“The Supreme Court’s membership has changed since Obergefell.”
That observation came in a legal complaint filed on behalf of Dianne Hensley, a justice of the peace in Waco, Texas. She doesn’t want to officiate same-sex marriages, because of her Christian faith. Her lawsuit, filed in the federal Western District of Texas on Friday, seeks to lay the groundwork for reversing the high court’s 2015 ruling in Obergefell v. Hodges, which affirmed same-sex marriage rights.
Represented by Jonathan Mitchell, who devised Texas’ abortion ban and represented Donald Trump in his effort to stay on the 2024 presidential ballot, Hensley’s complaint contained an unusually direct assessment of the court’s personnel changes.
“Justice [Anthony] Kennedy, the author of Obergefell, has been replaced by Justice [Brett] Kavanaugh, and Justice [Ruth Bader] Ginsburg, who joined the majority in Obergefell, has been replaced by Justice [Amy Coney] Barrett,” Mitchell wrote.
“So it is far from clear that five members of the current Supreme Court will endorse Obergefell, and Dobbs has already repudiated Obergefell’s ‘reasoned judgment’ test for identifying ‘fundamental rights,’” he wrote, referring to the court’s 2022 ruling that overturned abortion rights.
It’s true that a majority of the current court probably doesn’t like Obergefell. Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito dissented in that 5-4 case. The fourth dissenter was the late Antonin Scalia, who was replaced by Justice Neil Gorsuch. Coupled with the personnel changes noted by Mitchell, it’s a court that would have likely come out the other way if it were considering the matter in 2015. Mitchell wrote that the Kennedy-led court “invented a constitutional right to homosexual marriage.” A majority of today’s court might see it that same way, even if it wouldn’t put it that same way.
But that doesn’t mean today’s court would overturn that precedent or even take up an appeal asking it to do so. Just last month, the court rejected a petition from Kim Davis, the former Kentucky county clerk who has been after Obergefell for years. There were procedural issues with Davis’ appeal that wouldn’t have required the court to overturn Obergefell, even if the justices wanted to take her case. But if there was a desire from a critical mass of justices to reconsider the 2015 ruling, they could have used the denial of Davis’ petition to make that clear. It’s not unusual for justices to use denials to make their views known that a rejection in one case isn’t the end of the road for an issue at the high court. Yet, not a single justice dissented from Davis’ denial or even lodged a statement concurring in the denial. Hensley’s case would be likely to meet the same fate as Davis’ if it gets to the justices. But it shows that Davis’ denial isn’t the end of the fight against Obergefell, even if it’s a losing fight in the end. It’s one that has a lawyer behind it who has succeeded in pressing conservative causes. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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