A Waco justice of the peace who refused to marry same-sex couples filed a federal lawsuit Friday that asks the courts to overturn Obergefell v. Hodges, the 2015 Supreme Court decision that recognized same-sex marriage nationwide.
The case, filed by Judge Dianne Hensley against the State Commission on Judicial Conduct, asserts that the Obergefell ruling was unconstitutional because it 鈥渟ubordinat[ed] state law to the policy preferences of unelected judges.鈥� Hensley is represented by Jonathan Mitchell, a conservative attorney best known as the architect of Texas鈥� 2021 abortion ban that skirted around the legal protections of Roe v. Wade.
鈥淭he federal judiciary has no authority to recognize or invent 鈥榝undamental鈥� constitutional rights,鈥� Mitchell wrote.
In November, the U.S. Supreme Court from Kim Davis, a former Kentucky county clerk.
While Mitchell acknowledged that a lower court does not have the authority to overturn a Supreme Court precedent, he indicated in the filing that he was introducing this argument now with the hopes of the case eventually reaching the high court.
Hensley鈥檚 case goes back to 2015, soon after the Supreme Court鈥檚 decision, when she opted to stop performing marriages due to her religious opposition to same-sex marriage. The next year, she resumed performing marriages for opposite-sex couples and began referring same-sex couples to other officiants.
In 2018, the State Commission on Judicial Conduct opened an inquiry and in 2019, Hensley received a public warning for violating a canon of judicial conduct, which prohibits judges from doing things outside their judicial role that would cast doubt on their ability to act impartially.
She sued in state court, and last year, after the Texas Supreme Court allowed her case to go forward, .
Meanwhile, another judge sued, seeking assurances that he would not be penalized for marrying only opposite-sex couples. Earlier this year, the 5th U.S. Circuit Court of Appeals revived that case and sent it back to the Texas Supreme Court to get clarity on the state law.
In response, the Texas Supreme Court amended the judicial canon that had been used to discipline Hensley, that 鈥渋t is not a violation of these canons for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief.鈥�
The State Commission on Judicial Conduct 鈥� Texas鈥� judicial oversight body 鈥� said in a filing earlier this month that this comment does not amount to permission for judges to perform weddings for opposite-sex couples but not same-sex couples.
鈥淭he comment only gives a judge the authority to 鈥榦pt out鈥� of officiating due to a sincere religious belief, but does not say that a judge can, at the same time, welcome to her chambers heterosexual couples for whom she willingly offers to conduct marriage ceremonies,鈥� lawyers for the commission wrote.
Lawyers for the commission did not respond to a request for comment.
Mitchell said in the new lawsuit, filed in federal court in Waco, that this 鈥渁stounding position鈥� leaves Hensley at the same risk of discipline that she faced in 2016. The lawsuit asks the judge to block the commission from investigating and disciplining Hensley and declare that the commissioners have violated her constitutional rights.
And, Mitchell wrote, the courts should take this opportunity to overturn Obergefell v. Hodges and throw the question of same-sex marriage back to the states, as they did with abortion in the Dobbs case.
鈥淭he Commission鈥檚 bullying of Judge Hensley and its menacing behavior toward other Christian judges is the direct result of the Supreme Court鈥檚 pronouncement in Obergefell that homosexual marriage is a constitutional right,鈥� Mitchell wrote. 鈥淭here is nothing in the language of the Constitution that even remotely suggests that homosexual marriage is a constitutional right.鈥�
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