In late June, Judge Jan Soifer in Travis County, Texas, threw out a lawsuit by Justice of the Peace Dianne Hensley. Hensley was seeking damages from the Texas State Commission on Judicial Conduct, which sanctioned her in 2019 for refusing to officiate the wedding of same-sex couples, violating Canon 4A(l) of the Texas Code of Judicial Conduct. Hensley also sought a declaratory judgment that the commission violated her religious rights and that they had to allow any judge the ability to refuse to officiate same-sex couples.
It’s about time this junk lawsuit was trashed. Hensley’s refusal to act impartially toward same-sex couples is wrong on many levels. It not only violates the Judicial Code of Conduct, but it also harms same-sex couples by excluding them from a service available to heterosexual couples. In Obergefell v. Hodges – the landmark decision in which the Supreme Court ruled that same-sex couples have a constitutional right to marry – Justice Anthony M. Kennedy, writing for the 5-4 majority, explained that “It is demeaning to lock same-sex couples out of a central institution of the Nation’s society, for they too may aspire to the transcendent purposes of marriage.”
Hensley did direct same-sex couples towards other justices of the peace who were willing to officiate their weddings. But providing an alternative like this is not a sufficient remedy to the core harm her refusal to officiate same-sex couples caused. When a same-sex couple is denied service because of their sexual orientation, that harms their dignity, making them feel as if they are second-class citizens. No one should feel that the government that is supposed to represent them values them less than others. As someone who works on behalf of the state, Hensley must provide services to all Texans without discrimination.
Naturally, First Liberty Institute, which was defending Hensley, tried to spin the Commission’s decision to sanction Hensley as a violation of their debased interpretation of the freedom of religion, a common charade pulled by religious extremists and their lawmaker allies in legal battles. By having to officiate same-sex couples, Hensley claims her religious freedom and beliefs were violated. But religious freedom protections, while important, stop when religious beliefs harm others.
It would be another matter if Hensley had been simply expressing her personal religious beliefs. First Amendment protections allow her to voice her dogmas freely. But when acting on behalf of the state, Hensley must act impartially and without discrimination. The court’s ruling in Obergefell v. Hodges makes this abundantly clear. Kennedy tackled this exact issue in his opinion in the case.
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” Kennedy wrote. “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.”
The Commission concluded that Hensley violated Texas’s Judicial Code of Conduct because her actions cast “doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.” But Hensley’s conduct was unlawful in other ways too. She violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, by treating same-sex couples differently than opposite-sex couples in her marriage work. She also likely violated the Equal Rights Amendment of Texas’ constitution, which guarantees equality under the law regardless “of sex, race, color, creed, or national origin” and is generally construed the same way as the federal Equal Protection Clause. Moreover, Hensley’s religious bias against same-sex couples is directly in opposition to the foundational American principle of church-state separation.
Ultimately, Hensley’s suit was thrown out over legal technicalities. Judge Soifer concluded that Hensley did not exhaust administrative remedies before suing and that it was in any event not proper to sue the Commission. Nonetheless, Hensley was undeniably in the wrong. Her actions violated Texas’s Judicial Code of Conduct, the U.S. Constitution, and likely the Texas Constitution. And her lawsuit only perpetuated the harm she had already caused. Thankfully, it has landed where it always belonged: in the rubbish bin.