Judge Hensley’s Quest

Penna Dexter

Nine years ago, the United States Supreme Court issued the landmark Obergefell v. Hodges decision that brought same sex marriage to every state. This — despite the fact that 31 states had specifically defined marriage in their laws and constitutions as being between one man and one woman.

Many Americans still hold to that definition of marriage, especially people of faith.

During oral arguments in Obergefell, Justice Antonin Scalia, asked, “Is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men if indeed this court holds that they have a constitutional right to marry?” Then he said, “I don’t see how.”

So far, the government has not forced churches and pastors to marry same sex couples. But public officials who perform marriages often experience opposition when they refuse to do so.

One such official is Dianne Hensley, a justice of the peace in McLennon County, Texas. She has refused to perform same sex weddings and thus received a reprimand from the State Commission on Judicial Conduct citing a violation of judicial impartiality. She now refers same sex couples to nearby officiants. Because of the public warning, she currently does not perform any weddings but, in order to serve her community, she would like to resume doing so.

In Obergefell, all nine justices affirmed that religious liberty should be protected. This was a slender reed to hang onto. Kelly Shackelford, President and CEO of First Liberty Institute, predicted that, post-Obergefell, religious liberty would come under attack.

Now the organization he leads is representing Judge Hensley in her quest to win the right for any justice of the peace in Texas to opt out of same sex weddings while still performing other weddings.

The TX Supreme Court recently ruled that Judge Hensley can challenge this warning in court, on the basis that her religious freedom is being violated. She’s fighting an important battle.