The Limits of 303 Creative

Caroline notes:

A Christian Texas judge who sued after she was reprimanded by the state for refusing to perform same-sex marriages argues that her conduct is protected after the Supreme Court ruled in favor of a website creator in a free expression case.

From 2016 on, Waco judge Dianne Hensley declined to preside over wedding ceremonies for same-sex couples on religious grounds. In 2019, she received a public warning from the State Commission on Judicial Conduct. She then sued the agency for $10,000, arguing that it “substantially burdened the free exercise of her religion, with no compelling justification.”

It didn’t.

I’m about as strong a defender of conscience rights as you’ll find, but I’ve long thought that this claim was weak when applied to public servants, and I think so here, too. Back in 2015, I disagreed with my then-colleague David French about Kim Davis, who was refusing to issue marriage licenses to gay couples in Kentucky but who wanted to keep her job as a county clerk nevertheless:

Until such time as the Constitution is amended, the Court’s attitude changes, or the republic falls to revolution, Obergefell will remain on an equal legal footing with the other precedents that make up our contemporary legal oeuvre. Weak as its reasoning is, there is no such thing as an “almost ruling.” In practice, a 5–4 decision has the same effect as a unanimous one; structurally, an iffy justification is as potent as the most solid of rationales. However much a state employee might disdain a particular judgment, it simply cannot do to have him translating that disapproval into professional action. If he wishes to privately protest a given ruling — or to refuse to abide by its consequences — that is his inalienable right. “Take what you want,” the old proverb holds, “but pay for it.” He cannot, however, credibly work for the government while doing so — or, at least, he cannot expect to be spared the consequences if he insists upon remaining in power. The rule of law is just that: a rule. There is no such thing as a selective revolution.

I have written similar things about the rogue prosecutor whom Governor DeSantis suspended last year.

The distinction between private and public actors matters enormously in this realm. Private citizens ought to enjoy wide latitude to dissent from the opinions of the government, and, in some cases, from the laws that it passes, too. Public servants ought not to enjoy those things — at least not in their official capacities. At the edges, there is some room to accommodate publicly employed dissenters when doing so does not substantially burden the government. (See, for example, the recent case of Groff v. DeJoy.) But, after a certain point, if you want to work for the government — especially as a judge — you must agree to follow the laws that that government is obliged to uphold. As private citizens, Americans enjoy the unalienable right to free speech. If they become public employees, those same Americans necessarily consent to the curtailment of some of those rights. I do not want to see Joe Biden refusing to enforce Congress’s will because he feels that to do so would violate his conscience.

Hensley argues that

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.

This is silly. First off, 303 Creative was a free-speech case, not a free-exercise case, which renders this comparison somewhat dishonest. Hensley alleges that the approach taken by the commission “would have required 303 Creative to come out the other way.” That isn’t true. Nor, for that matter, are the “compelling interest” analyses interchangeable. There was obviously no “compelling interest” in the government’s decision to force a particular web designer to engage in compelled speech. That web designer spoke only for herself, and there were many other web designers out there who took a completely different view. But judges? Judges don’t work like that, do they? Judges work for the government, which has a monopoly on force. For judges, being compelled to follow the law is quite literally the job. Judges are assigned to you. Judges can send you to jail. In Texas, judges can order your execution. If a potential customer of 303 Creative is turned down, he can go somewhere else; if a judge turns down a request from a citizen to perform a government function, that citizen might reasonably infer that the refusal has been issued or blessed by the government writ large.

As Caroline continues:

The warning noted that Hensley referred gay couples who wanted her to preside over their wedding to other people. Hensley issued those couples a document reading, “‘I’m sorry, but Judge Hensley has a sincerely held belief as a Christian, and will not be able to perform any same-sex weddings,” according to the warning. The commission claimed that her turning gay couples away cast doubt “on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”

Well, doesn’t it? Again: It doesn’t matter if a private citizen, acting in his private capacity, declines to engage in speech he finds abhorrent. If some guy comes to me and asks me to write him a speech for his Ban All Guns rally and I say that I don’t want to because I don’t like his movement, he may go away concluding that I don’t like the Ban All Guns movement. So what? I don’t. But judges, clerks, tax assessors, and so forth are different. Yes, the existence of the First Amendment and of federal- and state-level statutes designed to protect religious freedom ought to force the government to find accommodations for public employees in certain circumstances. If, for example, the government of Texas were demanding that judges in the state must remove their yarmulkes while on the bench or wear a “Trump 2024” button as a condition of their employment, Hensley’s case would be strong. But there’s no equivalence between the facts in Hensley’s tendentious complaint and the quotidian application of the First Amendment that we saw in 303 Creative, and if those of us who desire to see the broadest possible application of the First Amendment’s guarantees wish to continue on our winning streak, we’ll do well to remember that.