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Texas Supreme Court to decide if a judge can be punished for refusing to marry gay couples
Justice of The Peace Dianne Hensley believes her Christian faith should excuse her bigotry
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The Texas Supreme Court is currently weighing whether a judge could be sanctioned for refusing to do her job on account of Christian bigotry. It all stems from her desire to perform weddings… unless they involve same-sex couples.
Back in December of 2019, after refusing to marry gay couples who visited her courthouse, Texas Justice of The Peace Dianne Hensley was given a public warning by the Texas Commission on Judicial Conduct. It was nothing more than a slap on the wrist. Instead of removing her from the job she refused to do, the Commission merely said she was “casting doubt on her capacity to act impartially” and said she could be punished in the future.
Hensley responded by suing the Commission.
Because how dare anyone point out her Christian bigotry.
In its lawsuit, First Liberty argues, “The Commission violated the Texas Religious Freedom Restoration Act by investigating and punishing Judge Hensley for recusing herself from officiating at same-sex weddings, in accordance with the commands of her Christian faith.” Adding, “By investigating and punishing her for acting in accordance with the commands of her Christian faith, the State of Texas has substantially burdened the free exercise of her religion, with no compelling justification.”
No compelling justification?! The compelling justification was that people deserve to be treated equally under the law. A judge who offered to perform wedding ceremonies for straight couples but not gay ones had no business being a judge. Being Christian shouldn’t allow government officials to ignore the law. It wasn’t okay with Kim Davis, and it shouldn’t have been okay with Hensley.
She was asking for $10,000 in damages because that was the money she was losing by not being allowed to perform (straight) weddings. She also requested a declaration that everyone in her position could pull the same stunt if their God commanded it.
In 2021, a judge tossed out her case on technicalities, including the fact that the commission had sovereign immunity from such lawsuits. An appeals court later affirmed the ruling. But Hensley asked the state’s highest court to take up the case, and that’s what they did last week.
Her lawyer, Jonathan Mitchell—better known as the former state solicitor general behind the state’s infamous abortion “bounty” law—argued that she had every right to discriminate on the basis of sexual orientation:
Mitchell further argued that state law protects people’s religious freedom unless there is a “furtherance of a compelling governmental interest.” He also said it prohibits wedding officiants from discriminating based on race, national origin or religion.
“Notably absent from that list of protected criteria that I just mentioned is any mention of discrimination on account of sex or sexual orientation,” Mitchell told justices. “It’s still permissible for wedding officiants — whether they’re judges or members of the clergy — to discriminate based on any other characteristic, as long as it’s not race, national origin or religion, when they decide which weddings they will officiate.”
Being a Christian, you see, allows Hensley to be an anti-LGBTQ bigot, just not a racist one… even though both involve characteristics that people don’t choose for themselves.
The thing is: Hensley could avoid this entire situation if she simply opts out of performing marriages. No one is forcing her to do that. But she wants the ability to sign marriage certificates for straight couples and not gay ones, and she believes her religion takes priority over the law, even though she’s working for the government. If we allowed officials like her to pick and choose which rules to follow, it would throw the government into chaos. It would make a mockery out of civil rights.
As the commission’s lawyer explained, no one’s punishing (or even threatening to punish) Hensley for her religious views. It’s all about her actions. If a Christian judge made it clear that he didn’t want to perform any marriages because of his anti-gay bigotry, that would be just fine. Hensley, however, wants to offer the service while excluding certain people. That’s the problem.
In an interview last month with The Dallas Morning News, Hensley said she hadn’t performed any marriages in years. She also claimed, falsely, that children with opposite sex parents fare better in life. Then there was this anecdote about her now-deceased gay brother:
After he had a falling out with their parents over what she described as “economics,” Hensley said she hired a detective to track him down once a year and take a photograph as a gift for their mother. One year, he was in Paris. Another year in Japan. Then Dubai.
In any case, if Hensley wanted to get ordained and perform private wedding ceremonies just for straight, white, evangelical couples, no one would be complaining. But she has no business discriminating against certain Texans when she’s working for the government.
Her lawyers argued earlier this year that the Supreme Court already sided with a Colorado website designer who refused to make wedding websites for gay couples (something no gay person actually asked her to do). But there’s an obvious difference between a private business owner and a government official. Why her own attorneys don’t get that, I have no idea.
But it would be very troubling if the Texas Supreme Court takes her side on this one. What would stop other judges from using religion as an excuse to deny justice to other potential clients?
Even though there’s no reason the judges should rule in her favor, it’s important to remember that every member of the Texas Supreme Court is Republican. There’s no reason to think justice and basic human decency will win out here. The only hope may be that they limit the damage they cause or choose to uphold the earlier (correct) decisions.
(Portions of this article were published earlier)