A judge in Texas has filed a federal lawsuit with the goal of convincing the Supreme Court to hear another challenge to its landmark 2015 decision legalizing same-sex marriage. 

In November, the Supreme Court declined to reconsider the decision that recognized the constitutional right to same-sex marriage, Obergefell v. Hodges. But that has not quieted opponents of the decision who want to see it overturned.

A justice of the peace at Waco, Dianne Hensley, filed a federal lawsuit against the Texas Commission on Judicial Conduct. The lawsuit argues that the Supreme Court’s Obergefell decision was not constitutional because it “subordinat[ed] state law to the policy preferences of unelected judges.”

Judge Hensley is being represented by a conservative lawyer, Jonathan Mitchell, who is involved in several lawsuits that aim to crack down on the shipment of abortion medication. 

Judge Hensley’s lawsuit asserts that the “federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights.”

“There is nothing in the language of the Constitution that even remotely suggests that homosexual marriage is a constitutional right,” the lawsuit says.

Although the lawsuit was filed in the United States District Court for the Western District of Texas, Mr. Mitchell acknowledged that the district court does not have the authority to overturn Obergefell. However, he said in the filing that he hopes his case will make it to the Supreme Court, where he believes the current conservative majority will overturn the decision. 

Judge Hensley temporarily stopped officiating all marriages after the Obergefell decision in 2015. However, the next year, she started performing marriages for opposite-sex couples but referred same-sex couples to other officials. 

She was reprimanded for her position by the Commission on Judicial Conduct in 2019. The panel said that her position on same-sex marriages violated the state’s judicial code of conduct, which requires judges to remain impartial.

Judge Hensley sued the commission, and it rescinded its reprimand. 

Another judge sued the commission, hoping to secure a guarantee that he would not face disciplinary action for only officiating opposite-sex marriages. That case prompted the Texas Supreme Court to clarify the judicial canon to state that 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.”

However, the commission on judicial conduct said in a filing this month that the state supreme court’s statement does not mean that judges can perform opposite-sex weddings and refuse to marry same-sex couples. 

“The comment only gives a judge the authority to ‘opt out’ of officiating due to a sincere religious belief,” the commission said. 

Judge Hensley filed her latest lawsuit, warning that the commission’s December statement might put her at risk of being disciplined again. 

Her lawsuit asks the court to block the judicial conduct commission from investigating and disciplining her for her stance on same-sex weddings.

Attorneys for the commission did not respond to the Sun’s request for comment by the time of publication.