Texas Judge Challenges Federal Same-Sex Marriage Ruling

Key Takeaways

• A Waco justice of the peace, Judge Dianne Hensley, has filed a federal lawsuit against the State Commission on Judicial Conduct, seeking to overturn the 2015 Supreme Court decision that recognized same-sex marriage nationwide.
• The lawsuit asserts that the Obergefell ruling was unconstitutional and asks the court to block the commission from investigating and disciplining Hensley for refusing to marry same-sex couples.
• The case is represented by conservative attorney Jonathan Mitchell, who argues that the federal judiciary has no authority to recognize or invent fundamental constitutional rights.
• The lawsuit aims to eventually reach the US Supreme Court, which could potentially overturn the Obergefell decision and throw the question of same-sex marriage back to the states.

Introduction to the Lawsuit
A federal lawsuit was filed on Friday by Judge Dianne Hensley, a Waco justice of the peace, against the State Commission on Judicial Conduct. The lawsuit seeks to overturn the 2015 Supreme Court decision, Obergefell v. Hodges, which recognized same-sex marriage nationwide. Hensley’s case began in 2015, shortly after the Supreme Court’s 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.

Background on the Case
In 2018, the State Commission on Judicial Conduct opened an inquiry into Hensley’s actions, and in 2019, she received a public warning for violating a canon of judicial conduct. The warning was later withdrawn after Hensley sued in state court and the Texas Supreme Court allowed her case to go forward. However, the issue persisted, and another judge sued, seeking assurances that he would not be penalized for marrying only opposite-sex couples. The 5th US 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, adding a comment that allowed judges to publicly refrain from performing a wedding ceremony based on a sincerely held religious belief.

The State Commission’s Position
The State Commission on Judicial Conduct has argued that this comment does not amount to permission for judges to perform weddings for opposite-sex couples but not same-sex couples. Lawyers for the commission wrote that the comment only gives a judge the authority to opt out of officiating due to a sincere religious belief, but does not say that a judge can welcome heterosexual couples to their chambers while refusing to perform same-sex marriages. This position has been criticized by Hensley’s attorney, Jonathan Mitchell, who argues that it leaves Hensley at the same risk of discipline that she faced in 2016.

The Lawsuit’s Arguments
The lawsuit filed by Mitchell argues that the Obergefell ruling was unconstitutional because it subordinated state law to the policy preferences of unelected judges. Mitchell writes that the federal judiciary has no authority to recognize or invent fundamental constitutional rights, and that the Supreme Court’s decision in Obergefell was an overreach of its authority. The lawsuit asks the court to block the commission from investigating and disciplining Hensley and declare that the commissioners have violated her constitutional rights. Furthermore, the lawsuit seeks to overturn the Obergefell decision and throw the question of same-sex marriage back to the states, as was done with abortion in the Dobbs case.

Implications and Potential Outcomes
The lawsuit has significant implications for the issue of same-sex marriage and the role of the judiciary in recognizing constitutional rights. If the court were to overturn the Obergefell decision, it would be a major setback for LGBTQ+ rights and would allow states to regulate same-sex marriage as they see fit. On the other hand, if the court were to uphold the Obergefell decision, it would be a significant victory for LGBTQ+ rights and would reaffirm the Supreme Court’s role in recognizing and protecting constitutional rights. The outcome of the lawsuit is uncertain, but it is clear that it will have significant consequences for the issue of same-sex marriage and the role of the judiciary in American society.