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.

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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 in 2018 also opted not to represent the Texas Ethics Commission, which regulates campaign finance in Texas, as it was sued by Empower Texans, political allies of his who sought to dismantle the agency in court.

That same year, Paxton declined to represent the State Bar of Texas in a case questioning whether the body could spend attorneys’ dues on political activities they do not endorse and even wrote a brief siding against the agency. In 2016, he declined to represent the ethics commission when then-candidate, now state Rep. Briscoe Cain challenged a state law barring the use of audio and video produced by the Legislature in political ads.

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If the Judicial Commission ends up needing to hire outside counsel, taxpayers could be on the hook for a bigger bill. The ethics commission between 2014 and 2018 had to pay more than $400,000 out of its budget to cover the cost of outside counsel after Paxton declined to represent the agency.

Paul Nolette, associate professor at Marquette University, said situations in which an attorney general passes on representing a state agency are rare but have slowly become more common over the past decade as attorneys general offices are increasingly politicized.

“A lot of times AGs would say, ‘I don’t necessarily agree with this law, but it’s my duty to defend it’ or ‘I don’t agree with what the agency is doing, but I have a duty to defend it,’” Nolette said. “Since about 2008, 2009, the instances in which AGs have refused to defend state laws has really increased pretty dramatically, and I think that’s a reflection of increased polarization both in American society in general, as well as amongst the AGs specifically.”

Renea Hicks, who served as solicitor general under Democratic Texas Attorney General Dan Morales in the ’90s, agreed that it is unusual for the attorney general to veer away from his or her obligation to represent state agencies. Hicks said he recalls being in the position of arguing cases with which he personally disagreed. That came with the territory.

“It’s just all politics,” Hicks said. “I’m sure the attorney general would come up, someone would come up with an argument about why this has some legal question, but you can come up with that for any case.”

Hicks called it “inconceivable” that Paxton would have declined the Judicial Commission case if it had decided not to punish Hensley.

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Rylander, the Paxton spokesman, said in his statement that the commission “is an independent agency authorized to represent itself in legal proceedings, which it typically does.” He did not respond to requests for further comment.

But court documents show the agency has represented the commission at least three times since 2018. And Eric Vinson, who was the most recent executive director of the commission before Habersham, said he couldn’t recall any instance of the attorney general declining to represent the agency during his tenure from 2015 to 2019.

The laws of many states leave attorneys general with leeway in deciding which cases to take, Nolette said. Texas law simply says that the attorney general “shall prosecute and defend all actions in which the state is interested.”

Often, Nolette said attorneys general will say their “primary duty is to defend the state constitution, and that takes priority.” Rylander used very similar language in 2018 when the office refused to represent the state ethics commission, saying: “Our first obligation is to defend the Constitution and the basic rights it guarantees to each and every Texan.”

Paxton’s decision not to take up this case might have been foreshadowed in December when he reiterated his opinion on judges’ and clerks’ right to religious freedom during an interview on The Chris Salcedo Show, a Fort Worth radio program.

“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.”