The Texas attorney general is not defending a state agency being sued for punishing a judge who refuses to marry same-sex couples because the state's actions conflict with his views of the Constitution.
Attorney General Ken Paxton's office is not representing the Texas Commission on Judicial Misconduct, which issued a warning to McLennan County Justice of the Peace Dianne Hensley last year. Paxton would have been expected to represent the commission as part of his charge to defend state agencies, the Houston Chronicle reported.
The commission said Hensley has refused to perform same-sex weddings since August 2016, despite the U.S. Supreme Court's 2015 decision that established the constitutional right to same-sex marriage.
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Since 2015, the general practice in Texas has been that judges either perform all types of marriages or none. But Hensley, a Christian, argued she could continue officiating straight marriages and refer same-sex couples to others because it conflicts with her beliefs.
After the ruling, 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.
"We believe judges retain their right to religious liberty when they take the bench," Paxton's spokesperson Marc Rylander said in a statement.
Paxton reiterated those same sentiments during a radio interview in December.
"There is a First Amendment right to free exercise that is sort of standing alongside this newly minted right to same-sex marriage," Paxton said. "The First Amendment doesn't go away just because the Supreme Court created a new right."
Jacqueline Habersham, the commission's interim executive director acting as counsel in the case, declined to comment.
This is not the first time Paxton has opted not to represent state agencies. In 2018, his office did not defend the Texas Ethics Commission when political allies sought to dismantle them in court.
Rylander said the commission "is an independent agency authorized to represent itself in legal proceedings, which it typically does."
But court documents show the attorney general's office represented the commission previously.