USCA Reply BR

Case: 20-11216 Document: 00515831769 Page: 1 Date Filed: 04/21/2021
No. 20-11216
In the United States Court of Appeals for the Fifth Circuit

_____________
Brian Keith Umphress,

Plaintiff-Appellant,
v.
David C. Hall, in his official capacity as chair of the State
Commission on Judicial Conduct; Janis Holt, in her official
capacity as Secretary of the State Commission on Judicial
Conduct; David M. Patronella, Darrick L. McGill, Sujeeth B.
Draksharam, Ronald Bunch, Valerie Ertz, Frederick C. Tate,
M. Patrick Maguire, David Schenck, Steve Fischer, and
Clifton Roberson, in their official capacities as members of
the State Commission on Judicial Conduct,
Defendants-Appellees.
_____________
On Appeal from the United States District Court

for the Northern District of Texas, Fort Worth Division
Case No. 4:20-cv-00253-P
_____________
REPLY BRIEF OF APPELLANT BRIAN KEITH UMPHRESS

_____________
H. Dustin Fillmore III Jonathan F. Mitchell

Charles W. Fillmore Mitchell Law PLLC
The Fillmore Law Firm, LLP 111 Congress Avenue, Suite 400
201 Main Street, Suite 801 Austin, Texas 78701
Fort Worth, Texas 76102 (512) 686-3940 (phone)
(817) 332-2351 (phone) (512) 686-3941 (fax)
(817) 870-1859 (fax) jonathan@mitchell.law
dusty@fillmorefirm.com
chad@fillmorefirm.com Counsel for Plaintiff-Appellant
TABLE OF CONTENTS
Table of contents....................................................................................................... i
Table of authorities .................................................................................................. ii
I. The district court misstated the record by claiming that the
Commission had promised not to take future disciplinary action
against Judge Umphress over the conduct described in his
complaint ............................................................................................. 2
II. Judge Umphress has standing to seek pre-enforcement relief.............. 4
A. The factual distinctions between Judge Hensley and
Judge Umphress do not eliminate a “credible threat” of
enforcement action against Judge Umphress ............................. 7
B. Judge Umphress’s refusal to self-censor does not
eliminate the “credible threat” created by the
Commission’s discipline of Judge Hensley .............................. 12
C. A “credible threat” of enforcement exists even if the
Commission has not specifically threatened Judge
Umphress ................................................................................ 13
III. Judge Umphress has brought a facial vagueness challenge to
Canon 4A(1), and he has preserved the possibility of facial relief
on his First Amendment claims ......................................................... 16
IV. Judge Umphress’s claims are ripe...................................................... 18
V. The district court erred in concluding that Pullman abstention
was warranted .................................................................................... 20
Conclusion ............................................................................................................. 25
Certificate of service .............................................................................................. 26
Certificate of compliance ....................................................................................... 27
Certificate of electronic compliance ....................................................................... 28
i
TABLE OF AUTHORITIES
Cases
Abbott Laboratories v. Gardner,
387 U.S. 136 (1967) ............................................................................................. 18
American Booksellers Ass’n, Inc. v. Virginia,
802 F.2d 691 (4th Cir. 1986) .......................................................................... 13, 14
Arete Partners, L.P. v. Gunnerman,
643 F.3d 410 (5th Cir. 2011) ................................................................................ 23
Babbitt v. United Farm Workers National Union,
442 U.S. 289 (1979) ................................................................................. 4, 5, 7, 10
Citizens United v. Federal Election Commission,
558 U.S. 310 (2010) ............................................................................................ 18
City of Chicago v. Morales,
527 U.S. 41 (1999)............................................................................................... 25
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) .............................................................................................. 5
Doe v. Bolton,
410 U.S. 179 (1973) ............................................................................................. 24
Dombrowski v. Pfister,
380 U.S. 479 (1965) ............................................................................................ 22
Green Party of Tennessee v. Hargett,
791 F.3d 684 (6th Cir. 2015) ................................................................................ 11
Hamer v. Neighborhood Housing Services of Chicago,
138 S. Ct. 13 (2017) ............................................................................................... 6
Hobbs v. Thompson,
448 F.2d 456 (5th Cir. 1971)................................................................................ 21
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ................................................................................................ 10
In re Complaint of Judicial Misconduct (Paine),
664 F.3d 332 (U.S. Judicial Conference 2011)....................................................... 8
ii
International Society for Krishna Consciousness of Atlanta v. Eaves,

601 F.2d 809 (5th Cir. 1979) ............................................................................... 12
Lopez v. Candaele,
630 F.3d 775 (9th Cir. 2010) ............................................................................... 14
Louisiana Debating & Literary Ass’n v. City of New Orleans,
42 F.3d 1483 (5th Cir. 1995) ................................................................................ 23
Moreno v. Henckel,
431 F.2d 1299 (5th Cir. 1970) .............................................................................. 22
New Mexicans for Bill Richardson v. Gonzales,
64 F.3d 1495 (10th Cir. 1995) .............................................................................. 11
New York Republican State Committee v. SEC,
799 F.3d 1126 (D.C. Cir. 2015) ............................................................................ 24
Obergefell v. Hodges,
576 U.S. 644 (2015) ............................................................................................ 19
Quill v. Vacco,
80 F.3d 716 (2d Cir. 1996) ............................................................................. 15, 24
Speech First, Inc. v. Fenves,
979 F.3d 319 (5th Cir. 2020) ................................................................... 5, 7, 13, 16
Suhre v. Haywood County,
131 F.3d 1083 (4th Cir. 1997) ............................................................................... 13
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) ...................................................................................... passim
Telescope Media Group v. Lucero,
936 F.3d 740 (8th Cir. 2019) ............................................................................... 14
Texas Democratic Party v. Abbott,
961 F.3d 389 (5th Cir. 2020) ......................................................................... 20, 21
Thole v. U.S. Bank N.A.,
140 S. Ct. 1615 (2020) .......................................................................................... 6
United Home Rentals, Inc. v. Texas Real Estate Commission,
716 F.2d 324 (5th Cir. 1983) ................................................................................ 21
iii
Virginia v. American Booksellers Ass’n, Inc.,

484 U.S. 383 (1988) .............................................................................. 7, 13, 15, 24
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016) ........................................................................................ 18
Woodhull Freedom Foundation v. United States,
948 F.3d 363 (D.C. Cir. 2020) ............................................................................ 10
iv
When the Commission sanctioned Dianne Hensley for recusing herself
from same-sex marriage ceremonies, it fired a warning shot to every judicial
officer in the state of Texas. The message sent by the Commission’s actions
against Judge Hensley was clear: Judicial officers in Texas will put them-
selves at risk of disciplinary proceedings unless they agree to perform same-
sex weddings on the same terms and conditions as opposite-sex marriages.
But now that Judge Umphress has sued the Commissioners for a declara-
tion of his rights, the Commission tries to pass off the Hensley sanction as a
one-off occurrence that turned on the unique factual record of that case—
and it claims that the Hensley episode therefore poses no “credible threat”
to Judge Umphress or any other judge who refuses to perform same-sex
weddings. But the Commission wants to play coy: It won’t go so far as to dis-
claim the possibility of future disciplinary proceedings against Judge Um-

phress. ROA.507-32. Instead, the Commission merely observes that it hasn’t
taken (or threatened) actions against Judge Umphress yet, while fully pre-
serving its right to do so at any time in the future.
The Commission wants the best of both worlds. It wants to keep the in
terrorem effects of the Hensley sanction by refusing to forswear future disci-
pline against Judge Umphress and other judges who won’t officiate at same-
sex weddings. But at the same time, the Commission wants to swat away pre-
enforcement lawsuits by claiming that it hasn’t yet initiated or threatened dis-
ciplinary actions against the plaintiff that sues. That is not an option under
the rules that govern pre-enforcement challenges. Once the Commission
1
sanctioned Judge Hensley, it opened the door to pre-enforcement lawsuits
brought by similarly situated judges, and it cannot defeat those claims merely
by observing that it has not yet acted against the specific plaintiff that filed
suit.
I. The District Court Misstated The Record By

Claiming That The Commission Had Promised Not
To Take Future Disciplinary Action Against
Judge Umphress Over The Conduct Described In
His Complaint
Our opening brief explained how the district court misdescribed the rec-
ord when it asserted that the Commission will not take any future enforce-
ment action against Judge Umphress. See Opening Br. at 13-15. The Commis-
sion’s filings in the district court showed only that they had not taken action
against Judge Umphress in the past, and that they were not planning to take
action against him at the time of the district-court proceedings. See id. (citing
ROA.63; ROA.174-175; ROA.492-493; ROA.569-570). Nothing in the record
establishes a commitment from the Commission not to investigate or disci-
pline Judge Umphress over the conduct he describes in his complaint.

The Commission agrees that the district court misstated the record in
this regard. See Answering Br. at 4; ROA.507-32. Indeed, the Commission
asked the district court to correct its statements claiming that the Commis-
sion had promised not to investigate or discipline Judge Umphress. See id.;
see also ROA.509 (“Several passages in the Court’s Amended Order might
inaccurately lead members of the public to believe that the Commission has
2
prejudged issues concerning Judge Umphress. It has not; and it would not
make any determinations about Judge Umphress’ current or future conduct
unless, and until, a proceeding against him were initiated.”). But the district
court brushed aside the Commission’s request, insisting that its opinion had
accurately described the Commission’s representations to the court, and it
sharply criticized the Commission for even asking the court to modify its
opinion so that it would accurately reflect what the Commission had actually
told the court. ROA.533-536; see also id. at 533 (describing the Commission’s
motion as “audacious”); id. at 536 (“[T]he Court is deeply disturbed by the
Motion.”).1
So the parties agree on this much: There has been no commitment that
the Commission will not investigate or discipline Judge Umphress in the fu-
ture over the conduct described in his complaint. The record reflects only
that the Commission has not initiated or threatened proceedings against
Judge Umphress in the past, and that it had no plans to do so at the time of
the district-court proceedings. That does not mean that the Commission
1. It is hard for us to understand why the district court would so strongly

rebuke the Commission for filing this motion, when it is clear (at least to
us) that the motivation for the Commission’s filing was to help protect
the district court from potential reversal on appeal, and to flag what the
Commission regarded as errors in the court’s opinion. Courts should
welcome the assistance of counsel in this regard, even when they ulti-
mately disagree with counsel’s assessment of the court’s work product,
and a court should not take umbrage if a party respectfully and deferen-
tially expresses its belief that the court has misdescribed the evidence in
the record.
3
“will not” take action against Judge Umphress, as the district court mistak-
enly asserted,2 and it does not mean that the Commission has “disclaimed”
future enforcement proceedings against Judge Umphress. ROA.516-519 (ask-
ing the district court to correct its repeated statements that the Commission
has “disclaimed” future actions against Judge Umphress). The district
court’s entire analysis of standing and ripeness rests on a false factual prem-
ise, and that alone is enough to warrant reversal of the district court’s ac-
tions.
The Commission, however, tries to salvage the district court’s ruling by
insisting that Judge Umphress lacks standing despite the Commission’s un-
willingness to disclaim the possibility of future investigation and discipline.
See Answering Br. at 4 (“[T]he district court’s statements with which Judge
Umphress takes issue . . . do not change the district court’s conclusion that
Judge Umphress has failed in his burden to show standing.”). That stance
cannot be squared with the test for pre-enforcement challenges established in
Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298 (1979), and
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014).
II. Judge Umphress Has Standing To Seek Pre-

Enforcement Relief
The test for standing to bring a pre-enforcement lawsuit has been clearly
set forth by the Supreme Court of the United States and reaffirmed in the
decisions of this Court. Under that test, a plaintiff must allege: (1) that he in-
2. ROA.494.
4
tends to engage in a course of conduct that is “arguably affected with a con-
stitutional interest”; (2) that his intended future conduct is “arguably pro-
scribed” by the law that he is challenging; and (3) a “credible threat”3 that
the challenged law will be enforced. See Susan B. Anthony List, 573 U.S. at
159; see also Babbitt, 442 U.S. at 298 (reciting the same three-part test);
Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020) (same).
The Commission’s brief does not even acknowledge this three-part test,
let alone apply it to the facts of this case.4 The Commission, for example,
does not deny that the conduct that Judge Umphress intends to engage in is
“arguably affected with a constitutional interest.” And it does not deny that
3. Courts have also said that plaintiffs in pre-enforcement lawsuits must

allege a “substantial” threat that challenged law will enforced against
them. See Susan B. Anthony List, 573 U.S. at 164; Speech First, 979 F.3d at
334-36. The opinions in Susan B. Anthony List and Speech First regard
the terms “credible threat” and “substantial threat” as interchangeable,
and so will we.
4. Instead, the Commission falsely asserts that Clapper v. Amnesty Inter-
naional USA, 568 U.S. 398 (2013), requires Judge Umphress to show
that a threatened prosecution against him is “certainly impending.” An-
swering Br. at 24-27. That is not the law, and the Court made abundantly
clear in Susan B. Anthony List that Clapper did not disturb or in any way
alter the standing test for pre-enforcement challenges that had been pre-
viously established in Babbitt. See Susan B. Anthony List, 573 U.S. at 159.
Clapper also makes clear (though in a footnote) that it is not overruling or
abrogating prior cases that require plaintiffs to show only a “substantial
risk” of future harm (rather than a “certainly impending” injury). See
Clapper, 568 U.S. at 414 n.5 (“Our cases do not uniformly require plain-
tiffs to demonstrate that it is literally certain that the harms they identify
will come about. In some instances, we have found standing based on a
‘substantial risk’ that the harm will occur”).
5
this conduct is “arguably proscribed” by Canon 4A(1). Indeed, the Commis-
sion does not even acknowledge or respond to Judge Umphress’s arguments
on these two issues. See Opening Br. at 16-17. The Commission has therefore
waived any possible arguments that could have been raised on these two
prongs of the Susan B. Anthony test. See Thole v. U.S. Bank N.A., 140 S. Ct.
1615, 1621-22 (2020) (indicating that a “theory of [Article III] standing” will
be forfeited when it is not “asserted” in an appellate court, and when the
pleadings do not “plausibly and clearly” set forth the factual basis for that
theory of standing).5
The Commission contests only the third prong of the Susan B. Anthony
test, by denying that Judge Umphress has alleged a “credible threat” of en-
forcement. See Answering Br. at 2 (“There is no ‘credible threat’ of the
Commission proceeding against him.”). As we understand the Commission’s

argument, it believes that Judge Umphress cannot satisfy the “credible
threat” requirement because: (1) The sanction imposed on Judge Hensley
5. It is possible that the Court will conclude that a finding of waiver is in-
appropriate because the Susan B. Anthony test is used to determine Arti-
cle III standing, which courts must resolve on their own initiative re-
gardless of a party’s failure to brief an issue. See Hamer v. Neighborhood
Housing Services of Chicago, 138 S. Ct. 13, 17 (2017) (“In contrast to the
ordinary operation of our adversarial system, courts are obliged to notice
jurisdictional issues and raise them on their own initiative.”); but see
Thole, 140 S. Ct. at 1621-22 (indicating that Article III standing argu-
ments can be forfeited if not sufficiently developed). But we are at loss
to think of any plausible basis for denying that Judge Umphress’s intend-
ed speech and conduct is “arguably affected with a constitutional inter-
est” and “arguably proscribed” by Canon 4A(1).
6
involved Hensley-specific facts that may or may not be present with other
judges;6 (2) Judge Umphress has not altered his conduct in response to the
“threats” that he perceives from the Commission’s actions against Judge
Hensley;7 and (3) The Commission has not threatened Judge Umphress spe-
cifically with investigation or disciplinary proceedings.8 None of this defeats
pre-enforcement standing, as it does not eliminate the “credible threat” that
the Commission directed at Judge Umphress (and other judicial officers in
Texas) when it sanctioned Judge Hensley in November of 2019.
A. The Factual Distinctions Between Judge Hensley And Judge

Umphress Do Not Eliminate A “Credible Threat” Of
Enforcement Action Against Judge Umphress
Judge Umphress is not required to show that the Commission will inves-
tigate or discipline him over his refusal to perform same-sex marriages. He
needs only to allege a “credible threat”9 or an “actual and well-founded
fear”10 that they might do so. When the Commission sanctioned Judge
Hensley and announced that her recusal-and-referral system violated the
“impartiality” requirement of Canon 4A(1), it established a “credible
threat” that any other judge who refuses to perform same-sex weddings—or
who engages in any type of speech or conduct that evinces disapproval of
6. See Answering Br. at 2, 6-7, 11, 12-13.

7. See Answering Br. at 20-21.
8. See Answering Br. at 21-22.
9. Susan B. Anthony List, 573 U.S. at 159; Babbitt, 442 U.S. at 298; Speech
First, 979 F.3d at 330.
10. Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988).
7
homosexual behavior—can be subject to discipline under the “impartiality”
canon. That is because there is nothing in the text of Canon 4A(1), and noth-
ing in the Commission’s order sanctioning Judge Hensley, that explains when
a judge may express opposition to same-sex marriage or homosexual conduct
without exposing himself to disciplinary proceedings. And it is not at all ap-
parent how far the Commission intends to go in enforcing the “impartiality”
canon against speech or conduct that offends the LGBTQ community. Once
the commission took the (dubious) step of equating a judge’s public disap-
proval of homosexual conduct with animus or bias against homosexual liti-
gants, there is no obvious stopping point when it comes to activities such as a

judge’s church membership or campaign speech. ROA.22-27. If opposition to
homosexual conduct is regarded as morally akin to racism, as the Commis-
sion appears to believe, then membership in a church that excludes practicing

homosexuals from membership is no less a breach of the “impartiality” can-
on than membership in a country club that excludes blacks. See In re Com-
plaint of Judicial Misconduct (Paine), 664 F.3d 332, 335 (U.S. Judicial Confer-
ence 2011).
The Commission tries to get around this problem by insisting that the
Hensley sanction was imposed after a “fact-intensive determination”11 that
was “based on the totality of the facts and circumstances,”12 and by observ-
ing that Judge Henlsey’s recusal-and-referral system involved unique factual
11. See Answering Br. at 6.

8
wrinkles that may or may not be applicable to Judge Umphress’s situation.
See Answering Br. at 12 (denying that “Judge Umphress’ . . . announced con-
duct” is “identical to that of Judge Hensley”); see also Answering Br. at 2, 6-
7, 11, 12-13 & n.32.
All of that is true—but none of that does anything to eliminate the “cred-
ible threat” of future enforcement action, and it does not remove (or even
mitigate) the “actual and well-founded fear” that Judge Umphress could be
subject to investigation or disciplinary proceedings. The Commission has re-
fused to disclaim the possibility of future enforcement action in response to
Judge Umphress’s conduct,13 and it refuses to say whether Canon 4A(1) per-
mits the conduct that Judge Umphress describes in his complaint. See An-
swering Br. at 11 (“It would be pure conjecture to speculate how the Com-
mission would decide such a matter if and when presented.”). The Commis-
sion has said only that it has not investigated or disciplined Judge Umphress
yet, and that it has no present-day intentions of doing so. It has not disavowed
the prospect of enforcing Canon 4A(1) against Judge Umphress and other
judges who refuse to perform same-sex weddings. And it has not disavowed
the prospect of enforcing Canon 4A(1) against judges who criticize same-sex
marriage in their campaign speech or belong to churches that oppose homo-
sexual conduct. The Commission wants to keep Judge Umphress (and these
other judges) under the cloud of uncertainty it has generated by disciplining
13. ROA.507-32.
9
Judge Hensley while refusing to announce the extent to which Canon 4A(1)
will be enforced against other judges who publicly oppose same-sex marriage
on account of their religious faith. That is all Judge Umphress needs to estab-
lish a “credible threat” (or an “actual and well-founded fear”) of enforce-
ment. See Babbitt v. United Farm Workers National Union, 442 U.S. 289, 302
(1979) (holding that a union’s fear of prosecution was not imaginary or spec-
ulative when “the State has not disavowed any intention of invoking the
criminal penalty provision against unions that commit unfair labor practic-
es.”); Holder v. Humanitarian Law Project, 561 U.S. 1, 15-16 (2010) (confer-
ring standing to bring a pre-enforcement claim when the government en-

forced the disputed statutory terms against others and when “the Govern-
ment has not argued to this Court that plaintiffs will not be prosecuted if they
do what they say they wish to do.”); see also Woodhull Freedom Foundation v.
United States, 948 F.3d 363, 373 (D.C. Cir. 2020) (“[T]here is also ample
reason to conclude that the threat of future enforcement against Andrews is
substantial [because] [t]he Department of Justice has not disavowed any in-
tention of invoking the criminal penalty provision against individuals who
operate [similar] websites” (citation and internal quotation marks omitted));
id. (“The Department has yet to disavow any intention to prosecute an indi-
vidual or organization that operates a sex worker-led forum about topics like
PayPal. And although the Department has maintained in the instant litigation
that plaintiffs’ intended conduct is not proscribed by Section 2421A, there is
10
nothing that prevents the [Department] from changing its mind” (citation
and internal quotation marks omitted)).14
The Commission also observes that the Hensley sanction listed “findings
of fact” unique to Judge Hensley’s situation, such as the existence of her re-
ferral system and the fact that her refusal to perform same-sex weddings had
been reported in a local newspaper. See Answering Br. at 7, 12-13 & n.32;
ROA.32-33. But nothing in the Commission’s sanction says (or even implies)
that any of these facts were outcome-determinative, and there is no basis in
reason to believe that the Commission would have acquitted Judge Hensley
in the absence of those Hensley-specific facts. More importantly, the Com-

mission has not said—either in the record or in its appellate-court briefing—
that judges can safely refuse to perform same-sex weddings while continuing
to officiate at opposite-sex marriages, so long as they avoid some or all of the

“Hensley factors” that are mentioned in the Commission’s brief. Indeed, the
14. See also Green Party of Tennessee v. Hargett, 791 F.3d 684, 696 (6th Cir.
2015) (“While defendants have not enforced or threatened to enforce
this statute against plaintiffs or any other political party, they also have
not explicitly disavowed enforcing it in the future.”); New Mexicans for
Bill Richardson v. Gonzales, 64 F.3d 1495, 1501-02 (10th Cir. 1995)
(“Guided by the Supreme Court’s analysis in Babbitt,1 we conclude
Congressman Richardson’s fears of prosecution are reasonable and sup-
port a finding of ripeness. The record before us contains no affirmative
evidence that prosecution for violating the statute is imminent. Howev-
er, New Mexico has not affirmatively disavowed any intention of bring-
ing criminal prosecution against Congressman Richardson should he
spend federally raised money for pre-announcement activities for state
elective office or if he should spend federally raised money in support of
another individual’s state campaign.” (footnotes omitted)).
11
Commission’s insistence that every application of Canon 4A(1) is “fact-
intensive,” and its refusal to provide clear guidance on how the “impartiali-
ty” canon will be applied to judges with sincere religious objections to homo-
sexual conduct and same-sex marriage, only aggravates the Article III injury
imposed on judges who have no way of knowing whether their speech or
conduct will land them in trouble with the Commission—and it only ampli-
fies the need for pre-enforcement review. As this Court has eloquently ex-
plained:
To insist that a person must break the law in order to test its
constitutionality is to risk punishing him for conduct which he
may have honestly thought was constitutionally protected. Not
only is this prima facie unfair, but it discourages people from en-
gaging in protected activity and enforcing constitutional rights.
International Society for Krishna Consciousness of Atlanta v. Eaves, 601 F.2d
809, 821 (5th Cir. 1979).
B. Judge Umphress’s Refusal To Self-Censor Does Not

Eliminate The “Credible Threat” Created By The
Commission’s Discipline Of Judge Hensley
The Commission continues to insist that Judge Umphress must change
his behavior in response to the Commission’s threats as a condition of estab-
lishing Article III standing. See Answering Br. at 20 (“[H]is conduct remains
undeterred.”); id. (“[O]ne has the burden to show one has been “deterred”
from acting.”). The Commission is wrong. The relevant “injury” is the fear
of being subject to disciplinary proceedings for engaging in speech or con-

duct—and that injury exists regardless of whether a plaintiff succumbs to
12
those fears or forges ahead and dares the Commission to act. The authorities
cited in our opening brief make this clear, yet the Commission ignores them.
See Opening Br. at 26-28; see also Suhre v. Haywood County, 131 F.3d 1083,
1089 (4th Cir. 1997) (“[C]hanged behavior is not necessary for purposes of
standing.”). In Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383
(1988), for example, the Supreme Court conferred pre-enforcement standing
on a booksellers association even though it had not been threatened with
prosecution, and even though it had not changed its behavior in response to
the disputed statute. As the court of appeals explained:
[T]here has been no proof that the Booksellers have been pros-
ecuted, threatened with prosecution, or have detrimentally
changed their behavior as a result of the amendment.
American Booksellers Ass’n, Inc. v. Virginia, 802 F.2d 691, 693 (4th Cir. 1986)
(emphasis added)). But the Supreme Court conferred standing anyway, hold-
ing that the mere “danger . . . of self-censorship” sufficed to establish Article
III injury—regardless of whether the plaintiff actually self-censored in re-
sponse to the threat. American Booksellers Ass’n, 484 U.S. at 393 (emphasis
added); see also Speech First Inc. v. Fenves, 979 F.3d 319, 336 (5th Cir. 2020).
C. A “Credible Threat” Of Enforcement Exists Even If The

Commission Has Not Specifically Threatened Judge
Umphress
Finally, the Commission reiterates the district court’s argument that
Judge Umphress must allege a threat of enforcement directed at him specifi-

cally. See Answering Br. at 21-22. But a litigant is not required to show that he
13
has been directly threatened with prosecution or disciplinary action; he
needs only to allege a “credible threat” or an “actual and well-founded fear”
that he might be subject to enforcement proceedings. See supra at notes 9-10
and accompanying text. A “credible threat” can arise from the government’s
prosecution of others, even if the plaintiff himself has never been prosecuted
or directly threatened by the authorities. See Doe v. Bolton, 410 U.S. 179
(1973); Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019); Lopez v.
Candaele, 630 F.3d 775, 786 (9th Cir. 2010) (“[A] threat of government pros-
ecution is credible if . . . there is a history of past prosecution or enforcement
under the challenged statute.” (citation and internal quotations omitted)).

And the Commission’s actions against Judge Hensley are all that is needed to
establish a “credible threat” that Judge Umphress (and other judicial offic-
ers) might face sanctions under Canon 4A(1) for speech or conduct that
evinces disapproval of same-sex marriage or homosexual conduct—
especially when the Commission refuses to disavow the possibility of enforc-
ing Canon 4A(1) against them.
Consider once again the Supreme Court’s ruling in American Booksellers.
The court of appeals recognized that the plaintiffs in that case had never
been prosecuted or even threatened with prosecution under the statute. See
American Booksellers Ass’n, Inc. v. Virginia, 802 F.2d 691, 693 (4th Cir. 1986)
(“[T]here has been no proof that the Booksellers have been prosecuted,
threatened with prosecution, or have detrimentally changed their behavior as a
result of the amendment.” (emphasis added)). Yet the Supreme Court al-
14
lowed the pre-enforcement challenge, because the plaintiffs had alleged a
credible fear of prosecution despite the absence of a specific threat. See Amer-
ican Booksellers Ass’n, 484 U.S. at 393. Consider also the Second Circuit’s
ruling in Quill v. Vacco, 80 F.3d 716 (2d Cir. 1996), rev’d on other grounds, Vac-
co v. Quill, 521 U.S. 793 (1997), which allowed doctors to bring a pre-
enforcement challenge over a statute outlawing physician-assisted suicide,
even though the district attorney said that he would not bring criminal charg-
es against them. Id. at 723. In the court’s view, it was enough that the district
attorney had criminally prosecuted a non-physician for helping his wife com-
mit suicide under an entirely different criminal statute:
Although District Attorney Morgenthau argues in his brief on

appeal that appellants have not shown that they are in any jeop-
ardy of prosecution in New York County, a recent indictment by
a New York County grand jury demonstrates the contrary. A
newspaper report printed on December 15, 1995 disclosed the
following: ‘Yesterday, District Attorney Robert M. Morgenthau
of Manhattan announced that a grand jury had indicted
[George] Delury, an editor who lives on the Upper West Side,
on manslaughter charges for helping his 52-year-old wife, Myrna
Lebov, commit suicide last summer.’ Carey Goldberg, Suicide’s
Husband Is Indicted; Diary Records Pain of 2 Lives, N.Y. Times,
Dec. 15, 1995, at B1. The physician plaintiffs have good reason
to fear prosecution in New York County.
Id. at 723 (2d Cir. 1996), rev’d on other grounds, Vacco v. Quill, 521 U.S. 793
(1997) (footnote omitted). And the Commission wants to contend that its de-
cision to sanction Judge Hensley does not give Judge Umphress “reason to
fear” potential disciplinary action?
15
The Commission also tries to accuse Judge Umphress of relying on “al-
leged injuries to others,”15 but that claim is baseless. Judge Umphress is not
asserting third-party standing when he invokes the Commission’s actions
against Judge Hensley; he is using that episode to show that he has “an actual
and well-founded fear” of possible disciplinary action—a fear that inflicts
Article III injury on him and which authorizes his pre-enforcement lawsuit.
III. Judge Umphress Has Brought A Facial Vagueness

Challenge To Canon 4A(1), And He Has Preserved
The Possibility Of Facial Relief On His First
Amendment Claims
The Commission spends a considerable amount of ink on whether Judge
Umphress has preserved a “facial” challenge to Canon 4A(1),16 but this issue
is largely a sideshow because Judge Umphress has standing to seek pre-
enforcement relief regardless of whether he is seeking “facial” or “as-
applied” remedies. See Opening Br. at 29-31. The Commission does not ap-
pear to believe that anything turns on the facial vs. as-applied distinction. It
does not, for example, concede that Judge Umphress would have standing to
seek a facial remedy against the enforcement of Canon 4A(1), although it
correctly observes that it is somewhat easier to establish pre-enforcement
standing when launching a “facial” rather than an as-applied challenge under
the First Amendment. See Answering Br. at 22 (citing Speech First, 979 F.3d
at 334-35). But Judge Umphress has established a “credible threat” and an

16. See Answering Br. at 10-11, 14-18.
16
“actual and well-founded fear” that the Commission might enforce Canon
4A(1) against him, because he (like Judge Hensley) refuses to officiate at
same-sex weddings while continuing to perform opposite-sex ones, and the
Commission has already sanctioned Judge Hensley for engaging in materially
indistinguishable conduct. Judge Umphress has also established a “credible
threat” and an “actual and well-founded fear” that the Commission might
enforce Canon 4A(1) against other forms of speech and conduct that evince
disapproval of same-sex marriage and homosexual conduct, because the
“impartiality” canon is exceedingly vague and the Commission has given no
indication of how far it will go in enforcing the canon against speech or con-
duct that offends the LGBTQ community.
This issue matters only because the district court claimed that it need not
follow Speech First because the plaintiffs in that case had brought a facial chal-
lenge to the University of Texas’s speech codes, whereas Judge Umphress
(in the district court’s view) was seeking only as-applied relief against the en-
forcement of Canon 4A(1). ROA.498 n.6. Our opening brief explained that
the district court was wrong to characterize Judge Umphress’s claims this
way. The vagueness challenge to Canon 4A(1) was pleaded as a facial claim,
and Judge Umphress has at least preserved the possibility of facial relief on
his First Amendment claims even though he has not (yet) asked for that rem-
edy. See Opening Br. at 19-21. The Commission claims that Judge Umphress
conceded in his district-court briefing that he “has not challenged Canon
17
4A(1) on its face,”17 but that quote was referring only to the First Amend-
ment claims and not the vagueness challenge. And even if Judge Umphress
had expressly disavowed a facial remedy in his district-court briefing, that
concession would not preclude him from seeking and obtaining facial relief
on appeal, as Citizens United v. Federal Election Commission, 558 U.S. 310, 333
(2010), and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2307
(2016), make clear.
IV. Judge Umphress’s Claims Are Ripe

The Commission denies that Judge Umphress’s claims are ripe, but it
never acknowledges the test for ripeness from Abbott Laboratories v. Gardner,
387 U.S. 136 (1967), and it makes no effort to apply that test to the facts of
this case. See Answering Br. at 27-28. In determining whether a claim is ripe,
a Court must consider: (1) “the fitness of the issues for judicial decision,”
and (2) “the hardship to the parties of withholding court consideration.” Ab-
bott Laboratories, 387 U.S. at 149. And a party that opposes ripeness must ex-
plain how the claims fail to satisfy either (or both) of these two prongs. Yet
the Commission never explains how the issues in this case are not “fit for ju-
dicial decision.” And it does not even attempt to deny that there will be
“hardship” to Judge Umphress (and others) from withholding pre-
enforcement review.
17. Answering Br. at 16 n.38 (quoting ROA.391).
18
The issues in this case are fit for judicial review because they present
pure questions of law. See Susan B. Anthony List, 573 U.S. at 167 (finding the
“fitness” factor to be “easily satisfied” because “petitioners’ challenge to
the Ohio false statement statute presents an issue that is ‘purely legal, and
will not be clarified by further factual development.’”). The Commission
complains that the facts are “purely hypothetical and speculative,”18 but they
are nothing of the sort. It is undisputed that Judge Umphress refuses to per-
form same-sex weddings while continuing to officiate at opposite-sex mar-
riage ceremonies. And it is undisputed that he attends a church that adheres
to Biblical teaching and regards marriage as an institution that can exist only
between one man and one woman. And it is undisputed that Judge Umphress
intends to campaign for re-election in 2022 as an opponent of same-sex mar-
riage and the Supreme Court’s ruling in Obergefell v. Hodges, 576 U.S. 644
(2015). All the Court needs to do is determine whether Canon 4A(1) can be
enforced against this conduct consistent with the Constitution. A purer ques-
tion of law would be hard to imagine.
And the Commission’s appellate brief only confirms the “hardship” that
will be imposed on Judge Umphress (and others) from a denial of pre-
enforcement review, as it refuses to take a position on the meaning of Canon
4A(1) or the Commission’s intentions with regard to its enforcement. A find-
ing of unripeness will perpetuate the in terrorem effects of the Commission’s
18. Answering Br. at 28.
19
disciplinary actions against Judge Hensley, and it will force every judicial of-
ficer in Texas who opposes same-sex marriage to choose between self-
censorship and the risk of future disciplinary action. See Susan B. Anthony
List, 573 U.S. at 167-68 (“Denying prompt judicial review would impose a
substantial hardship on petitioners, forcing them to choose between refrain-
ing from core political speech on the one hand, or engaging in that speech
and risking costly Commission proceedings and criminal prosecution on the
other.”). The Commission does not even address this aspect of the ripeness
inquiry.
V. The District Court Erred In Concluding That

Pullman Abstention Was Warranted
The Commission claims that Texas Democratic Party v. Abbott, 961 F.3d
389 (5th Cir. 2020), supports its argument for Pullman abstention, and it
scolds us for not acknowledging that case in our opening brief. See Answering
Br. at 32, 34-35 & n.71. But this Court did not rule on the Pullman abstention
issue in that case; the Court held that the Pullman issue had become moot:
In addition to their jurisdictional points, the state officials main-

tain that the district court should have abstained under Railroad
Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). Be-
cause the Texas Supreme Court has since ruled in the state offi-
cials’ favor as to the meaning of “disability” under the Texas
Election Code, that issue is moot.
Texas Democratic Party, 961 F.3d at 397 n.13 (emphasis added). Although the
Court went on to state that “[t]he district court’s reasons for not abstaining
are suspect,” id., that statement is (at best) dictum, and (at worst) an adviso-
20
ry opinion, where the Court is weighing in on an issue that it had no jurisdic-
tion to address. It does not have precedential authority of any sort.
Texas Democratic Party is also readily distinguishable from the situation in
this case. The district court in Texas Democratic Party ruled one day before the
Supreme Court of Texas was hearing argument on a mandamus petition that
could have rendered any federal constitutional ruling unnecessary. See Texas
Democratic Party, 961 F.3d at 417 (Costa, J., concurring in the judgment); see
also id. (“This was a textbook case for Pullman abstention.”). In other words,
the state-law issue had already arrived at the state supreme court, which was
prepared to promptly resolve the state-law issue on a state-wide basis. In this

case, the Hensley state-court litigation remains stuck in the Travis County
district court, and there is no imminent prospect of a state supreme court
ruling that can shield Judge Umphress and similarly situated judges through-
out Texas. See Hobbs v. Thompson, 448 F.2d 456, 462 (5th Cir. 1971) (“While
patience can sometimes be a jurisprudential virtue, courts have recognized
that it must not be a frustrator or nullifier of First Amendment rights.”).
The Commission also insists that courts “ordinarily should” abstain
whenever the three-part test for Pullman abstention is satisfied, and it cites
United Home Rentals, Inc. v. Texas Real Estate Commission, 716 F.2d 324, 331
(5th Cir. 1983), to support this claim. See Answering Br. at 34. But the law of
this circuit and the rulings of the Supreme Court have made clear that cases
involving First Amendment claims are not part of the “ordinary” course of
business when it comes to Pullman abstention—and that courts “ordinarily
21
should” reject abstention requests when First Amendment rights are at stake.
See Opening Br. at 37-45. The Commission cannot make those authorities
disappear by citing a passage from United Home Rentals, which does not even
discuss the implications for applying Pullman abstention to First Amendment
claims. The law of this circuit and the Supreme Court’s cases also require
courts to consider Pullman abstention on a case-by-case basis, and weigh the
benefits of abstention against the costs of delaying resolution of the litigants’
constitutional claims. See Opening Br. at 45-48. That remains the case even
when the three Pullman abstention factors are satisfied, and it is incompatible
with the Commission’s insistence on a mechanized and truncated process

that considers only the traditional Pullman formulation.
The Commission also attacks this Court’s opinion in Moreno v. Henckel,
431 F.2d 1299 (5th Cir. 1970), which declared that “abstention serves no le-
gitimate purpose when the state action has a ‘chilling effect’ on First
Amendment rights.” Id. at 1309 (citing Dombrowski v. Pfister, 380 U.S. 479
(1965)). The Commission complains that Moreno overread the Supreme
Court’s opinion in Dombrowski, and it insists that Dombrowski did not go so
far as to claim that abstention is categorically improper when First Amend-
ment rights are at stake. See Answering Br. at 32-33. But there is plenty of
language in Dombrowski that supports the categorical statement in Moreno.
See Dombrowski, 380 U.S. at 489-90 (“We hold the abstention doctrine is in-
appropriate for cases such as the present one where . . . statutes are justifiably
attacked on their face as abridging free expression, or as applied for the purpose
22
of discouraging protected activities.” (emphasis added)). And even if the Com-
mission were right to accuse Moreno of overreading Dombrowski, that does
not cancel Moreno’s status as a binding precedent of this Court, and it does
nothing to undermine the numerous other authorities from this Court that
categorically disfavor Pullman abstention in First Amendment cases. See Lou-
isiana Debating & Literary Ass’n v. City of New Orleans, 42 F.3d 1483, 1492
n.12 (5th Cir. 1995) (“Although Red Bluff involved a facial challenge to a stat-
ute, the court’s recognition that abstention may result in a high cost to First
Amendment rights is applicable in this case, despite being an as-applied chal-
lenge.”); see also Opening Br. at 39-40 (citing authorities).

Finally, the Commission invokes the abuse-of-discretion standard in an
effort to shield the district court’s Pullman analysis from reversal. See An-
swering Br. at 30, 37. But an error of law is a per se abuse of discretion,19 and
the district court never so much as mentioned the rule disfavoring Pullman
abstention in First Amendment cases,20 even though this point was vigorous-
ly argued and the authorities set forth in Judge Umphress’s brief. ROA.384-
395. The district court’s disregard and refusal to acknowledge the authorities
disfavoring Pullman abstention is an error of law and an abuse of discretion,
as is its refusal to consider the First Amendment interests in its Pullman
analysis.
19. See Arete Partners, L.P. v. Gunnerman, 643 F.3d 410, 412 (5th Cir. 2011)
(“A district court abuses its discretion when its ruling is based on an er-
roneous view of the law . . .”).
20. ROA.502-506.
23
***
If the Commission’s argument were accepted by this Court, it would es-
tablish a cat-and-mouse game in which the Commission remains free to dis-
cipline any individual judge for evincing “bias” by refusing to officiate at
same-sex marriages or expressing disapproval of homosexual behavior, while
simultaneously retaining the power to defeat any pre-enforcement lawsuit by
claiming that it hasn’t threatened that particular judge with discipline and by
pointing to factual distinctions (which will always be present) between the
pre-enforcement litigant’s situation and the facts surrounding the previously
disciplined judge. A regime of this sort would never be tolerated in any other
context—not in cases involving abortion rights,21 not in cases challenging
laws against doctor-assisted suicide,22 and not with regard to any First
Amendment activity other than speech or conduct that offends the LGBTQ
community.23
The Commission wants the federal judiciary to create a new allowance
for governmental entities to deter disfavored speech and conduct by firing
occasional shots across the bow while insulating its threats from pre-
21. See Doe v. Bolton, 410 U.S. 179, 188 (1973).

22. See Quill v. Vacco, 80 F.3d 716, 723 (2d Cir. 1996), rev’d on other grounds,
Vacco v. Quill, 521 U.S. 793 (1997).
23. See Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988);
New York Republican State Committee v. SEC, 799 F.3d 1126, 1135-36
(D.C. Cir. 2015) (“For many decades, the courts have shown special so-
licitude to pre-enforcement challenges brought under the First Amend-
ment”).
24
enforcement review and forcing everyone to choose between self-censorship
and exposure to possible future enforcement proceedings. But the estab-
lished rules governing pre-enforcement challenges are not subject to a “polit-
ical correctness exception,”24 and they do not allow the Commission to keep
judicial officers guessing as to whether they can recuse themselves from
same-sex weddings under the First Amendment or the Commission’s shift-
ing and “fact-specific”25 applications of Canon 4A(1).
CONCLUSION
The judgment should be vacated, and the case remanded for further pro-
ceedings.
Respectfully submitted.
/s/ Jonathan F. Mitchell

H. Dustin Fillmore III Jonathan F. Mitchell
Charles W. Fillmore Mitchell Law PLLC
The Fillmore Law Firm, LLP 111 Congress Avenue, Suite 400
201 Main Street, Suite 801 Austin, Texas 78701
Fort Worth, Texas 76102 (512) 686-3940 (phone)
(817) 332-2351 (phone) (512) 686-3941 (fax)
(817) 870-1859 (fax) jonathan@mitchell.law
dusty@fillmorefirm.com
chad@fillmorefirm.com
Dated: April 20, 2021 Counsel for Plaintiff-Appellant
24. City of Chicago v. Morales, 527 U.S. 41, 81 (1999) (Scalia, J., dissenting)
(internal quotation marks omitted).
25. Answering Br. at 10, 18.
25
CERTIFICATE OF SERVICE
I certify that on April 20, 2021, this document was electronically filed
with the clerk of the court for the U.S. Court of Appeals for the Fifth Circuit
and served through CM/ECF upon:
Douglas S. Lang Ross G. Reyes

Dorsey & Whitney LLP Littler Mendelson, PC
300 Crescent Court, Suite 400 2001 Ross Avenue, Suite 1500, LB 116
Dallas, Texas 75201 Dallas, Texas
(214) 981-9985 (phone) (214) 880-8138 (phone)
lang.doug@dorsey.com rgreyes@littler.com
David Schleicher Roland K. Johnson

Schleicher Law Firm, PLLC Harris Finley & Bogle, P.C.
424 Clay Avenue # 32688 777 Main Street, Suite 1800
Waco, Texas 76712 Fort Worth, Texas 76102
(254) 776-3939 (phone) (817) 870-8765 (phone)
(254) 776-4001 (fax) (817) 333-1199 (fax)
ecf@resolvelaw.com rolandjohnson@hfblaw.com
Counsel for Defendants-Appellees

Jonathan F. Mitchell
Counsel for Plaintiff-Appellant
26
CERTIFICATE OF COMPLIANCE
with type-volume limitation, typeface requirements,
and type-style requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P.

27(d)(2) because it contains 6,438 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(f ).
2. This brief complies with the typeface and type-style requirements of

Fed. R. App. P. 27(d)(1)(E), 32(a)(5), and Fed. R. App. P. 32(a)(6) be-
cause it uses Equity Text B 14-point type face throughout, and Equity
Text B is a proportionally spaced typeface that includes serifs.

Dated: April 20, 2021 Counsel for Plaintiff-Appellant
27
CERTIFICATE OF ELECTRONIC COMPLIANCE

Counsel also certifies that on April 20, 2021, this brief was transmitted to
Mr. Lyle W. Cayce, Clerk of the United States Court of Appeals for the Fifth
Circuit, through the court’s CM/ECF document filing system,
https://ecf.ca5.uscourts.gov/
Counsel further certifies that: (1) required privacy redactions have been
made, 5th Cir. R. 25.2.13; (2) the electronic submission is an exact copy of
the paper document, 5th Cir. R. 25.2.1; and (3) the document has been
scanned with the most recent version of VirusTotal and is free of viruses.

Counsel for Plaintiff-Appellant
28

USCA Reply BR

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

USCA Reply BR

Uploaded by

Copyright:

Available Formats

Case: 20-11216 Document: 00515831769 Page: 1 Date Filed: 04/21/2021

In the United States Court of Appeals for the Fifth Circuit

Brian Keith Umphress,

On Appeal from the United States District Court

REPLY BRIEF OF APPELLANT BRIAN KEITH UMPHRESS

H. Dustin Fillmore III Jonathan F. Mitchell

International Society for Krishna Consciousness of Atlanta v. Eaves,

Virginia v. American Booksellers Ass’n, Inc.,

When the Commission sanctioned Dianne Hensley for recusing herself

from same-sex marriage ceremonies, it fired a warning shot to every judicial

selves at risk of disciplinary proceedings unless they agree to perform same-

sex weddings on the same terms and conditions as opposite-sex marriages.

claim the possibility of future disciplinary proceedings against Judge Um-

serving its right to do so at any time in the future.

terrorem effects of the Hensley sanction by refusing to forswear future disci-

enforcement lawsuits by claiming that it hasn’t yet initiated or threatened dis-

the rules that govern pre-enforcement challenges. Once the Commission

sanctioned Judge Hensley, it opened the door to pre-enforcement lawsuits

I. The District Court Misstated The Record By

ROA.63; ROA.174-175; ROA.492-493; ROA.569-570). Nothing in the record

establishes a commitment from the Commission not to investigate or disci-

pline Judge Umphress over the conduct he describes in his complaint.

this regard. See Answering Br. at 4; ROA.507-32. Indeed, the Commission

make any determinations about Judge Umphress’ current or future conduct

accurately described the Commission’s representations to the court, and it

motion as “audacious”); id. at 536 (“[T]he Court is deeply disturbed by the

1. It is hard for us to understand why the district court would so strongly

future enforcement proceedings against Judge Umphress. ROA.516-519 (ask-

has “disclaimed” future actions against Judge Umphress). The district

The Commission, however, tries to salvage the district court’s ruling by

cannot be squared with the test for pre-enforcement challenges established in

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014).

II. Judge Umphress Has Standing To Seek Pre-

tends to engage in a course of conduct that is “arguably affected with a con-

3. Courts have also said that plaintiffs in pre-enforcement lawsuits must

this conduct is “arguably proscribed” by Canon 4A(1). Indeed, the Commis-

sion does not even acknowledge or respond to Judge Umphress’s arguments

be forfeited when it is not “asserted” in an appellate court, and when the

forcement. See Answering Br. at 2 (“There is no ‘credible threat’ of the

Commission proceeding against him.”). As we understand the Commission’s

threat” requirement because: (1) The sanction imposed on Judge Hensley

“threats” that he perceives from the Commission’s actions against Judge

cifically with investigation or disciplinary proceedings.8 None of this defeats

pre-enforcement standing, as it does not eliminate the “credible threat” that

the Commission directed at Judge Umphress (and other judicial officers in

Texas) when it sanctioned Judge Hensley in November of 2019.

A. The Factual Distinctions Between Judge Hensley And Judge

tigate or discipline him over his refusal to perform same-sex marriages. He

needs only to allege a “credible threat”9 or an “actual and well-founded

Hensley and announced that her recusal-and-referral system violated the

“impartiality” requirement of Canon 4A(1), it established a “credible

who engages in any type of speech or conduct that evinces disapproval of

6. See Answering Br. at 2, 6-7, 11, 12-13.

homosexual behavior—can be subject to discipline under the “impartiality”

a judge may express opposition to same-sex marriage or homosexual conduct

without exposing himself to disciplinary proceedings. And it is not at all ap-

parent how far the Commission intends to go in enforcing the “impartiality”

proval of homosexual conduct with animus or bias against homosexual liti-

gants, there is no obvious stopping point when it comes to activities such as a

homosexual conduct is regarded as morally akin to racism, as the Commis-

sion appears to believe, then membership in a church that excludes practicing

on than membership in a country club that excludes blacks. See In re Com-