Dianne Hensley, a justice of the peace in Waco, Texas, refused to perform same-sex marriages in 2019 on the grounds that officiating the ceremonies would conflict with her sincerely-held religious belief as a Christian. Hensley was formally warned by the State Commission on Judicial Conduct that she should recuse herself in such matters if she refused to follow the law.
Hensley responded by suing the commission for burdening her free exercise of religion and asking for $10,000 in damages. After the Supreme Court ruled in favor of Lorrie Smith in late June, Hensley’s lawyer submitted a letter brief that argued his client should prevail just as Smith had.
Hensley’s attorney, Jonathan Mitchell, acknowledged in the letter that the Court’s holding in 303 Creative v. Elenis had been grounded in First Amendment law, but argued that the ruling should still be “instructive,” because it stands for the idea that wedding vendors should not be compelled to participate in “same-sex and opposite-sex marriage ceremonies on equal terms.”
According to Dale Carpenter, chair of constitutional law at Southern Methodist University’s Dedman School of Law, the U.S. Supreme Court case (Smith) has little to do with Hensley’s case, since one is dealing with private businesses, and Hensley is a government official acting in an official capacity. Carpenter has written extensively on the Colorado case and agreed with the 6-3 Supreme Court decision. He says the two cases are similar in that they include services to a same-sex couple, but “that’s where the similarities end.”
