A Waco, Texas, judge who has refused to perform same-sex weddings was publicly warned in 2019 for violating Texas’ code of judicial conduct. McLennan County Justice of the Peace Dianne Hensley then sued the state, claiming that the warning violated state law by punishing her for acting in accordance with her religious faith and “substantially burdened” her free exercise of religion.
Now, the Texas Tribune reports that she submitted a brief last week claiming the Supreme Court’s decision in 303 Creative v. Elenis—where it ruled in favor of the business owner seeking to deny services to LGBTQ people on First Amendment grounds—helps her case. But Hensley is not a business owner, she’s a government official. Dale Carpenter, chair of constitutional law at Southern Methodist University’s Dedman School of Law, told the Tribune that he’s very skeptical of the claim. “If 303 Creative had involved that government denying services to a same-sex couple, then that’d be a very different case,” he said. “I don’t think 303 helps the judge’s case at all.” Still, Carpenter said he expected a “slew” of cases across the country attempting to test the limits of the 303 Creative decision.
Even now, Hensley is not the first or only person attempting to use 303 Creative as a legal justification for bigotry. Just yesterday, Jezebel covered a Michigan hair salon owner’s announcement that she would refuse to serve transgender customers, citing a state non-discrimination law similar to the one at issue in the Supreme Court case.
And the Washington Post reported earlier this week that a North Carolina Catholic school that fired a gay substitute teacher in 2014 is invoking 303 Creative as a defense in the teacher’s lawsuit. The conservative Becket Fund for Religious Liberty is representing the school and is arguing that a religious school’s employment choices are “expressive association” protected by the First Amendment.
Back in Texas, Hensley’s lawyer is none other than Jonathan Mitchell, the architect of Texas’ bounty hunter abortion ban known as S.B. 8 and counsel for the Texas man suing his ex-wife’s friends for allegedly helping her obtain abortion pills. Unsurprisingly, Mitchell opposes gay rights and said in a Supreme Court brief that Obergefell v. Hodges, the 2015 ruling that legalized marriage equality, is a court-invented right that is just “as lawless as Roe [v. Wade].” He also attacks LGBTQ rights more broadly: In 2018, Mitchell represented a group seeking exemptions to anti-discrimination rules so they could refuse to hire LGBTQ people it if countered their religious beliefs and he’s the lawyer arguing that insurance shouldn’t have to cover PrEP drugs.
With S.B. 8, Mitchell got the Supreme Court to nullify Roe and render it fully meaningless in Texas before officially overturning it. It seems he and anti-LGBTQ activists are attempting to do the same now to Obergefell and other civil rights laws—and it should terrify everyone.