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 Courtroom choice that acknowledged same-sex marriage nationwide.
The case, filed by Choose Dianne Hensley towards the State Fee on Judicial Conduct, asserts that the Obergefell ruling was unconstitutional as a result of it “subordinat[ed] state legislation to the coverage preferences of unelected judges.” Hensley is represented by Jonathan Mitchell, a conservative lawyer finest often called the architect of Texas’ 2021 abortion ban that skirted across the authorized protections of Roe v. Wade.
“The federal judiciary has no authority to acknowledge or invent ‘elementary’ constitutional rights,” Mitchell wrote.
In November, the U.S. Supreme Courtroom declined to take up the same case from Kim Davis, a former Kentucky county clerk.
Whereas Mitchell acknowledged {that a} decrease courtroom doesn’t have the authority to overturn a Supreme Courtroom precedent, he indicated within the submitting that he was introducing this argument now with the hopes of the case ultimately reaching the excessive courtroom.
Hensley’s case goes again to 2015, quickly after the Supreme Courtroom’s choice, when she opted to cease performing marriages on account of her non secular opposition to same-sex marriage. The following yr, she resumed performing marriages for opposite-sex {couples} and commenced referring same-sex {couples} to different officiants.
In 2018, the State Fee on Judicial Conduct opened an inquiry and in 2019, Hensley acquired a public warning for violating a canon of judicial conduct, which prohibits judges from doing issues exterior their judicial position that may forged doubt on their capability to behave impartially.
She sued in state courtroom, and final yr, after the Texas Supreme Courtroom allowed her case to go ahead, the judicial conduct fee withdrew its earlier warning.
In the meantime, one other decide sued, searching for assurances that he wouldn’t be penalized for marrying solely opposite-sex {couples}. Earlier this yr, the fifth U.S. Circuit Courtroom of Appeals revived that case and despatched it again to the Texas Supreme Courtroom to get readability on the state legislation.
In response, the Texas Supreme Courtroom amended the judicial canon that had been used to self-discipline Hensley, including as a remark that “it isn’t a violation of those canons for a decide to publicly chorus from performing a marriage ceremony primarily based upon a sincerely held non secular perception.”
The State Fee on Judicial Conduct — Texas’ judicial oversight physique — stated in a submitting earlier this month that this remark doesn’t quantity to permission for judges to carry out weddings for opposite-sex {couples} however not same-sex {couples}.
“The remark solely provides a decide the authority to ‘choose out’ of officiating on account of a honest non secular perception, however doesn’t say {that a} decide can, on the identical time, welcome to her chambers heterosexual {couples} for whom she willingly presents to conduct marriage ceremonies,” legal professionals for the fee wrote.
Legal professionals for the fee didn’t reply to a request for remark.
Mitchell stated within the new lawsuit, filed in federal courtroom in Waco, that this “astounding place” leaves Hensley on the identical threat of self-discipline that she confronted in 2016. The lawsuit asks the decide to dam the fee from investigating and disciplining Hensley and declare that the commissioners have violated her constitutional rights.
And, Mitchell wrote, the courts ought to take this chance to overturn Obergefell v. Hodges and throw the query of same-sex marriage again to the states, as they did with abortion within the Dobbs case.
“The Fee’s bullying of Choose Hensley and its menacing conduct towards different Christian judges is the direct results of the Supreme Courtroom’s pronouncement in Obergefell that gay marriage is a constitutional proper,” Mitchell wrote. “There may be nothing within the language of the Structure that even remotely means that gay marriage is a constitutional proper.”
This text first appeared on The Texas Tribune.
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