September 2021 Church & State Magazine - September 2021

Texas Judge Can’t Challenge Sanc­tion For Denial Of Services To Same-Sex Couples, Court Rules

  Texas Judge Can’t Challenge Sanc­tion For Denial Of Services To Same-Sex Couples, Court Rules

A Texas justice of the peace who refuses to offer marriage ceremonies to same-sex couples has lost her case in court.

Judge Jan Soifer of the 345th Civil District Court in Travis County in late June dismissed a lawsuit brought by Justice of the Peace Dianne Hensley. Hensley was seeking damages from the Texas State Commission on Judicial Conduct, which in 2019 determined that she violated the Texas Code of Judicial Conduct and sanctioned her.

Hensley sought a reversal of that order, a declaratory judgment that the commission had violated her religious freedom rights and a new order allowing any judge the ability to refuse to officiate weddings for same-sex couples. Her case was sponsored by First Liberty Institute, a Christian nationalist legal organization.

The Commission concluded that Hensley had 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.” Her legal challenge to that finding was tossed on a technicality. Soifer concluded that Hensley did not exhaust administrative remedies before suing, and that it was in any event not proper to sue the Commission.

The U.S. Supreme Court upheld marriage equality in 2015. Since then, several owners of secular businesses such as bakeries, photographers and caterers, have refused to serve same-sex couples, citing personal religious beliefs. A handful of government officials have joined them, most notably Kim Davis, a county clerk in Rowan County, Ky., whose refusal to allow her office to grant marriage licenses to same-sex couples made her a martyr to Christian nationalists. (Davis, who lost her case in court, was voted out of office by Rowan County voters in 2018.)

On Americans United’s “Wall of Separation” blog, Ethan Magistro, a student at Princeton University who worked at AU as an intern this summer, asserted that Hensley had also violated the equal-protection clause of the Fourteenth Amendment of the U.S. Constitution.

“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,” Magistro wrote. “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.”

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