no peace

Texas judge wants to use Supreme Court’s recent LGBTQ+ ruling to stop marrying gay couples

Justice of the Peace Dianne Hensley
Justice of the Peace Dianne Hensley (Photo: YouTube)

Regular longtime readers of Queerty may remember Justice of the Peace Dianne Hensley of Waco, Texas.

Hensley says she does not wish to marry same-sex couples as it goes against her religious beliefs. She was issued with a warning in 2019 by the Texas judicial commission for directing same-sex couples to other officiants.

Hensley’s now using the recent Supreme Court ruling on businesses refusing LGBTQ+ customers to back up her stance.

Following her 2019 warning, Hensley—a devout Christian—filed a class-action lawsuit against the State Commission on Judicial Conduct. The lawsuit sought to enable her, and other justices of the peace in Texas, to decline to marry same-sex couples. That lawsuit was tossed out in 2021.

Officiating marriages is optional for justices of the peace in Texas. Hensley could have followed the example set by some of her colleagues and simply stepped down from officiating weddings.

However, conducting the ceremonies is lucrative. Between August 2016 and late 2019, Hensley conducted over 300 wedding ceremonies, all for opposite-sex couples. Hensley earned around $25,000 for these duties, according to the Houston Chronicle.

303 Creative LLC v. Elenis

The Supreme Court recently ruled (303 Creative LLC v. Elenis) that a business owner can turn away customers if it asks that business to produce materials (wedding invites, wedding cakes) that clash with their religious beliefs. SCOTUS ruled in favor of a Colorado-based graphic designer (Lorie Smith, founder of 303 Creative). She declined to make a same-sex-wedding-themed website for a client.

Despite Hensley’s lawsuit being dismissed in 2021, last month, the Texas Supreme Court said it will hear arguments on whether to revive the her lawsuit, reports the Texas Tribune.

Hensley submitted a brief last week citing the recent Supreme Court decision. Her lawyers argue that the SCOTUS decision, based on the First Amendment, overrules the earlier decision by the lower court in Texas.

“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,” the brief states.

ZIP code lottery

Some legal experts suggest Hensley is clutching at straws. The SCOTUS ruling applied to private businesses, not government officials acting in an official capacity.

Dale Carpenter, chair of constitutional law at Southern Methodist University’s Dedman School of Law, told the Texas Tribune, “I don’t think 303 helps the judge’s case at all.”

However, he said this could be the first of many attempts to extend the SCOTUS ruling to other services.

Ash Hall, of ACLU Texas, said if Hensley wins, LGBTQ+ rights in the state take a huge step back

“If Judge Hensley were to actually win this case, it would basically gut a good portion of marriage equality that we got. Your ability to get married then would be dependent on your ZIP code and kind of what resources were around you.”

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