The ripples of discrimination resulting from the Supreme Court’s ruling in 303 Creative LLC v. Elenis are being felt around the country. It began in Colorado, worked its way to a hair salon in Michigan and has now reached Texas, where McLennan County Justice of the Peace Dianne Hensley is hoping the ruling will come to her aid as she insists she has a right to refuse to perform marriage ceremonies for same-sex couples.
In 2019, Hensley was issued a public warning from the State Commission on Judicial Conduct for refusing to perform same-sex marriages. She subsequently filed a lawsuit claiming that the warning substantially burdened the free exercise of her religion. The lawsuit was dismissed by a state judge, but the Texas Supreme Court recently decided to hear arguments about whether to revive the case.
A legal right to discriminate
Hensley’s legal team has filed a brief alleging that the Supreme Court’s decision in 303 Creative is applicable to Hensley’s lawsuit. Hensley and her legal team are using the decision to advocate for a religion-based right to discriminate. They believe that the ruling affirms religious freedom as a license to exclude some people and treat them like lesser citizens.
But there’s a big difference in Hensley’s case: She’s a government official acting in an official capacity. The actions she is required to take, like performing weddings, are actions of the state and need not be representative of her personal beliefs. She is not operating a private business and does not have the right to discriminate against LGBTQ+ folks. She is required to execute the law – and the law still mandates marriage equality.
Blow to marriage equality
The implications of this case are concerning. If Hensley were to win her lawsuit, marriage equality as we know it would take a real blow. Judges and other officials everywhere could refuse marriage licenses to same-sex couples regardless of national law.
The ruling in 303 Creative is limited to “expressive” content. That should not include a government official, who must, by law and the rules of simple decency, treat everyone equally.
