Texas Judge Who Refuses to Perform Gay Marriages Appeals to Supreme Court’s Christian Web-Designer Ruling

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.”

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.”

On July 6, a week after the Supreme Court’s decision in 303 Creative LLC v. Elenis, Hensley submitted a legal filing saying that the Court’s ruling supports her position. The Supreme Court ruled that website designer Lorie Smith could not be compelled to make custom websites for same-sex weddings. It found that Colorado’s broad public-accommodations law, which includes protections for sexual orientation, would unconstitutionally compel her to create speech that violates her faith.

“303 Creative was interpreting the First Amendment’s Speech Clause rather than the Texas Religious Freedom Restoration Act,” Hensley wrote in the brief. “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.”

Represented by the Texas-based religious liberty law firm First Liberty Institute, Hensley accuses the state commission of infringing on her religious freedom under the Texas Religious Freedom Restoration Act. A lower appeals tribunal initially dismissed her lawsuit, but the Texas Supreme Court agreed last month hear her appeal, according to the Texas Tribune, which first reported on Hensley’s filing.

The state has claimed during litigation that it has a “compelling interest” under Texas RFRA to force Hensley to officiate same-sex weddings on an anti-discrimination and equal-protection basis.

“But the respondents’ argument would have required 303 Creative to come out the other way,” Hensley wrote in the filing. She attached a copy of the Supreme Court decision in the filing, which was addressed to the Texas Supreme Court.

Justin Butterfield, Hensley’s lawyer from First Liberty Institute, confirmed to the Tribune that the case more directly concerns religious liberty rather than free expression, which 303 Creative primarily concerned.

“303 Creative affirmed that religious liberty is not a second-class right in America. We look forward to vindicating Judge Hensley’s rights in the Texas Supreme Court,” he said.