A justice of the peace in Waco, Texas, has initiated a federal lawsuit challenging the Supreme Court’s 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage across the United States. Judge Dianne Hensley, who has refused to officiate weddings for same-sex couples, is seeking to have this landmark ruling overturned.
The lawsuit, filed against the State Commission on Judicial Conduct, claims that the decision in Obergefell was unconstitutional, as it allegedly prioritized the preferences of unelected judges over state laws. Hensley has enlisted the services of Jonathan Mitchell, a conservative lawyer known for crafting Texas’ 2021 abortion law that circumvented the protections established by Roe v. Wade.
Mitchell articulated in the filing that the federal judiciary lacks the authority to create or recognize “fundamental” constitutional rights. This argument comes in light of a similar case previously declined by the U.S. Supreme Court involving Kim Davis, a former county clerk from Kentucky.
While acknowledging that lower courts cannot overturn Supreme Court precedents, Mitchell indicated that he is positioning this argument with the intention of eventually bringing the case before the highest court.
This legal battle traces back to 2015, shortly after the Obergefell ruling, when Hensley ceased performing marriages due to her religious objections to same-sex unions. The following year, she resumed officiating marriages for opposite-sex couples while directing same-sex couples to other officiants.
In 2018, the State Commission on Judicial Conduct launched an investigation, and by 2019, Hensley received a public warning for breaching a judicial conduct canon prohibiting actions that could undermine a judge’s impartiality.
Hensley took her case to state court, and after the Texas Supreme Court permitted her lawsuit to continue, the judicial conduct commission rescinded its earlier warning last year.
In a related matter, another judge sought judicial protection against penalties for only officiating opposite-sex marriages. Earlier this year, the 5th U.S. Circuit Court of Appeals revived that case, sending it back to the Texas Supreme Court for further clarification of state law.
In response to these developments, the Texas Supreme Court revised the judicial canon used to discipline Hensley, stating that judges may refrain from officiating weddings based on sincere religious beliefs without violating the canons.
The State Commission on Judicial Conduct clarified that this amendment does not grant judges the authority to only perform ceremonies for heterosexual couples while refusing same-sex couples. They emphasized that the amendment allows for an opt-out based on religious beliefs but does not permit selective officiating.
Mitchell criticized the commission’s stance, arguing that it puts Hensley at risk of the same disciplinary actions she faced in 2016. The lawsuit seeks to prevent the commission from investigating or disciplining her and declares that her constitutional rights have been violated.
Furthermore, Mitchell contends that this case represents an opportunity for the courts to reconsider and potentially overturn Obergefell v. Hodges, returning the authority over same-sex marriage back to individual states, similar to the recent Dobbs case regarding abortion.
Mitchell asserted that the commission’s actions against Hensley and other Christian judges stem directly from the Supreme Court’s decision in Obergefell, which declared same-sex marriage a constitutional right. He further stated that the Constitution does not support the notion of same-sex marriage as a constitutional entitlement.
