Who is Judge Dianne Hensley and why is she trying to overturn same-sex marriage in the US?

Judge Dianne Hensley has filed a lawsuit asking courts to overturn Obergefell v. Hodges, in the latest attack on gay marriage in the US.

Judge Hensley filed the lawsuit on Friday (19 December), according to The Texas Tribune. The document asks for an overturn of Obergefell v. Hodges, the 2015 Supreme Court decision that established same-sex marriage nationwide.

The lawsuit continues the ongoing legal dispute between Hensley and the State Commission on Judicial Conduct, an independent Texas state agency responsible for investigating allegations of judicial misconduct.

This all began when Hensley wanted to be allowed to perform marriages for opposite-sex couples, but not same-sex couples.

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Who is Judge Dianne Hensley?

Judge Hensley, a justice of the peace in Waco, Texas, is leading the latest push to reverse same-sex marriage. Hensley has been a Waco-based judge since 2015 and is among about 800 justices of the peace in Texas. 

In 2018, the State Commission on Judicial Conduct opened an inquiry into Hensley’s conduct.

In 2019, Hensley was publicly sanctioned for refusing to officiate at same-sex weddings. They alleged that Hensley violated a canon of judicial conduct, which prohibits judges from engaging in conduct outside their judicial role that could compromise their impartiality.

The judicial commission said in its warning that Hensley’s conduct cast doubt “on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”

As a result, Hensley began a lawsuit. She alleged that the State Commission on Judicial Conduct had violated her religious rights as a Christian.

Then, the Texas Supreme Court amended the judicial canon to note 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.”

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How is Judge Dianne Hensley trying to overturn same-sex marriage?

In her attempt to reverse same-sex marriage, Hensley has asserted that the original Obergefell v. Hodges ruling was “unconstitutional.”

Hensley’s case asserts it “subordinat[ed] state law to the policy preferences of unelected judges.”

Hensley is being represented by conservative attorney Jonathan Mitchell, known for building the 2021 abortion ban surrounding the legal protections of Roe v. Wade.

“The federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights,” Mitchell wrote.

The attorney also acknowledged that “a lower court does not have the authority to overturn a Supreme Court precedent, [but] he indicated in the filing that he was introducing this argument now with the hopes of the case eventually reaching the high court.”

Furthermore, Michell wrote the court should throw Obergefell v. Hodges back  to the states, as they did with the abortion case.

“The Commission’s bullying of Judge Hensley and its menacing behavior toward other Christian judges is the direct result of the Supreme Court’s pronouncement in Obergefell that homosexual marriage is a constitutional right,” Mitchell wrote. “There is nothing in the language of the Constitution that even remotely suggests that homosexual marriage is a constitutional right.”