Texas Judge who refused to officiate same-sex weddings sues to overturn marriage equality

A judge in Texas who refused to perform weddings for same-sex couples has filed a lawsuit asking federal courts to overturn marriage equality.

Dianne Hensley filed the suit against the State Commission on Judicial Conduct on Friday, claiming that the 2015 ruling that legalized marriage equality nationally, Obergefell v. Hodges, is somehow unconstitutional. The lawsuit states, via The Texas Tribune, that "the federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights."

Related: Meet the Texas Judge Who Refuses to Marry Same-Sex Couples

Hensley's lawyer, Jonathan Mitchell, acknowledged in the filing that federal courts do not have the authority to overturn marriage equality, but that they are hoping the case will get picked up by the U.S. Supreme Court.

Hensley stopped officiating weddings altogether in 2015 in response to Obergefell, as she said performing same-sex marriages would be incompatible with her conservative Christian faith. She resumed performing marriages the next year for opposite-sex couples, while giving same-sex couples who came to her office a list of alternative officiants, some that were cities away.

The State Commission on Judicial Conduct began an investigation of her actions in 2018, which concluded the next year with the commission reprimanding her and putting out a warning that she might not be impartial when it came to matters of sexual orientation.

Hensley then filed a lawsuit against the commission, accusing it of violating her rights under Texas’s religious freedom law, and again stopped performing marriages. A trial court dismissed her suit, and the Texas Court of Appeals upheld that ruling in 2022, finding that the commission was acting within its rights and was shielded from lawsuits by sovereign immunity.

The Texas Supreme Court rewrote the code of conduct that Hensley was found to have violated in October, adding the single line, “It 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.” Under the rule, states judges can refuse to perform same-sex weddings.

Related: U.S. Supreme Court denies hearing in Kim Davis’s marriage equality challenge

The State Commission on Judicial Conduct responded in a December filing by stating that the rule does not give judges permission to continue performing opposite-sex weddings while refusing to marry same-sex couples. It wrote, “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, at the same time, welcome to her chambers heterosexual couples for whom she willingly offers to conduct marriage ceremonies."

Hensley's newest suit seeks to circumvent the legal battle entirely by overturning marriage equality. It is a similar case to that of Kim Davis, a county clerk in Kentucky who was sued by a same-sex couple for refusing to issue them marriage license. Davis appealed the verdict against her to the Supreme Court, and included in her filing a petition to overturn Obergefell, both of which the court refused to hear in November.