TX Judge Cites 303 Creative As General License To Discriminate Against Gays ... For Jesus

[photo1]BREAKING: Bigots are taking the Supreme Court's 303 Creative v. Elenis decision as blanket permission to discriminate against gay people.

Who could have foreseen this shocking turn of events?

Oh, everyone? Right, cool.

The latest evidence that this opinion will be treated as the starter pistol in a race to overturn marriage equality under Obergefell, comes out of Texas. As flagged by the non-profit Texas Tribune, Judge Dianne Hensley cited 303 Creative in support of her refusal to perform gay weddings due to her avowed Christian beliefs.

Following Obergefell, it became almost impossible to get a civil wedding in Waco, as five of the six justices of the peace simply stopped officiating at all, rather than preside over a same-sex marriage. Judge Hensley sought to ameliorate the problem by performing heterosexual weddings, while providing same-sex couples with a note reading "I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings," and a referral to other officiants.

"Judge Hensley's referral system benefitted both same-sex and opposite sex couples when compared to her earlier practice of refusing to officiate any weddings," she wrote in one of her subsequent legal briefs. "It benefitted same-sex couples by providing them with referrals to willing officiants in McLennan County. And it benefitted opposite-sex couples by allowing them to obtain a justice-of-the-peace wedding, because no other judges or justices of the peace in Waco are willing to officiate any weddings in the wake of Obergefell."

In October of 2019, the Texas Commission on Judicial Conduct decreed that Hensley "should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct."

Hensley sued the Commission and its individual members seeking damages and injunctive relief under the under the Texas Religious Freedom Restoration Act (TRFRA), but the trial court tossed the claim for violating sovereign immunity and as an "impermissible collateral attack on the Commission's order." The intermediate appellate court affirmed, but the state's highest court agreed in June to hear arguments about whether to allow her to revive her claim.

On July 6, Hensley filed a notice of supplemental authority arguing that 303 Creative stands for the proposition that the state has no compelling interest in ensuring that homosexual couples are treated with equal dignity to heterosexual couples.

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 respondents have insisted throughout this litigation that the state has a "compelling interest" under Texas RFRA in forcing Judge Hensley to officiate same-sex weddings on the same terms that she officiates opposing-sex weddings, notwithstanding her sincere religious objections to homosexual behavior and same-sex marriage. But the respondents' argument would have required 303 Creative to come out the other way.

On its face, it would appear that 303 Creative is a poor proxy for Hensley's case -- Hensley is a public official, not a wedding website designer. Also the issue in 303 Creative was compelled "expressive" speech, not ministerial state acts. A better analogy would be to Kim Davis, the Kentucky clerk who claimed a religious right not to issue same-sex marriage licenses, and lost her case. But with today's Supreme Court, stare decisis is more or less optional. So ... here we are.

Texas judge who doesn't want to perform gay marriage ceremonies hopes web designer's Supreme Court case helps her fight [TX Tribune]

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.