Off the Kuff Rotating Header Image

February 28th, 2014:

Friday random ten: My gayest list ever

In honor of Wednesday’s epic ruling invalidating Texas’ Double Secret Illegal Anti-Gay Marriage law, here’s a supersized list celebrating the LGBTQ artists in my collection:

1. We Are The Champions – Queen
2. The Consequences of Falling – k.d. lang
3. I Don’t Know What It Is – Rufus Wainwright
4. Take Me To The Pilot – Elton John
5. Bring Me Some Water – Melissa Etheridge
6. Tainted Love – Soft Cell
7. Closer To Fine – Indigo Girls
8. October – Kings
9. Tonight – George Michael
10. YMCA – The Village People
11. Driver Eight – R.E.M.
12. West End Girls – Pet Shop Boys
13. Cosmic Thing – The B-52’s
14. Born To Run – Frankie Goes To Hollywood
15. Gobbledigook – Sigur Ros

Some mighty fine tunes in there, if you ask me. This list was helpful to me in putting my own list together, and of course there’s always Wikipedia. Who’s on your list?

Next steps in the Texas same sex marriage lawsuit

In case you were wondering, Attorney General and candidate for Governor Greg Abbott will appeal Wednesday’s historic ruling striking down Texas’ constitutional amendment barring same sex marriage.

The state of Texas has officially given notice that it is appealing a San Antonio judge’s ruling that completely struck down its ban on same sex marriage.

“Defendants … Rick Perry, Greg Abbott, and David Lakey … hereby appeal to the United States Court of Appeals for the Fifth Circuit from the Order Granting Plaintiffs’ Motion for Preliminary Injunction, signed and entered in this action on February 26, 2014 ,” said the state’s notice, filed in federal court in San Antonio on Thursday.

Abbott’s statement is here. Democratic candidate for AG Sam Houston thinks Abbott shouldn’t have bothered.

I agree with Judge Garcia when he says “state-imposed inequality can find no refuge in our United States Constitution.” There is no question that marriage is a right that should be afforded to all consenting adults regardless of race. In my view, the same right should be afforded regardless of sexual orientation, and I am not convinced Texas should commit substantial time and money to appeal a ruling that is likely to remain unchanged when considered by the U.S. Supreme Court.

Needless to say, none of the Republican candidates agreed with that.

Texas Monthly, writing before Abbott’s promise to appeal, examines the timing of the process.

[Judge Orlando] Garcia’s ruling falls in line with similar district court decisions issued recently in Oklahoma, Virginia, and Utah—making it increasingly likely that the U.S. Supreme Court will eventually have to settle the matter, possibly as soon as the 2014-15 session.

During a conference call [Wednesday] afternoon, Barry Chasnoff, one of the attorneys for the plaintiffs, said that while he hoped Abbott would choose not to appeal the decision and allow it to stand—as attorney generals in states like New Jersey have done—he nonetheless expected that in “a political year” Abbott would issue an appeal.

Garcia’s injunction will place the case on a fast track to the appeals courts, which is also where the Utah and Oklahoma cases are headed. But while Oklahoma’s and Utah’s cases are being appealed to the traditionally moderate Tenth Circuit Court of Appeals, the Texas appeal will be heard by the traditionally conservative Fifth Circuit, in New Orleans.

According to Kenneth Upton, a Dallas-based senior lawyer for the gay legal advocacy group Lambda Legal, the Texas appeal could be decided around the same time as the Oklahoma, Virginia, and Utah appeals. So although it’s still considered unlikely, there’s a chance that the Texas case could be the one the Supreme Court hears first—and could end up bringing same-sex marriage to all fifty states.

That would make it a bookend to the Lawrence v. Texas case from 2003. We sure have come a long way. I recommend you also read this TM feature story from the February issue, about plaintiffs Mark Phariss and Vic Holmes:

Phariss and Holmes, who filed suit with another same-sex couple in October and whose case will be heard this month by the U.S. District Court in San Antonio, are unlikely catalysts for social change: until recently, Phariss wasn’t entirely out of the closet, and both men were deeply hesitant about being part of the case. Holmes, who is a 43-year-old physician’s assistant in Fort Worth and former Air Force officer, feared that exposing themselves so publicly might make them targets of antigay violence. Phariss, who is 54 and an attorney, worried that the attendant publicity would alienate colleagues and clients, many of whom didn’t know about his sexuality. He even asked the legal team handling the suit if it could withhold a press release from the Dallas Morning News, since that’s the newspaper that everyone he works with reads.

“The day it was filed, I literally got physically sick,” recalled Phariss. “Leading up to that, we definitely had moments where we looked at each other and asked, ‘Have we lost our minds?’ It’s no accident that my name is the last of the plaintiffs listed.”

A decade after Lawrence v. Texas —the landmark 2003 Supreme Court decision that declared state laws forbidding homosexual activity to be unconstitutional—Texas seems to have found two more reluctant gay-equality activists. Like John Geddes Lawrence, who was closeted at the time of his 1998 arrest in Houston for consensual sex with another man in his own house, Phariss and Holmes found themselves drawn into the battle for marriage equality almost by happenstance. At every step of the way, they’ve had to keep convincing themselves this is the right thing to do. “The truth of the matter is I had some reticence about meeting with you,” Phariss told me.


The lawsuit originated with co-plaintiffs Nicole Dimetman and Cleopatra De Leon, who live in Austin but married in Massachusetts in 2009. In the aftermath of last summer’s Windsor decision, the women decided to sue Texas to recognize their marriage. One of their main motivations, they said, was to cement parental rights regarding their son, whom De Leon gave birth to in 2012 and whom Dimetman has since adopted. “We want to be able to tell our kids that we are married,” De Leon told me.

In August, Dimetman, an attorney who previously worked for the San Antonio office of Akin Gump Strauss Hauer & Feld (which had filed an amicus brief in the Windsor case), asked her former employers if they would be willing to represent the couple. After Akin Gump agreed to take on the case, the firm’s attorneys began reaching out to other gay couples, asking them to join as co-plaintiffs. They believed that a diverse group of plaintiffs—male and female, unmarried and already married in another state—would give the lawsuit its best chance. One of the first people lawyer Frank Stenger-Castro talked to was Phariss, whom he knew through legal circles. Phariss and Holmes eventually agreed to join the suit and went to the Bexar County Clerk’s office, where they requested and were denied a marriage license.

Why would Phariss and Holmes take on such a public role, given Phariss’s semi-closetedness and their concerns for their safety? They say that, in good conscience, they couldn’t not do it.

“There’s this phenomenon where someone is in trouble and needs an ambulance, and everybody says, ‘Call 911,’ and everybody assumes someone else is going to do it, and nobody winds up doing it,” said Holmes. “I didn’t see anybody else doing this, so I thought, ‘Okay, I’ll be the one who makes the call.’ ”

They’re happy they did make that call, as expressed by their statement after the ruling.

“We are extremely happy — happy beyond words — with Judge Garcia’s decision,” Phariss and Holmes said Wednesday in a written statement. “Today, Judge Garcia affirmed that the Equal Protection Clause applies to all Texans. We are delighted by that decision, and we expect that, if appealed, it will be upheld.”

In the same joint statement, Dimetman and De Leon described the decision as “a great step towards justice for our family.”

“Ultimately, the repeal of Texas’ ban will mean that our son will never know how this denial of equal protections demeaned our family and belittled his parents’ relationship,” they said in a written statement. “We look forward to the day when, surrounded by friends and family, we can renew our vows in our home state of Texas.”

Not everyone is happy, of course – this Chron story has a couple of quotes from usual suspects expressing their unhappiness.

Gov. Rick Perry said the ruling was yet another attempt by the federal government to tell Texans how to live their lives.

“Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman in our constitution, and it is not the role of the federal government to overturn the will of our citizens,” he said. “We will continue to fight for the rights of Texans to self-determine the laws of our state.”


Texas Agriculture Commissioner Todd Staples, who authored the amendment to the state constitution that banned same-sex marriage when he was a state senator in 2005 issued a short, but to-the-point Tweet on the ruling:

“Having carried the constitutional amendment defining marriage between 1 man & 1 woman, I will change my definition of marriage when God does.”

Perry and Staples and Dan Patrick and all the rest of them deserve all the unhappiness they get over this. Couldn’t happen to a better bunch of people.

By the way, there’s a second lawsuit that has yet to be heard.

Another gay marriage lawsuit will be heard in Austin, possibly as early as June. Federal Judge Sam Sparks will hear an argument made by a gay couple that the state ban on same-sex marriage is unconstitutional because it discriminates against them based on their gender. The argument is slightly different from the one made before Garcia and could trigger another round of appeals.

You may recall that Abbott tried to get these two cases consolidated and moved to Judge Sparks’ court, but both Judges Garcia and Sparks rejected those motions. In preliminary hearings, Judge Sparks had expressed some skepticism about the plaintiffs’ claims in the lawsuit that he will hear, which as noted is based on different claims than the one Judge Garcia just ruled on. It will be interesting to see what happens in that case.

Another lawsuit likely to be affected by this is the one that was filed by Jared Woodfill against the city of Houston over Mayor Parker’s order to make spousal benefits available to legally married same sex couples as well. Lone Star Q discusses that.

Ken Upton, a senior staff attorney at Lambda Legal who’s representing the gay Houston employees, told Lone Star Q on Thursday that U.S. District Judge Orlando Garcia’s ruling striking down the amendment will bolster the argument for same-sex benefits in Houston.

“It should be persuasive that the City and the employees have a substantial likelihood of success on the merits given that another federal judge in a sister district has found the law to violate both the liberty and equality guarantees of the 14th amendment,” Upton said.

You’d sure think so, wouldn’t you? That case is now in federal court, being heard by Judge Lee Rosenthal. There should be another hearing for it soon, unless the plaintiffs decide to drop it. Take the hint, Jared.

Last and least, Louie Gohmert is still an idiot. Just thought you’d want to know that.

Don’t worry, Abbott and The Nuge are still besties

Everyone who thinks what happened last week was bad for his campaign is just too stupid to see the big picture.

BFFs 4eva!

Right about the time Nugent was firing up the second crowd of North Texas voters last week in Wichita Falls, Abbott’s chief strategist, Dave Carney, wondered out loud on Twitter if the campaign’s Democratic opponent, Sen. Wendy Davis, wanted to go mano-a-mano with The Nuge on issues important to Texas voters.

“Wonder if @wendydavistexas would risk a straight up vote,” Carney wrote, using Davis’ Twitter account name. “Her and her views V. @TedNugent and his? I know who would win today!”

A week’s worth of Democratic outrage did nothing to shake Carney from that notion. The longtime consultant, who worked in the first Bush White House, is no stranger to Texas politics. He got his start here in 1993, helping Kay Bailey Hutchison defeat Sen. Bob Krueger, the last Texas Democrat to serve in the U.S. Senate, and he has played a major role in every Republican gubernatorial campaign since 2002.

The Nugent blowback theory, in his view, is yet another fiction spun by liberal elites and their friends in the mainstream media. Just like the fantasy that Sen. Kay “Bailout” Hutchison — who Carney quit working for long ago — was going to beat his more conservative client, Gov. Rick Perry, in the 2010 governor’s race. Just like the myth that a diverse “dream team” of Democratic candidates in 2002 had any chance of tossing out the dominant Republicans.

Never mind that Nugent has acknowledged having “beautiful” affairs with underage girls in his heavy touring days, or that he has called Hillary Clinton a “bitch” and worse. Yes, all that was a bit over the top. And no, the way Abbott handled the flap did not produce his finest hour on the campaign trail, particularly when CNN’s Ed Lavandera tried to ask the candidate about the controversy. After a standard brush-off failed to stop the reporter, an Abbott campaign aide physically blocked him from asking any more questions.

Now even Nugent, in the slightest nod to his critics, has issued a limited apology, not for any misogynistic slurs or engaging in sex with underage girls, but for referring to President Obama as a “subhuman mongrel,” a phrase Nazis once applied to Jews.

Regardless, inside the Abbott campaign, all of the handwringing over the gig with Nugent — and other perceived missteps — is confined to, as Carney puts it, a bunch of “Austin echo chamber” elites who are woefully out of touch with the voting public.

“They’re clueless about politics,” he said in an interview with The Texas Tribune. “This group-think stuff has zero impact on voters.”

So, to sum up:

1. Abbott’s association with Ted Nugent was awesome for him.

2. Anyone who thinks otherwise is an idiot.

3. Nothing will change until someone loses an election over something like this.

Are we fired up yet? Now go do something about it.

The state of HISD

HISD Superintendent Terry Grier assesses the district in his State of the Schools address.

Terry Grier

Terry Grier

While not mentioning the closure controversy Wednesday, Grier touted the district’s progress – being named the nation’s top urban school district in 2013, for example – while conceding he has more work to do in the two years left on his contract.

“We’re on a journey together, an ambitious journey, a journey that’s not easy, and that will not be complete in a year,” Grier told some 2,000 educators, community leaders and parents packed into a downtown hotel ballroom. “Change takes time.”

He announced new initiatives including expansion of foreign language studies and efforts to reduce student mobility during the school year.


Touting Houston’s diversity, he said an additional 14 elementary schools will offer dual-language Spanish programs next year, doubling the number in the district. The programs allow native English and Spanish speakers to take classes together, helping them gain proficiency in both languages.

“I think it’s a great idea,” said Kennedy Garrett, an eighth-grader at Wharton Dual Language Academy who introduced Grier in Spanish before his speech. “If you have the opportunity to be in it, I’d say go for it. There are going to be challenges, but it’s worth it.”

Grier, in his North Carolina drawl, later attempted a few words in Arabic and said officials were considering an Arabic immersion school.

HISD’s Mandarin immersion school, opened in 2012, has proved popular, drawing a waiting list as early as pre-kindergarten.

Grier also announced an effort to cut down on students switching schools midyear, often multiple times because their parents are chasing cheap rent. Grier said the district would provide busing for the students to stay at their original schools. He did not provide a price tag for the plan he called “home field advantage.”

You can see videos of the speeches and more information on the dual-language programs, which I too think are a great idea, here. Of interest is that Grier barely mentioned the Apollo program, which continues to have questions raised about the permanence of the academic gains it has achieved. Grier suggested that HISD may just take what it has learned from Apollo – basically, tutoring works – and apply it more broadly, a development that if it happens would I daresay be received well. He also emphasized the need to improve reading scores in HISD, which if done would be a huge accomplishment. Hair Balls has more.

Texas stands with polluters against the EPA one more time

Here we go.

Houston Ship Channel, 1973

Houston Ship Channel, 1973

The Obama administration’s climate change agenda on Monday faced one of its first real tests in front of the U.S. Supreme Court, where Texas and a group of industry leaders challenged an Environmental Protection Agency regulation aimed at limiting greenhouse gas emissions.

The question before the court is whether permits needed by large polluting facilities like power plants, factories and refineries should also restrict emissions of greenhouse gases. Texas and several industry coalitions say the permits, which companies must obtain before building facilities, should not be required for such emissions.

Instead, argued Texas Solicitor General Jonathan Mitchell and Washington, D.C.-based attorney Peter Keisler, permits should only limit emissions of regular air pollutants like sulfur dioxide and nitrogen oxide.

“Greenhouse gas emissions should not be treated the same as other air pollutants,” Mitchell told the court, pointing out that Congress has only passed legislation on traditional air pollutants, not greenhouse gases. “Congress does not establish round holes for square pegs.”

The scope of the question at hand is narrow because it only deals with permitting. In court cases in 2007 and 2011, the Supreme Court upheld the EPA’s ability to broadly regulate greenhouse gas emissions from “mobile sources,” like motor vehicles, and “stationary sources,” like power plants.

Still, if Supreme Court justices agree with Texas and the industry petitioners, the Obama administration’s attempts to combat climate change independently of Congress will suffer a major setback.

“Permitting is one of the most powerful tools in the toolbox,” said Pamela Giblin, an Austin-based lawyer with the firm Baker Botts LLP, which represents many energy and chemical companies that are affected by the regulations. “You’ve got these multibillion-dollar projects; you’ve got bulldozers there waiting until you get the permit. … The agency is never going to have as much leverage over a company as it does when they’re madly trying to get the permission to break ground.”

See here for some background. The Chron sums up what’s at stake.

The EPA made the move to regulate heat-trapping emissions from industrial sources after a 2007 Supreme Court decision that said the agency had the authority to limit greenhouse gases from cars and trucks under the federal law.

As a result, President Barack Obama has tried to bypass Congress by moving his ambitious agenda for addressing climate change through the EPA, angering many Republicans.

In briefs filed with the court, Texas Solicitor General Jonathan Mitchell argued that the Clear Air Act cannot be interpreted to allow EPA’s permitting requirements when the rules cause “preposterous consequences.” By the state’s estimation, more than 6 million industrial sources nationwide would be forced to meet the requirements at a cost of $1.5 billion.


Legal experts said Texas might not be able to sway the justices because previous court decisions give deference to federal agencies when statutes are ambiguous.

“The Supreme Court has said we defer to the agency if its position is reasonable,” said Thomas McGarity, professor of administrative law at the University of Texas at Austin.

David Doniger, the climate policy director for the Natural Resources Defense Council, said fewer than 200 industrial facilities needed permits in the first two years of the new requirements for greenhouse gases. “So despite all the cries of alarm, the Clean Air Act’s permitting requirements are working just fine,” he said.


Tracy Hester, professor of environmental law at the University of Houston, described the state’s request as a “classic Hail Mary.”

“Given the court had this whole buffet of issues and still narrowed it to one” when it decided to hear the Texas case, “that makes going for the whole 99 yards unlikely,” Hester said.

Lyle Denniston thinks things went reasonably well for the Obama administration.

As is so often the case when the Court is closely divided, the vote of Justice Anthony M. Kennedy loomed as the critical one, and that vote seemed inclined toward the EPA, though with some doubt. Although he seemed troubled that Solicitor General Donald B. Verrilli, Jr., could call up no prior ruling to support the policy choice the EPA had made on greenhouse gases by industrial plants, Kennedy left the impression that it might not matter.

It was quickly evident that the EPA’s initiatives, seeking to put limits on ground sources of greenhouse gases, almost certainly had four votes in support: Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They could not seem to accept that, when the challengers themselves are divided on the best way to read the Clean Air Act’s impact on such emissions, the Court should go with one of those choices rather than with the EPA’s.

The most enthusiastic supporter of the industry challengers was Justice Antonin Scalia, although Justice Samuel A. Alito, Jr., asked strongly skeptical questions about EPA’s justification for its actions. Chief Justice John G. Roberts, Jr., revealed little of where he might wind up, acting mostly as a moderator of his more active colleagues, and Justice Clarence Thomas said nothing.

That, of course, left Justice Kennedy. He was quite protective of the Court’s own decision seven years ago, launching EPA into the field of greenhouse gas regulation, and of a reinforcing decision on that point by the Court three years ago. But neither was close enough to the specifics of what EPA has now done, so he seemed short of just one precedent that might be enough to tip his vote for sure.

“Reading the briefs,” he commented to Verrilli, acting as the EPA’s lawyer, “I cannot find a single precedent that supports your position.” It appears that there just isn’t one to be had.

That, then, raised the question: how much would Kennedy be willing to trust the EPA to have done its best to follow Congress’s lead without stretching the Clean Air Act out of shape, as the EPA’s challengers have insisted that it has done? He made no comments suggesting that he accepted industry’s complaint of an EPA power grab.

We’ll know in a few months. Daily Kos has more.