XPost: misc.legal, tx.politics, or.politic   
   XPost: sac.politics, talk.politics.guns   
   From: yourdime@outlook.com   
      
   A Waco justice of the peace who refused to marry same-sex couples filed   
   a federal lawsuit Friday that asks the courts to overturn Obergefell v.   
   Hodges, the 2015 Supreme Court decision that recognized same-sex   
   marriage nationwide.   
      
   The case, filed by Judge Dianne Hensley against the State Commission on   
   Judicial Conduct, asserts that the Obergefell ruling was   
   unconstitutional because it “subordinat[ed] state law to the policy   
   preferences of unelected judges.” Hensley is represented by Jonathan   
   Mitchell, a conservative attorney best known as the architect of Texas’   
   2021 abortion ban that skirted around the legal protections of Roe v.   
   Wade.   
      
   “The federal judiciary has no authority to recognize or invent   
   ‘fundamental’ constitutional rights,” Mitchell wrote.   
      
   In November, the U.S. Supreme Court declined to take up a similar case   
   from Kim Davis, a former Kentucky county clerk.   
      
   While Mitchell acknowledged that a lower court does not have the   
   authority to overturn a Supreme Court precedent, he indicated in the   
   filing that he was introducing this argument now with the hopes of the   
   case eventually reaching the high court.   
      
   Hensley’s case goes back to 2015, soon after the Supreme Court’s   
   decision, when she opted to stop performing marriages due to her   
   religious opposition to same-sex marriage. The next year, she resumed   
   performing marriages for opposite-sex couples and began referring   
   same-sex couples to other officiants.   
      
   In 2018, the State Commission on Judicial Conduct opened an inquiry and   
   in 2019, Hensley received a public warning for violating a canon of   
   judicial conduct, which prohibits judges from doing things outside their   
   judicial role that would cast doubt on their ability to act impartially.   
      
   She sued in state court, and last year, after the Texas Supreme Court   
   allowed her case to go forward, the judicial conduct commission withdrew   
   its previous warning.   
      
   Meanwhile, another judge sued, seeking assurances that he would not be   
   penalized for marrying only opposite-sex couples. Earlier this year, the   
   5th U.S. Circuit Court of Appeals revived that case and sent it back to   
   the Texas Supreme Court to get clarity on the state law.   
      
   In response, the Texas Supreme Court amended the judicial canon that had   
   been used to discipline Hensley, adding as a comment 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.”   
      
   The State Commission on Judicial Conduct — Texas’ judicial oversight   
   body — said in a filing earlier this month that this comment does not   
   amount to permission for judges to perform weddings for opposite-sex   
   couples but not same-sex couples.   
      
   “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,”   
   lawyers for the commission wrote.   
      
   Lawyers for the commission did not respond to a request for comment.   
      
   Mitchell said in the new lawsuit, filed in federal court in Waco, that   
   this “astounding position” leaves Hensley at the same risk of discipline   
   that she faced in 2016. The lawsuit asks the judge to block the   
   commission from investigating and disciplining Hensley and declare that   
   the commissioners have violated her constitutional rights.   
      
   And, Mitchell wrote, the courts should take this opportunity to overturn   
   Obergefell v. Hodges and throw the question of same-sex marriage back to   
   the states, as they did with abortion in the Dobbs 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.”   
      
   https://www.texastribune.org/2025/12/19/texas-judge-same-sex-marriage-sup   
   reme-court-obergefell/   
      
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