I didn’t see this coming.
Lambda Legal [Thursday] filed a federal lawsuit against Houston Mayor Annise Parker and the City of Houston seeking to preserve spousal benefits, including health insurance, covering the same-sex spouses of city employees. The lawsuit was filed in the U.S. District Court for the Southern District of Texas on behalf three City of Houston employees legally married to same-sex spouses and follows notification these employees received recently that the City, one month after extending the employee coverage for their spouses, was being forced to withdraw these benefits and cancel the coverage.
“City employees who are married to same-sex spouses are doing the same work as coworkers who are married to different-sex spouses—at the end of the day this case is about equal pay for equal work. These employees, some who have worked for the City for many years, acted in good faith when notified the City was extending health coverage benefits to their legal spouses,” said Kenneth Upton, Senior Counsel in Lambda Legal’s South Central Regional Office in Dallas.
They enrolled for spousal benefits, including health insurance, paid the premiums, scheduled doctor visits and underwent treatments that will require ongoing care. Now, suddenly, the rug is pulled out from under them.”
Houston Mayor Annise Parker on November 20, 2013 announced that all lawfully-married city employees, including those who married same-sex partners in jurisdictions where such marriages are legal, would be eligible to enroll for spousal benefits, including health insurance coverage, under the City’s employee benefits health plan. The three plaintiffs named in Lambda Legal’s lawsuit enrolled their spouses as soon as they received notification of the policy change. Shortly thereafter, however, two Houston taxpayers sued the Mayor and the City in Family Law Court claiming the benefits were illegal and, without giving the Mayor or the City notice, secured a temporary restraining order (TRO) blocking extension of the benefits. The City is defending against the challenge to the Mayor’s decision to ensure equal employee benefits for all workers.
See here and here for more on the lawsuit and injunction that forced the city to suspend health insurance enrollments for same sex spouses, and here for more on the original order to provide those benefits. It’s clear from reading this that Lambda Legal is taking this action not to oppose the city but to support it in its defense against the injunction. I’m not a lawyer, but I presume the reason why Lambda Legal filed this separate action was for the purpose of having the two lawsuits joined so they could directly contribute to the defense against the injunction. I trust one of the lawyers in my audience will correct me if I’m wrong about that. The hearing will be Monday, January 6, so I hope we get a quick and favorable resolution to this. I also hope the Chronicle takes note of this new development sometime before then. The brief filed by Lambda Legal is here, and you can keep track of developments in the case here. Link via BOR.
Meanwhile, in Utah, it’s off to the Supreme Court for one last shot at stopping the tide from coming in.
Utah officials will appeal to the U.S. Supreme Court a lower-court ruling allowing same-sex marriage in the state, the state attorney general’s office said Thursday.
Newly appointed Utah Attorney General Sean Reyes will seek a stay of the federal judge’s ruling after state officials consult first with outside attorneys over the next few days.
“It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible,” the attorney general’s office said in a statement.
The emergency appeal, when filed, would go to Justice Sonia Sotomayor because she has jurisdiction over appeals from Utah and nearby states. She could rule on the state’s application herself or ask the entire nine-member court to weigh in.
Sotomayor is likely to refer the Utah request to the entire court, as is tradition with high-profile traditional cases, said Carl Tobias, a professor of constitutional law at the University of Richmond.
The forces against progress probably shouldn’t get their hopes up.
To secure a stay of the ruling, the state has to prove two things, says Clifford Rosky, a University of Utah professor of law and expert on lesbian, gay, bisexual and transgender legal issues. First, the state would have to prove that they are likely to win, Rosky, a gay-rights advocate, said this week. Second, they would have to prove that allowing the marriages to proceed would do “irreparable harm.” With hundreds of gay couples having already received licenses, that second argument is hard to make, he argues.
“If same-sex couples have already begun to marry, in the hundreds now, what would be the ‘irreparable harm’ of additional same-sex couples marrying?” he said early this week. “The cat’s out of the bag.”
Whatever happens, expect things to move quickly, Carl Tobias, a professor at the University of Richmond School of Law and a constitutional law expert, told the Salt-Lake Tribune. ”The state has always thought time was of the essence, and the justices are likely to agree and move very quickly once the papers are in,” he said.
As of the end of the day Dec. 26, at least 905 same-sex couples had received marriage licenses in Utah since last Friday’s ruling, according to the paper. And that’s despite the holidays and some county clerks’ initial reluctance to issue the licenses. Salt Lake County alone issued 353 such licenses Monday, dwarfing a previous record of 85.
You almost have to feel a little sympathy for SCOTUS having this issue dropped in their laps so quickly after their previous ruling.
“If the court thought it was going to get a few years,” said Michael C. Dorf, a law professor at Cornell, “I think they were naïve.”
The Supreme Court’s two decisions in June were finely balanced, with legal experts saying they had achieved the twin goals of advancing the cause of gay rights and avoiding a backlash in parts of the country not ready to embrace same-sex marriage.
One decision struck down the part of the federal Defense of Marriage Act that denied federal benefits to same-sex couples in states that allowed such unions. The other declined to say whether the Constitution required states to allow such marriages in the first place.
Since then, the pace of change has been very rapid. When the justices heard arguments in the cases in March, same-sex marriage was permitted in nine states and the District of Columbia. If the Utah decision stands, the number of states allowing such marriages will have doubled, to 18.
Michael J. Klarman, a historian at Harvard Law School and the author of “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage,” said he had expected rapid change — but not this rapid.
“The Utah decision is unique,” he added, “because it’s in a state with so much opposition to same-sex marriage. In Utah, you’re going to have a real experiment in backlash.”
Just wait and see what happens if the state of Texas gets injuncted. The hot air that will get generated will be enough to make Mars a temperate zone.
Professor Dorf said there are probably not five votes on the Supreme Court to block Judge Shelby’s ruling. “On the strictly legal argument,” he said, “it’s hard to justify granting a stay.”
But he added that the lower courts should have done so, partly because of the potential cruelty of voiding the new marriages and partly because the Supreme Court is hard to predict.
“It’s pretty clear that even the five justices who are sympathetic to same-sex marriage would rather take a few years before getting there,” Professor Dorf wrote in a blog post on Tuesday. “If their hand is forced, as it now will be, it’s impossible to say with certainty what they’ll do.”
Of course, if SCOTUS had taken the bull by the horns in June and come to the correct conclusion that injustice anywhere is injustice everywhere, we wouldn’t be here now. To sum up, I agree with Josh Marshall.
Now there are some conceivable federalism grounds where you could maybe eke out a reason why the Constitution bars the federal government from doing something but allows it to states. But it’s a big stretch and probably an impossible one in a country where opposition to same sex marriage is declining rapidly every year. There’s also the real world reality that the 10th Circuit denial of a stay seems certain to guarantee a pretty substantial population of same sex couples in the state by the time the appellate Court actually comes to a decision.
In this sense – and not to be overly dramatic – it’s almost reminiscent of the Fall of the Berlin Wall – when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with faits accompli they were likely to accept eventually much more rapidly than they would have preferred.
So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their our logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.
I think everybody, on each side of the issue, has realized for the past two or three years that it’s only a matter of time till this happens. But the decade of different policies from state to state now seems like it won’t happen. I don’t want to end without noting that a lot of lawyering remains to be done and nothing is ever certain and even when it’s all but certain it’s not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.
It’s just a matter of time now. And given that it’s just a matter of time, sooner is better than later. Why make this harder than it needs to be?