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A coercive and secular hegemony

Lawsuits reject reasonable accommodation for opponents of same-sex marriage

Judge Dianne Hensley First Liberty Institute

A coercive and secular hegemony

When the Supreme Court decided Obergefell v. Hodges, recognizing a constitutional right to same-sex marriages, Justice Anthony Kennedy included a promise that people of faith who opposed same-sex marriage would still retain all the rights guaranteed by the First Amendment to practice their faith and even advocate against same-sex marriage. In his dissent, Justice Scalia laid waste to that argument and knew where the direction of the culture would take those opposed to the new marriage regime. In the wake of Obergefell, we’ve seen lawsuits over whether Christians who bake wedding cakes, photograph wedding ceremonies, design wedding websites, or make floral arrangements for weddings must serve same-sex weddings against their conscience. Now, the Texas Supreme Court is considering whether judges must officiate at same-sex weddings.

One of the joys of Dianne Hensley’s job as justice of the peace for McLennan County, which includes Waco, Texas, was to officiate at weddings. That joy has dissipated, after four-plus years of a legal fight over whether she can follow her conscience and only perform opposite-sex weddings as a local judge. When same-sex couples would call the courthouse to ask for the judge to officiate their wedding vows, her staff would respond by saying that doing so would conflict with her sincerely held religious beliefs. However, they would also provide a list of other local wedding officiants who would perform a same-sex ceremony. These are the sorts of reasonable accommodations that reasonable people who disagree could hypothetically accept if broadly committed to mutually respecting pluralism. But in modern-day America, pluralism is a trojan horse used to advance the next stage of secular hegemony.

In November 2019, the state’s Commission on Judicial Conduct formally warned Hensley about her refusal to conduct same-sex weddings. The commission said 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.” A judge in Washington State received a similar admonition a decade ago. In 2015, the Wisconsin Judicial Ethics Advisory Committee stated that a judge’s choice was to do all marriages or no marriages, but that a judge could not draw lines between types of marriages. The Wisconsin committee reasoned that “a judicial officer’s refusal to perform same-sex marriages based on a couple’s sexual orientation would manifest bias or prejudice.”

It is an insult to people of faith who serve in judicial offices to suggest that because they hold an orthodox Christian view of marriage, they are incapable of acting impartially in cases involving same-sex persons.

It is an insult to people of faith who serve in judicial offices to suggest that because they hold an orthodox Christian view of marriage, they are incapable of acting impartially in cases involving same-sex persons. Indeed, at least four of the justices who sat on Obergefell hold devoutly and publicly to their Catholic faith. Still, no one called on them to recuse from the case because of their public identification with a faith that condemns same-sex marriage. No one said, “Justice Scalia is Catholic, therefore he cannot act impartially to the same-sex couple appearing before him in Obergefell, so he must recuse.”

In a vibrant, diverse, multiethnic, multifaith America, we will bump into people who do not share our faith. The classic example is the woman who shows up at Walgreens to fill a prescription for a contraceptive pill, and the pharmacist at the counter is a devout Catholic. In such instances, our nation’s tradition has been to show grace and good will: to accept the minor inconvenience of letting the pharmacist turn the contraceptive-seeking client over to a colleague who does not have an objection. Indeed, that is what Judge Hensley would do, referring same-sex couples to others in town who would gladly officiate.

But that is apparently not good enough for the woke speech police. The irony of our moment is that those who proclaim most loudly that we should live in a diverse, multiethnic, multifaith America are the same people who insist that the Catholic pharmacist must give up her faith to placate the patient’s demand at the moment. Or that the Christian cake-baker must be forced to bake the same-sex couples’ wedding cake. Or, now, that the judge must be compelled to officiate same-sex weddings that violate her conscience.

One would think that on your wedding day, you would want an officiant (or cake baker, florist, or photographer) who is enthusiastic to celebrate your big day, not one begrudgingly forced by law to administer your vows through gritted teeth. But the goal of the woke is not beautiful, joyful same-sex weddings; it is to drain the joy of life from anyone who disagrees with their ideological agenda.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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