A constitutional question is swirling over Rosie Speedlin Gonzalez, who in law school, was told how women were supposed to dress.

Speedlin Gonzalez had played along, wearing skirt suits, panty hose and makeup to participate in oral advocacy competitions.

Out of law school, she had ditched that garb for what made her comfortable: tailored pant suits and short hair.

But now, some of her clothing and personal items have resulted in a private warning for the judge, who by the time she ran for and won election to Bexar County Court-at-Law No. 13, was fully comfortable publicly presenting her authentic identity as a lesbian woman.

Bexar County Court-at-Law No. 13 Judge Rosie Speedlin Gonzalez of San Antonio, Texas. Courtesy photo

The voters had accepted her.

"I lived authentically. I wasn't hiding who I was," she said. "I could sleep better at night."

Around the time she took the bench in 2019, Orgullo de San Antonio—the local LGBT Chapter of the League of United Latin American Citizens—presented the judge with a standard-sized rainbow flag—a symbol of lesbian, gay, bisexual, transgender and queer pride and equality.

Speedlin Gonzalez displayed it in her courtroom to the left of her bench.

"Everyone is welcome into this courtroom. That was the symbolism behind that flag," she said.

But, after getting sanctioned, Speedlin Gonzalez is gearing up for a legal fight over her rainbow flag.

Impartiality

The judge's attorney, Deanna Whitley, said the Texas Commission on Judicial Conduct issued a private warning to Speedlin Gonzalez that said that displaying the rainbow flag created an appearance in the public's mind that the judge lacked impartiality.

Canon 2 of the Texas Code of Judicial Conduct requires a judge to avoid the appearance of impropriety. It says a judge must comply with the law and always act in a way that "promotes public confidence in the integrity and impartiality of the judiciary."

Speedlin Gonzalez is appealing the sanction.

The private warning doesn't appear on the commission's website. Whitley said she couldn't provide a copy to Texas Lawyer because of the impending appeal.

The commission's rules call for strict confidentiality for private sanctions.

"I cannot confirm or deny any of the information that the judge's attorney has provided you or that a private sanction was issued by the Commission," Jacqueline Habersham, the judicial conduct commission's executive director, said via email.

But Speedlin Gonzalez argues that her case raises freedom-of-speech issues.

In addition to telling her to remove her rainbow flag, the judge said the commission told her that she needed to stop using a rainbow pen on the bench, get rid of her rainbow mouse pad, and stop wearing a robe with a quarter-inch strip of varape, a colorful Mexican blanket design.

"The pen and the strip on my robe did not even follow the sequence of the rainbow. It was just colorful," she said. "We feel they overreached. … I'm looking for some boundaries and parameters, all the way around."

Speedlin Gonzalez said one San Antonio judge, who is a veteran, wears a camouflage robe on the bench. A different judicial colleague, who is Irish, has displayed his native country's flag in his courtroom. If the commission disciplines her for a rainbow flag, it must mete out equal discipline to other judges who display different symbols in court, she said.

Whitley, the judge's attorney, said that she believes the judicial ethics rule about creating public perception of a judge's impartiality is unconstitutional.

"Elected officials, including judges, have a First Amendment right, which they do not forfeit upon election," said Whitley. "If the commission is going to enforce these issues, it should not be limited to an LGBTQ judge. It should be across the board."

Judges give up some independence

That is a good argument, said First Amendment litigator Chip Babcock.

If the commission had a legitimate reason to ban all Texas judges from having any flag or display, beyond the national and state flags, then maybe the regulation would be okay, said Babcock, partner in Jackson Walker in Houston.

"Singling out a symbol or flag for display because of its content, that violates the First Amendment," he said.

But Lillian Hardwick, an Austin judicial ethics solo practitioner, said jurists implicitly agree to abide by the Texas Code of Judicial Conduct when they take the bench.

"The reality is judges do give up some measure of independence when they agree to be a judge," she said.

San Antonio solo practitioner Flavio Hernandez, who filed the complaint that lead to Speedlin Gonzalez's sanction, said that a judge must remain neutral.

Hernandez said he was offended by the rainbow flag, and would have been equally offended by a judge displaying a symbol of white supremacy, like a swastika or confederate flag.

"When I present myself and my clients in a court of law, I am submitting myself and my clients under the authority of the laws of Texas and the laws of the United States," he said. "I think a judge bringing in symbols of sexuality—regardless of what kind of sexuality—I think that has no place in the courtroom."