Texas goes after a judge who refused to perform gay weddings

Texas is a battleground. With its 38 electoral college votes, if Democrats can flip it, they will hold the White House. One of the wars being waged is in the judiciary, and one of the targets is McLennan County Justice of the Peace Dianne Hensley. She was investigated for referring same-sex weddings to a colleague instead of performing them herself, and her fate as a judge now rests with the Texas Supreme Court.

Waco is a famously conservative Texas city. It’s home to Baylor, one of the U.S.’s most renowned Baptist colleges. When I was a student in Texas, a lot of my friends told me (incorrectly) that the movie Footloose, about a town that banned dancing only to be “saved” by Kevin Bacon, was based on Waco. It had that reputation. If you can turn Waco from red to blue, you’ve scored a big victory in the battle for Texas.

One of the roles a Justice of the Peace performs in Waco’s courthouse is to officiate at weddings. In 2015, though, when the Supreme Court found a magical right in the Constitution that forced states to legalize same-sex love, Hensley, along with other judges in conservative Waco, retired from performing any weddings so that she wouldn’t be forced to perform same-sex weddings.

Image: Same-sex wedding cake by AI.

However, in 2016, Hensley resumed officiating at weddings for straight couples when she found someone to whom she could refer gay couples on the same terms as a wedding she would perform. For her, it was a reasonable accommodation. No one complained.

However, when a local newspaper got hold of what was happening, the State Commission on Judicial Conduct decided there was a problem. Again, this is in Texas, once a famously conservative state. The Epoch Times picks up the story:

In November 2019, following a hearing, the commission issued a “public warning” that Judge Hensley's position about gay marriage was “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”

In other words, the commission concluded that, if you are a person of faith who believes marriage is between a man and a woman, you’re not fit to be a judge.

Hensley again stopped performing any weddings and filed a lawsuit against the commission for violating her religious rights, citing Texas’s Religious Freedom Restoration Act. (I’ll admit to being baffled as to why she needs to rely on a state statute. To me, this seems like a flat-out violation of her First Amendment rights but whatever…)

Hensley’s case was promptly dismissed for failing to challenge the decision at the agency level, a ruling that the state court of appeals upheld. One of the privileges government agencies have in America is the right to exhaust litigants’ time, money, and energy by getting first crack at deciding whether their own bureaucrats were right or wrong. In my experience, they usually side in favor of their bureaucrats.

What’s happening in Texas matters. In 2008, when gay marriage was on the ballot in California, I spoke with a leftist attorney who couldn’t understand why churches were raising the First Amendment to oppose same-sex marriage. After all, he said, it’s just like abortion, and that’s not a First Amendment fight. I politely explained to him that churches weren’t being called upon to perform abortions but that performing weddings is an integral part of their job.

That hadn’t occurred to him, but what’s happening in Texas raises exactly the same issue. The First Amendment is on trial there.

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