Texas Attorney General Ken Paxton’s office is not defending a state agency that is being sued for punishing a judge who refuses to officiate gay marriages.
It’s the most recent in a handful of cases in which Paxton, a Republican, has stepped away from one of the basic requirements of his job because the state’s actions conflict with his views of the Constitution.
Just days after the 2015 Supreme Court decision legalizing same-sex marriage, Paxton issued a legal opinion arguing that Texas clerks and judges with religious objections could not be forced to officiate those marriages or process the paperwork. In the nonbinding opinion, Paxton, also pledged to “be a public voice for those standing in defense of their rights.”
That argument will be tested in Texas courts for the first time after Justice of the Peace Dianne Hensley of Waco sued the Commission on Judicial Conduct for issuing her a warning last year. Since 2015, the general practice in Texas has been that judges either perform all types of marriages or none, if they have religious objections to same-sex marriages. But Hensley argued she could continue officiating straight marriages while referring same-sex couples to others because of the conflict with her religious beliefs.
The attorney general would have been expected to represent the commission as part of his charge to defend state agencies, putting Paxton in the awkward position of arguing against his 2015 opinion.
Instead, the attorney general’s office is not representing the agency.
“We believe judges retain their right to religious liberty when they take the bench,” spokesman Marc Rylander said in a statement.
Jacqueline Habersham, interim executive director of the Judicial Commission, has so far acted as counsel for the commission in the case. Habersham declined to comment.
Paxton declined to defend a different state agency, the Texas Ethics Commission, in a lawsuit filed years ago by Empower Texans, a hardline conservative group that has been an important political ally to him. And he has opted not to defend state laws, like the Texas Advance Directives Act, when they conflict with his interpretation of the Constitution.
Hensley is represented in the case by the First Liberty Institute, a high-profile Plano-based religious liberty law firm with deep ties to Paxton’s office that reach back to the earliest days of his political career. Hensley’s lawyer, Jonathan Mitchell, is a former solicitor general of Texas. And Paxton and the First Liberty Institute have often been allies in religious liberty fights in Texas, collaborating on a lawsuit against the city of San Antonio after it banned Chick-fil-A from opening a location in its airport. Jeff Mateer, now Paxton’s top aide, worked as the firm’s general counsel before joining the attorney general’s office.
Kelly Shackelford, the group’s president and CEO, has endorsed Paxton and contributed to a legal defense fund Paxton has used to fight off a four-year-old criminal indictment for securities fraud.
Nothing ol’ Kenny won’t do to help his buddies. In this sense, it’s just as well that he’s peaced out of the litigation, because literally any alternate arrangement for the State Commission on Judicial Conduct, whether they represent themselves or hire an outside firm, would be better than having an attorney that’s biased against you as your advocate. The solution here is the same as it’s ever been – we need a better AG. We tried in 2018, we’ll need to finish the job in 2022. He’s not going to change, we have to swap him out.