�
He believes this is the first of a 鈥渟lew鈥� 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.
鈥淭his 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,鈥� Carpenter said.
Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, says it鈥檚 also important to understand that if the Texas Supreme Court were to rule in Hensley鈥檚 favor, they 鈥渨ould have to expressly extend the holding of 303 Creative鈥� to her case. This means that Hensley鈥檚 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鈥檚 points on the differences between the two cases, and pointed to Hensley鈥檚 position as a purveyor of the law.
鈥淭he law of the land is marriage equality. It鈥檚 as simple as that,鈥� Gooch said. 鈥淚f judges and justices of the peace were empowered to only enforce the laws that they agreed with, we would quickly descend into anarchy.鈥�
Carpenter says the implications of Hensley鈥檚 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鈥檚 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.
鈥淚f Judge Hensley were to actually win this case, it would basically gut a good portion of marriage equality that we got,鈥� Hall said. 鈥淵our ability to get married then would be dependent on your ZIP code and kind of what resources were around you.鈥�
LGBTQ+ activists aren鈥檛 surprised by Hensley鈥檚 attempt to use the SCOTUS case in her favor. Some say a continual onslaught of anti-LGBTQ+ have left them numb.
鈥淚 have nothing to say anymore,鈥� said Verniss McFarland, founder and executive director of the Mahogany Project, which advocates for LGBTQ+ communities of color. 鈥淎s a Black trans femme person, we are already on the margins. When something like this happens, it鈥檚 just like: 鈥極h, this again.鈥欌��
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.
鈥淭raditionally, 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,鈥� Hall said. 鈥淚t鈥檚 not surprising, just disappointing.鈥�
