12.23.25 – Texas Scorecard
“Waco Judge Files Federal Lawsuit – Might Overturn Same-Sex Marriage Law”
By Travis Morgan
Excerpts from this article:
https://texasscorecard.com/state/waco-judge-files-federal-lawsuit-to-overturn-obergefell/
A Waco judge [Judge Dianne Hensley] has filed a federal lawsuit seeking to overturn the U.S. Supreme Court’s 2015 Obergefell v. Hodges ruling, which legalized same-sex marriage in all 50 states.
The case stems from McLennan County Justice of the Peace Dianne Hensley refusing to officiate homosexual weddings while continuing to perform heterosexual weddings, citing her religious beliefs.
The lawsuit was filed on Friday [12.29.25] in the United States District Court for the Western District of Texas, Waco Division, by attorney Jonathan Mitchell.
Defendants include the State Commission on Judicial Conduct [TSCJC] and its commissioners.
BACKGROUND
As previously reported, Judge Hensley was issued a public warning in 2019 by the TSCJC for officiating heterosexual weddings while referring homosexual couples to other officiants who would help them.
[***COMMENTS FROM DONNA GARNER: HOW ARE MEMBERS OF THE TSCJC CHOSEN?
The 13 members of the Texas State Commission on Judicial Conduct (TSCJC) are NOT elected by Texas voters; and in the TSCJC’s case against JP Dianne Hensley, I believe they demonstrated their partisan views.
Six of the judges are appointed by the Supreme Court of Texas; two are attorneys (who are not judges) appointed by the State Bar of Texas; and five members (who are neither attorneys nor judges) are appointed by the TX Gov.]
The commission [TSCJC] found Hensley in violation of a section of Judicial Canon 4, which states, “A judge shall conduct all of the judge’s extrajudicial activities so that they do not cast reasonable doubt on the judge’s capacity to act impartially as a judge.”
Two lawsuits resulted from the commission’s action: Judge Hensley filed a state lawsuit, while Jack County Judge Brian Umphress [Jacksboro, TX] filed a federal one.
Both are challenging the TSCJC’s interpretation of Canon 4.
In response to this litigation, the Supreme Court of Texas added a clarifying comment to Canon 4 in October of this year [2025], adding that “[i]t 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 TSCJC is now claiming the comment only addresses judges who refuse to officiate weddings altogether.
The commission [TSCJC] has since been accused of intentionally misrepresenting the Texas Supreme Court order.
Mitchell then filed a federal lawsuit on Judge Hensley’s behalf…
[COMMENTS FROM DONNA GARNER -- I feel sure that the Texas Supreme Court, Judge Hensley, and her attorney (Jonathan Mitchell), surmised that the stubborn leftists on the TSCJC would “deliberately misinterpret” the Texas Supreme Court’s decision and would try to fight it.
TSCJC took the bait; and now the case is headed to the U. S. Supreme Court, the highest court in the land.
If the Supremes decide to take the case, the entire Obergefell decision that declared gay marriage to be a constitutional right could be overturned.]
WHAT IS OBERGEFELL?
In addition to seeking monetary damages, a declaration that Hensley’s actions are lawful, and blocking the TSCJC from punishing Hensley further for her actions, Mitchell is asking the court to reconsider the Obergefell decision and to declare gay marriage is not a constitutional right.
Mitchell began by arguing that nothing in Obergefell or the Constitution requires Judge Hensley to perform same-sex weddings.
Even if there were a constitutional right to same-sex marriage, Judge Hensley’s lawyer contended that would not then license the state to violate judges’ freedom of religion and speech.
[Jonathan] Mitchell also argued that Obergefell was decided on faulty reasoning.
He wrote that “there is nothing in the language of the Constitution that even remotely suggests that homosexual marriage is a constitutional right, and the Obergefell opinion failed to identify any provision of constitutional text that establishes this supposed constitutional right to homosexual marriage.”
Because the Supreme Court’s judicial composition is now more conservative, Mitchell wrote, “It is far from clear that five members of the current Supreme Court will endorse Obergefell.”
…A more recent Supreme Court ruling — Dobbs v. Jackson, which overturned abortion-legalizing Roe v. Wade in 2022 — prohibited judges from recognizing “fundamental rights” that are unmentioned in the constitutional text unless those rights are “deeply rooted in this Nation’s history and tradition.”
“Dobbs did not purport to overrule Obergefell, but its rationale is incompatible with the idea that homosexual marriage is a ‘fundamental right,’” wrote Mitchell.
“The court-invented right to homosexual marriage — like the court-invented right to abortion — is not ‘deeply rooted in this Nation’s history and tradition,’ so Obergefell had no constitutional justification for imposing same-sex marriage on all 50 states,” he continued.
Texas law continues to define marriage exclusively as the union of one man and one woman, as the state refused to amend its marriage laws in light of Obergefell.
Mitchell argued that this further justifies Hensley’s actions and puts more pressure on the court to reconsider the precedent.
…“When the court pronounced gay marriage a constitutional right, anyone who opposes homosexual marriage is therefore an enemy of the Constitution,” he wrote.
“This has emboldened activists and politicians to embark on a campaign of intimidation against individuals and institutions who dare to express the belief that marriage is between one man and one woman.”
MORE INFORMATION
11.1.25 -- “A Win for Texas Judges Who Refuse To Officiate Same-Sex Weddings” -- From Donna Garner -- https://donnagarner.org/11-1-25-a-win-for-texas-judges-who-refuse-to-officiate-same-sex-weddings-from-donna-garner/