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Constitution

From the “Nothin’ but good times ahead” department

Given the good economic conditions in Texas right now, you’d think the budget outlook would be better than it is.

The Texas economy is growing healthily, but that doesn’t mean state budget writers will have more money at their disposal next year, state officials said Tuesday.

In fact, though unemployment is low and tax revenue is on the rise, big bills coming due for the state’s highways and health care programs are giving Texas lawmakers reason for concern.

“I would like to offer a few words of caution for reading too much into the positive recent economic numbers,” Texas Comptroller Glenn Hegar told lawmakers at a Senate Finance Committee hearing.

As they often do, state budget writers last year underfunded Medicaid, the federal-state insurance program for the poor and disabled, which, alongside public education, makes up one of the largest shares of the state’s $217 billion two-year budget.

Then, during a special session called by Gov. Greg Abbott over the summer, state lawmakers shifted another $500 million away from the Texas Health and Human Services Commission to pay for public education programs.

As a result, lawmakers could face a $2.5 billion Medicaid bill shortly after they reconvene in Austin in 2019. Then there are the additional drains on Texas coffers from Hurricane Harvey recovery efforts, Hegar said.

That’s bad news for lawmakers given the comptroller’s prediction that the state will only have a $94 million “beginning balance” when lawmakers convene in 2019. By comparison, lawmakers had an $880 million beginning balance in 2017, which was ultimately a tight year for the state budget. Two years before that, lawmakers enjoyed a $7.3 billion beginning balance.

[…]

Another source of heartburn for budget writers is the ravenous state highway fund. In 2015, amid complaints of a highway system in disrepair, Texans voted to amend the state Constitution to require that up to $2.5 billion in sales tax revenue be dedicated to the highway fund.

That means that even as Texas collects more money from sales taxes — Hegar testified that sales tax revenue grew by an average of 10.3 percent over the last three months — the rest of the state budget will not benefit from that revenue since it is earmarked for the highway fund.

That was also an issue for budget writers in 2017. Last year, in order to free up some of that money for other purposes, Senate lawmakers pushed for an accounting trick that delayed a payment to the state highway fund into the next two-year budget cycle. That freed up about $1.6 billion for lawmakers last year, but it means there will be another bill to pay in 2019.

“In short, despite a strong economy and positive outlook for revenue growth in this biennium, it seems likely the next budget will be much like the one crafted in 2017, having to contend with restricted revenue relative to the spending trends of the state,” Hegar said.

Just a reminder: Underfunding Medicaid was a choice. Shifting money away from HHSC was a choice. The amendment to require all that highway spending was ratified by the voters, but it was there to be ratified because the Lege chose to put it there. Deferring that payment to the highway fund was a choice. And though the story doesn’t include it in its litany, spending nearly a billion dollars on boondoggle “border security” stunts was a choice, too.

We’ll probably be fine in the 2019 session, though the potential for shenanigans is always high. But remember, winter is coming, because it always does. When it does, we’re going to have a mess to clean up, one that was caused by the Republicans in charge of our state, one that could have been mitigated in many ways. I hope we’re ready for it.

(Note: This is the inspiration for the post title.)

Endorsement watch: More state propositions

The rest of the constitutional amendments, from the Chron.

State of Texas, Proposition 4: For

Everyone deserves to know if they’re being sued – even the state of Texas. The Legislature passed a bill in 2011 that would have required courts to provide notice to the attorney general if the constitutionality of a state statute was being challenged, and requiring a short waiting period before striking down a law.

[…]

State of Texas, Proposition 5: For

Fans of the Rockets, Astros or Texans are probably familiar with the charity raffles that have become a staple of gametime entertainment. Right now the state Constitution restricts these sorts of lotteries, which have routinely raised thousands for worthy causes, to the state’s 10 major league sports franchises. Voters should approve this amendment to expand the opportunities for charity to all the minor and major league teams in Texas.

[…]

State of Texas, Proposition 6: For

First responders put themselves at risk to keep the rest of us safe from criminals, fires and everything else that goes bump in the night. When one of Texas’ finest falls in the line of duty, we all have a responsibility to keep his or her family safe in return. This means guaranteeing that surviving spouses don’t have to worry about rising property taxes after losing not just a loved one, but also a breadwinner.

[…]

State of Texas, Proposition 7: For

Banks used to hand out toasters to lure first-time depositors. Maybe it’s time to bring that back. More than one-third of the state doesn’t have a simple savings account. About half lack an emergency fund that could last three months.

At this point, we’ll support almost anything that encourages people to open up a basic account and take the first steps to financial responsibility. That includes allowing credit unions and other financial institutions to entice savers with promotional raffles or lotteries.

See here for the first three. I’ve seen some differing opinions on these items, but for the most part I don’t think any of them amounts to much. Take whatever action you deem appropriate.

Endorsement watch: State propositions and Katy bonds

Hey, did you know that there are constitutional amendments on the ballot? It’s true! (Spoiler alert: There are constitutional amendments on the ballot every odd-numbered year.) The Chron has some recommendations for how to vote on them.

State of Texas, Proposition 1: For

This amendment would allow the Legislature to exempt partially disabled veterans and surviving spouses from paying property taxes on a home received from a charity at less than the market value. An exemption has already been granted when homes are given for free, and this opens the door to some cost sharing.

[…]

State of Texas, Proposition 2: Against

Consider it a form of post-traumatic stress. Any time banks ask for looser rules, we get flashbacks to the 2008 economic crisis. Financial institutions granted bad loans, good loans – some even made fake loans – knowing that the instruments would eventually be wrapped into a package and sold off. If the debt went bust, some other sucker would be stuck holding the bomb.

The global economic system ended up as the big loser in that game of hot potato.

Now the Texas Legislature is asking voters to tear down some regulations that help keep lenders in line. We recommend voting against.

[…]

State of Texas, Proposition 3: Against

The governor selects hundreds of unpaid appointees to serve on state boards and commissions, most of which run for four- or six-year terms. But if the term expires and no replacement is appointed, that volunteer is allowed under the state’s “holdover” provision to remain until the slot is filled. This amendment to the state Constitution would force out the incumbents even if there’s no new appointees and render the positions vacant.

We have no quarrel with the current “holdover” rule and recommend voting against.

There are seven of these in total, so I presume this was part one of two. I did receive a mailer the other day in favor of one of these, so there’s at least one active campaign involved. I don’t remember which one it was, though. This is why you need to send more than one piece of mail to ensure that your message penetrates, kids.

Moving a bit outside the usual boundaries, the Chron casts a virtual vote in favor of Katy ISD’s bond referendum.

Katy needs more schools.

That simple fact becomes obvious to anybody who looks at the Katy Independent School District’s explosive growth. During the decade between 2005 and 2015, Katy ISD’s enrollment rose by a whopping 47 percent.

Take a deep dive into the numbers and you’ll discover another telling insight from the state comptroller’s office, which diligently tracks data on Texas school districts. Between 2006 and 2015, Katy ISD’s tax-supported debt per student actually declined by a little less than 1 percent.

Now one of the fastest growing school districts in Texas wants voters to authorize a bond issue allowing them to borrow another $609 million. Katy ISD officials have earnestly made a compelling case for passing this referendum. Even some longtime activists in the district who’ve opposed previous bond issues fully support this one. Voters should, too.

As the piece notes, despite being one of the hardest-hit areas by Harvey, KISD’s enrollment was up this year, highlighting just how rapid its growth has been. This is one of those “you can pay now, or you can pay later” situations, and paying now – especially when interest rates remain low – is almost always the better choice.

Yes, there will be constitutional amendments on the November ballot

They’re not very interesting, which in this environment is a blessing, but they will be there.

House Joint Resolution 21

What will be on the ballot: “The constitutional amendment authorizing the Legislature to provide for an exemption from ad valorem taxation of part of the market value of the residence homestead of a partially disabled veteran or the surviving spouse of a partially disabled veteran if the residence homestead was donated to the disabled veteran by a charitable organization for less than the market value of the residence homestead and harmonizing certain related provisions of the Texas Constitution.”

House Joint Resolution 37

What will be on the ballot: “The constitutional amendment relating to legislative authority to permit credit unions and other financial institutions to award prizes by lot to promote savings.”

House Joint Resolution 100

What will be on the ballot: “The constitutional amendment on professional sports teams’ charitable foundations conducting charitable raffles.”

Senate Joint Resolution 1

What will be on the ballot: “The constitutional amendment authorizing the Legislature to provide for an exemption from ad valorem taxation of all or part of the residence homestead of the surviving spouse of a first responder who is killed or fatally injured in the line of duty.”

Senate Joint Resolution 6

What will be on the ballot: “The constitutional amendment authorizing the Legislature to require a court to provide notice to the attorney general of a challenge to the constitutionality of a state statute and authorizing the Legislature to prescribe a waiting period before the court may enter a judgment holding the statute unconstitutional.”

Senate Joint Resolution 34

What will be on the ballot: “The constitutional amendment limiting the service of certain officeholders appointed by the governor and confirmed by the Senate after the expiration of the person’s term of office.”

Senate Joint Resolution 60

What will be on the ballot: “The constitutional amendment to establish a lower amount for expenses that can be charged to a borrower and removing certain financing expense limitations for a home equity loan, establishing certain authorized lenders to make a home equity loan, changing certain options for the refinancing for home equity loans, changing the threshold for an advance of a home equity line of credit, and allowing home equity loans on agricultural homesteads.”

You can click over to see the brief explanation of what these mean, but honestly none of it is that interesting. This is the reason why you didn’t hear about any of this during the session. Only a few narrow interests care about any of this, and it’s unlikely there will be much of a campaign for any of it. Don’t expect there to be much turnout in places that don’t have some other elections on their November ballots.

Uptown lawsuit filed

I suppose we should have expected something like this.

The city’s Uptown Development Authority and the economic development zone that feeds it were created in violation of the Texas Constitution, two critics allege in a lawsuit that seeks to void all resulting actions and block Uptown from collecting or spending another dime.

The Galleria-area agency’s controversial, $200 million effort to widen Post Oak Boulevard and add dedicated bus lanes down the middle is a key focus of the lawsuit. It was filed Wednesday on behalf of restaurateur Russell Masraff and condominium resident Jim Scarborough, who was also was a plaintiff in another, since-dismissed lawsuit seeking to block the bus plan.

The suit argues that Uptown officials repeatedly violated the Texas Open Meetings Act in pricing and purchasing land to widen Post Oak – including tracts in which some Uptown board members had a financial interest – and that the agency’s subsequent decisions should be voided or reversed, to the extent possible.

The plaintiffs’ attorney, Joe Larsen, said he views the filing as having broader significance beyond the bus plan.

“We’re asking the court to order Uptown to make no further payments because all the money involved has been collected through an unconstitutional tax regime,” Larsen said. “The bottom line is the Constitution requires equal taxation.”

He added that the only reason tax increment reinvestment zones, or TIRZs, “are not unconstitutional is that there’s a different provision in the Constitution that allows them.”

“In order to meet that other provision in the Constitution that allows TIRZs to be constitutional, they have to be in an area that’s ‘blighted, undeveloped or underdeveloped,’ Larsen asserted. “That’s it.”

This is not the first lawsuit related to this project; that one was subsequently dismissed, though without a comment on its merits. In this case, the plaintiffs asked the judge for an injunction blocking the Uptown Development Authority from spending money or issuing bonds while the litigation was in progress, but that request was denied. I feel like it’s also in the Constitution that we cannot have a non-freeway expansion transportation project in this town without at least one lawsuit. I’m not qualified to assess the legal argument being made here, so instead let me bring you a video of “Uptown Funk”, since that song has been lodged in my brain since this story first broke.

With all due respect to “Uptown Girl”, I say this song should be played at the beginning of all court hearings in this case. Who’s with me on this? Swamplot has more.

Two “faithless electors”

In the end, Donald Trump got thirty-six of Texas’ 38 electoral votes.

All but two of Texas’ 38 electors voted Monday to officially put Donald Trump in the White House, with one elector casting a ballot for Ohio Gov. John Kasich and another casting a ballot for a fellow Texan, former U.S. Rep. Ron Paul.

The votes from Texas were the ones that clinched the presidency of the United States for Trump, pushing the real estate mogul past the 270-vote threshold, according to Politico.

Elector Chris Suprun of Dallas had previously announced he would not support Trump. Another elector, Art Sisneros of Dayton, resigned as an elector, also in protest of Trump.

As electors voted, protesters’ chants picked up outside and could be heard from in the House chamber. They appeared to be saying specific electors’ names, followed by, “Save our democracy!”

The vote was unusually closely watched but largely expected: Both Suprun and Sisneros had shared their plans weeks in advance of the meeting. Suprun, however, did not announce until hours before the vote that he would instead vote for Kasich.

It was not immediately known who voted for Paul, the longtime congressman from Lake Jackson and three-time presidential hopeful. The process is secret ballot, meaning electors’ votes are not public unless they choose to disclose them.

According to the Statesman, the other maverick was a fellow named Bill Greene. As far as I know, he has not said why he did what he did. Art Sisneros was replaced as expected, as were three others who were apparently ineligible to serve.

I didn’t expect anything more exciting to happen, mostly because there was no one else out there joining Chris Suprun in his little exercise of conscience. I admit I harbored a teeny bit of hope that the Electoral College would Do Something about this, but I never really expected that. While I believe that the original intent of the founders was precisely for the Electoral College to prevent a man like Donald Trump from winning this election and that any legislative attempts to coerce them into voting a particular way are thus inherently unconstitutional, I agree that referring to such an intervention as being in any way “democratic” was misguided. The Electoral College is what it is, and we either accept that or we amend the Constitution to get rid of it. The extreme divergence between the popular vote and the electoral vote in this race is as strong an argument as one could want to make a change, but don’t hold your breath waiting for it.

You can’t stop the faithless electors

So says Carolyn Shapiro, associate professor at IIT Chicago-Kent College of Law, where she is co-director of the Institute on the Supreme Court of the United States.

Earlier this week, in a New York Times op-ed, Texas presidential elector Chris Suprun announced that he would not be casting his vote for Donald Trump. Even though Texas voters chose Trump, Suprun—along with a small group of electors from around the country calling themselves “Hamilton Electors”—will vote for a yet-to-be-identified compromise Republican. As Suprun explained in his op-ed, and as I and others have detailed elsewhere, Donald Trump’s conduct since the election has demonstrated that he is dangerously unqualified and unfit to be president.

Can electors legally do this? While the nearly universal expectation is electors’ votes will reflect the popular vote in their states, the Constitution doesn’t require them to. As others have explained, Alexander Hamilton’s justification for the Electoral College in Federalist No. 68 shows that the Framers intended for electors to exercise their own judgment when necessary.

Many states, however, have laws that prohibit these so-called “faithless electors” (perhaps a better term would be “conscientious electors”) from bucking the state popular vote. This week, two electors filed suit in federal court arguing that Colorado’s version is unconstitutional. (Hillary Clinton won Colorado, but the plaintiffs hope that a victory in their lawsuit will effectively invalidate all such laws, allowing electors in Trump states to defect.) In addition to arguments based on the Framers’ intent, there is a strong argument based on constitutional structure and text, and on Supreme Court precedent, that these electors should prevail.

The Constitution gives the states authority over how to choose electors. Article II, Section 1 provides that “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors…” But the Constitution does not authorize states to tell the electors, once selected, how to vote.

The Twelfth Amendment, which was ratified in 1804, spells out the electors’ duties in more detail. And it, too, defines the duties of electors without giving the states or state officials any role in defining or enforcing those duties. “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President …,” it says, and then goes on to explain that the electors should each cast two ballots: one for president and one for vice president. The electors, and only the electors, are directed to count, certify, and seal their votes, and to send the results directly to Washington. This allocation of responsibilities suggests that the Framers wanted to insulate the electors from the states’ influence or interference once they are appointed.

See here for the background, and be sure to read the rest. I kind of doubt Dan Patrick’s effort to bound electors will go anywhere, mostly because I doubt he’ll care enough to spend time and effort on it when he has much bigger fish he wants to fry, but you never know. What I do know is that I welcome the conversation about the role of the Electoral College, both as originally envisioned and in today’s world. Either we own and embrace what it was designed to do, or we should admit that it’s an anti-democratic anachronism and get rid of it.

City loses in appeal against firefighters’ pension statute

Here’s a pension fund-related litigation update for you.

Houston can’t overhaul a state-governed firefighter pension system that the mayor claims is pushing the city towards insolvency, a Texas appeals court ruled.

Houston sued the Houston Firefighters’ Relief and Retirement Fund in January 2014, seeking a declaration that a state law setting how the fund is operated, and giving the city no control over the amount of its contributions, is unconstitutional.

The city paid $350 million in pensions to firefighters, police and city workers in 2015, but its unfunded pension debt is $6 billion and growing.

A state judge sided with the fund in May 2014 and granted it summary judgment.

The city appealed, pressing its argument that the subject state law, passed in 1997, gives too much power to the pension fund’s board that is comprised of a majority of firefighters who are beneficiaries of the fund, and thus are inherently self-interested in maximizing firefighter pension benefits to the detriment of the city’s financial health.

The 10-member board is made up of six active or retired firefighter fund members who are elected by other firefighters, the mayor or an appointed representative of the mayor, the city treasurer and two citizens who are elected by the other trustees.

Houston claimed on appeal the state law violates the separation-of-powers principle in the Texas Constitution by delegating authority to a nonlegislative entity, the fund board.

The city cited Texas Boll Weevil Eradication Fund v. Lewellen. In that case, the Texas Supreme Court ruled in 1997 that a foundation established by the Texas Legislature to exterminate boll weevils that were threatening to destroy the Texas cotton industry unconstitutionally gave too much authority to the foundation to tax private farmers to pay for weevil killing.

But the 14th Texas Court of Appeals decided Thursday that the boll weevil foundation is fundamentally different from the pension fund board because the board includes public employees.

“The purpose of that [boll weevil eradication] foundation may be construed as protecting a private industry from a blight, albeit with an indirect benefit to the public. In contrast, eight of the 10 trustees of the fund’s board are current or retired public employees…We would have difficulty classifying the board as a private entity when the mayor and city treasurer also serve as trustees in order to administer benefits to public employees,” Judge John Donovan wrote for a three-judge panel.

The panel also rebuffed Houston’s argument that the state law is unconstitutional because it only applies to incorporated municipalities with a population of at least 1.6 million and a fully paid fire department. Houston is the only Texas city that qualifies.

The city claims the special treatment violates the Texas Constitution’s ban on the Legislature meddling in local affairs.

But the appeals court agreed with the fund’s contentions that Houston is uniquely dangerous for firefighters compared to the other four big cities in Texas—Austin, San Antonio, Dallas and El Paso—so sweeter pension terms are necessary to attract and retain firefighters.

See here for the background, and here for the ruling. There have been multiple lawsuits related in one way or another to the firefighters’ pension fund; it’s hard to keep track of them all because they go multiple months without any news. The city could appeal this to the Supreme Court, but I don’t think they will, for two reasons. One is that I doubt they’ll get a different outcome, and two is that while this lawsuit was filed by the Parker administration, the Turner administration has a much less contentious relationship with the firefighters, and is working on a pension fund deal with them. It would be a show of good faith, if not a bargaining chip, for the city to quit pursuing this lawsuit, and seek to settle or drop any other ongoing litigation for which the HFRRF is an opponent. The Chron story says the city “continues to believe the state statute is unconstitutional because it allows the firefighters’ pension fund to determine contribution levels”, and that the city intends to “seek further review”. We’ll see what happens.

UPDATE: Woke up this morning, and the following announcement was in my inbox: “Mayor Turner will unveil preliminary points of understanding with the Houston Firefighters’ Relief and Retirement Fund, the Houston Police Officers’ Pension System and the Houston Employees Pension System. The proposed plan will form the basis for a package of pension reforms that will be submitted for approval to the governing boards of the pension systems, City Council and the state legislature.” That’s happening today at 2 PM. So maybe this won’t have any effect on the negotiations one way or the other.

SCOTUS declines to hear Ted Cruz birther lawsuit

Not that it really matters at this point.

Not Ted Cruz

Not Ted Cruz

The Supreme Court declined Tuesday to hear a lawsuit arguing that Texas Republican Sen. Ted Cruz is ineligible to be president because his Canadian birth means he is not a “natural born citizen.”

The justices upheld a lower court ruling from March that found Walter Wagner, a retired attorney in Utah, did not have standing to file a lawsuit over the issue. Wagner was one of several individuals nationwide who sued to challenge Cruz’s eligibility to run for president.

In the March ruling, U.S. District Judge Jill Parrish noted that other challenges were similarly dismissed. Parrish never ruled on the underlying question of whether Cruz was eligible to be president.

See here for the background. A similar suit filed in Texas was dismissed shortly after dismissal of the Utah suit was appealed to SCOTUS. We all know that Cruz isn’t going away, so I expect this issue to come up again in 2020 or whenever he tries to run for President again. As I’ve said before, while the question raised by these claims isn’t ridiculous, I believe the “natural-born citizen” requirement has long outlived any usefulness it once had, and should be tossed. Perhaps the courts can take that up next time, since the odds of the Constitution being amended are basically nil. In any event, there is now one fewer bits of effluvia floating around the campaign this year. Let us be thankful for that.

Meyers’ voter ID lawsuit gets appellate hearing

I hope he gets to keep it going.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

[Court of Criminal Appeals Justice Lawrence] Meyers filed his state lawsuit in October 2014, while another legal challenge to the state’s voter ID law was pending in federal court in Corpus Christi. A federal judge overturned the law, but it has remained in effect during the state’s appeals to higher courts.

Meanwhile, state and local officials in Texas tried to get Meyers’ challenge dismissed. A Dallas trial judge — former state lawmaker Dale Tillery, a Democrat — refused that request. Now those officials are asking the state’s 5th Court of Appeals in Dallas to toss it. That hearing is set for Tuesday.

Meyers is lapping this up. His challenge is the sort of technical thing you would expect from a long-time judge. He points to this sentence in the Texas Constitution (emphasis added): “In all elections by the people, the vote shall be by ballot, and the Legislature shall provide for the numbering of tickets and make such other regulations as may be necessary to detect and punish fraud and preserve the purity of the ballot box; and the Legislature shall provide by law for the registration of all voters.”

“It does not include ‘prevent,’” he says, adding that the voter ID law is “a prior restraint against your constitutional right to vote.”

As he put it in his original filing, the voter ID law forces voters to prove they are innocent before they cast their ballots rather than requiring the state to prove that someone is actually guilty of voter fraud once they have voted. Someone who doesn’t have the required identification “will be denied his right to vote and will be presumed to be guilty of voter fraud,” he wrote.

Proponents of the voter ID law say it’s no more burdensome than presenting identification in routine commercial transactions, and say the law has built-in workarounds for people who don’t have drivers’ licenses to show voting officials.

Meyers contends that the state’s effort to prevent voter fraud — he doesn’t think such fraud exists in any serious way — creates an obstacle to voting that does more harm than good. Voter fraud is already illegal, he points out, and the state can and should prosecute it whenever it occurs.

“We’re just asking that our Constitution be enforced,” he says. “Voter ID is almost identical to what the old poll tax was. … It suppresses the vote.”

In its legal filings, the state argues that Meyers doesn’t have grounds to sue because he hasn’t shown how he the voter ID law has done him any harm. Those state lawyers also contend that the law does not add to the “qualifications” of voters but is more akin to other requirements, like when the polls are open or when elections are held.

See here and here for the background. Obviously, I agree with Meyers on the merits; the questions about standing are beyond my non-lawyerly capabilities to analyze. Meyers has said that he’ll drop this lawsuit if the federal courts uphold the ruling that Texas’ voter ID law was unconstitutional. We may have some indication by July of that. In the meantime, I’m rooting for the courts to allow this challenge to keep going.

The Scalia effect on current cases

The Trib highlights a few cases pending before the Supreme Court that could be affected by the death of Justice Antonin Scalia.

Antonin Scalia

Texas abortion law

On March 2, the court will hear oral arguments in Whole Woman’s Health v. Hellerstedt, which challenges Texas’ 2013 abortion law. Beyond deciding the constitutionality of a law that could shut down about half of the state’s 19 remaining abortion clinics, the Texas abortion case gives the Supreme Court an opportunity to clarify how far states can go in restricting abortion.

In 1992, the court ruled that states can impose abortion restrictions as long as they do not place an undue burden on a woman’s ability to obtain an abortion.

Lower courts across the country have disagreed, however, on what constitutes an “undue burden.” Activists on all sides are hoping the high court will provide a clearer definition in its decision in the Texas case. That case centers on the state’s requirement that abortion clinics meet hospital-like ambulatory surgical center standards — which include minimum sizes for rooms and doorways, pipelines for anesthesia and other modifications. In June, a three-judge panel of the U.S. 5th Circuit Court of Appeals largely upheld the new abortion restrictions, saying the new law does not impose an undue burden on a majority of Texas women seeking abortions.

Justice Anthony Kennedy could be the swing vote. If he sides with the conservatives on the court, the resulting 4-4 tie would affirm the lower court ruling.

The lower court also granted the relatively remote Whole Woman’s Health in McAllen an exemption to some narrow elements of the ambulatory surgical center requirements and from a separate provision of the law that requires doctors who perform abortions to have admitting privileges at a hospital within 30 miles of an abortion clinic.

Barring a tied vote, a decision in the Texas case could also determine the constitutionality of restrictions in place in other areas of the country. As of November, 10 states had adopted admitting privileges requirements, but courts blocked enforcement in six of those states, according to the Center for Reproductive Rights. Six states had enacted ambulatory surgical center standards on abortion facilities. Those restrictions were not in effect in two of those states.

Immigration

The high court also agreed to hear the state’s case against the Obama administration’s controversial executive action on immigration that was announced in November 2014.

Known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, the action would shield more than 4 million undocumented immigrants in the country from deportation proceedings and allow them to apply for three-year work permits. Lower courts have ruled to halt the policy three separate times.

The Supreme Court agreed to hear the case in January but has yet to schedule arguments.

[…]

UT-Austin’s affirmative action policy

The death of Scalia cast uncertainty on many important cases before the Supreme Court, but probably won’t have a major impact on the decision in Fisher v. the University of Texas at Austin, which is a case about the constitutionality of affirmative action.

Justice Anthony Kennedy is still the likely swing vote, just as he was before Scalia died.

Abigail Fisher, who is white, contends she was unconstitutionally denied admission into UT-Austin in 2008 because of her race. UT-Austin considers the race of a small portion of its applicants, and black and Hispanic students often get a slight advantage in that pool of admissions. If Fisher wins her case, UT-Austin might be unable to consider the race of its applicants in the future. A broad ruling against UT-Austin could even end affirmative action nationwide.

Scalia, a longtime opponent of affirmative action, was almost certain to vote against UT-Austin. He was in the dissent in Grutter v. Bollinger in 2003, when the Supreme Court upheld the practice of affirmative action in a limited way.

[…]

Redistricting

Finally, the justices heard arguments last year on a Texas case that questions a basic idea in American election law. In Evenwel v. Abbott, the plaintiffs argue that their voting power is diluted by the way Texas draws its state legislative districts, saying those lines should be based on the number of eligible voters in each district and not on population.

Congressional districts are based on population, as directed in the Constitution. The Evenwel case challenges Texas Senate district lines; a decision allowing states to use eligible voters as a base could shatter current lines here and in other states that want to make the change, remaking the distribution of power in state legislatures. That decision is pending.

The court has already accepted those four cases, among others, but doesn’t have to do anything this term if the justices decide to change course.

If the justices don’t want to rule on a case they’ve already accepted, they can announce it was “improvidently granted,” which means lower court ruling holds, [Sanford Levinson, a constitutional law expert at the University of Texas at Austin] said. They can hold over any unheard cases they want until they have a ninth colleague, and they can rehear oral arguments with a ninth colleague if they want to wait or they think a ruling with a four-person majority would be too controversial.

“It certainly wouldn’t surprise me if they hold over some stuff where time really isn’t of the essence,” Levinson said. “You can make this argument of the election case [Evenwel]. If they hold it over, the world won’t come to an end.”

There’s a lot of good commentary out there about What This All Means, at least in the short term – see Think Progress, SCOTUSBlog, and Rick Hasen, for example. The main point to keep in mind is that in any case where SCOTUS winds up splitting 4-4, the ruling of the lower court would stand. From my perspective, that’s a good thing in some cases – Friedrichs being one example, Evenwel being another – and not so good in others, specifically Whole Woman’s Health and the DAPA case. In addition, in some cases that kind of result could also mean a split in the appeals courts. There are plenty of abortion restriction lawsuits out there, over laws similar to what Texas passed, and a number of other federal courts have struck them down. It’s not hard to imagine at least one appeals court upholding the lower court on those rulings, thus making laws like Texas’ legal in some states but not in others. Texas’ law is currently on hold thanks to SCOTUS, so one way to avoid this problem would be for the Court to delay hearing the appeal until they’re back at full strength. Or maybe the good Anthony Kennedy will show up and Texas’ law will get struck down on a 5-3 vote. Let’s just say that John Roberts has a lot to think about and leave it at that.

One other thing: Justice Scalia’s death has revived the idea of term limits for Supreme Court justices, an idea that has fairly broad support. Ted Cruz is a proponent of the idea, though as is always the case with Cruz, he has bad reasons for doing so. I’m perfectly fine with the idea of limiting Justices to 18 years on the bench. It’ll take a Constitutional amendment, so the odds of it happening are infinitesimal. but if it gains momentum that will be okay by me. For what it’s worth, prior to Scalia’s death, there were five Justices who had already served more than 18 years, and three of them were appointed by Republican Presidents: Scalia, Kennedy, and Clarence Thomas, along with Ruth Bader Ginsburg and Stephen Breyer. Make of that what you will.

Resign to run has kicked in for Council members

Another change that our new term limits law has wrought.

Houston elected officials who become a candidate for another elected office are now automatically required to resign their current seat, uncharted territory for city officeholders who previously had not been subject to the so-called “resign-to-run” provision of the Texas Constitution.

The requirement that has long applied to county officials also covers officeholders in municipalities whose terms are longer than two years. Voters extended the terms of Houston elected officials to four years, from two, last November, triggering the change.

The “resign-to-run” clause pertains to those with more than one year and 30 days left in their terms who announce their candidacy or become a candidate in any general, special or primary election.

The provision does not appear immediately to affect three City Council members – Dwight Boykins, Jerry Davis and Larry Green – who have expressed interest in the late Harris County Commissioner El Franco Lee’s seat, because it would not kick in until Democratic precinct chairs select someone to replace Lee on the November ballot.

[…]

Executive committee nominations aside, a memo sent Tuesday by City Attorney Donna Edmundson and obtained by the Chronicle defines “announcing candidacy for office” as “making a written or oral statement from which a reasonable person may conclude that the individual intends, without qualification, to run for an office.”

Edmundson added: “A statement made in a private conversation does not constitute an announcement of candidacy for the purposes of the ‘resign to run’ provision. Likewise, a statement indicating an interest in an office is not considered an announcement of candidacy.”

[Mark] Jones said the new rules further constrain elected city officials.

“Previously, they effectively could have their cake and eat it, too, in that they could run while keeping their City Council position,” Jones said. “Now, they’re going to have to actually make a hard choice, which in some cases may be a risky move.”

Yes, but let’s not go overboard. Not that many people that would have been affected by resign-to-run took advantage of their prior exemption from it. Going back a decade, I can think of six sitting municipal officeholders who were also candidates for other offices. Three of them were in the last year of their final term – Bill White in 2009, Wanda Adams in 2013, and Ed Gonzalez in 2015 – and thus had less than a year and a month remaining in office. Only three people would have had to resign to run – Shelley Sekula Gibbs, who ran for Congress in 2006; Adrian Garcia, who ran for Sheriff in 2008; and Mike Sullivan, who ran for Tax Assessor in 2012. Sekula Gibbs and Garcia resigned after winning their November elections, thus triggering special elections to succeed them the following May, while Sullivan resigned after winning his primary, which allowed the special election to fill his seat to happen that same November.

The rest of the story is about filling Commissioner El Franco Lee’s spot on the November ballot, and it’s mostly stuff we already know. The main thing here is that this change probably won’t have much effect, though it could alter how some incumbents view the rest of the election cycle. If anyone decides to run for something in 2018, we’ll know.

The Prop 7 funds are already being claimed

Get ready for a lot more road construction in the near future.

Voters have a little more than a week to decide whether to give Texas highways a $2.75 billion annual funding boost, but Houston-area officials are already making plans to spend the money.

In the event Proposition 7 passes – the proposal has silent, token opposition – officials with the Houston-Galveston Area Council on Friday approved a revised 10-year spending plan that reflects when area road projects could begin, using the new money.

“Readiness will be the name of the game,” said David Wurdlow, program manager for short-range transportation planning at H-GAC. “We are going to be real aggressive to move projects forward.”

Without Proposition 7 the amount of money available for regional transportation projects is roughly $2.1 billion for the next decade, according to the current 10-year plan. Though not the only source of highway money, the funds directed by H-GAC’s Transportation Policy Council are among the most significant to build or rebuild highways.

Adding Proposition 7, officials estimate, increases that total to more than $4.6 billion, taking long-sought projects and moving them much closer to reality much sooner. In fiscal year 2018, for example, Proposition 7 would increase highway spending in the Houston area from $211 million to $696 million.

In 2018 alone, Proposition 7 means an earlier start to two segments of widening Interstate 45 near NASA Bypass 1 in Webster and earlier construction on FM 2100 east of Atascocita.

Another project accelerated by planners is a long-sought widening of Texas 36. Though the road isn’t a major commuting bottleneck, widening it is a major focus Freeport and Waller County officials who contend the highway is a natural truck bypass for the Houston area.

[…]

Like Proposition 1, the money comes with some conditions. Officials cannot pay off any of Texas’ highway debt, which is how many previous transportation programs were paid. All of the funds must be used on state highways – meaning no tollways, transit or alternative modes such as bicycling can benefit.

Some non-highway projects, however, could benefit, if regional officials approve. The transportation council is made up of local elected leaders and the heads of transportation agencies such as the Metropolitan Transit Authority and TxDOT’s Beaumont and Houston offices. Council members use a formula that divides the federal and state funds spent by the agency, which caps spending on non-highway projects, called alternative modes, to between 18 percent and 25 percent of total funds.

If the Proposition 7 windfall gives officials hundreds of millions of dollars more for highways, they could restructure.

“We might be able to move those (highway projects) to the proposition side and move some of those funds to alternative modes,” Wurdlow said.

Prop 7 isn’t raising any new money to spend on transportation, because we don’t do that sort of thing in Texas. It simply mandates that $2.5 billion of sales and use tax revenues in Texas specifically to transportation – in other words, it takes money from one pocket of the budget and puts it in the other. If you’re wondering why legislators who have been writing the state’s budget over the pasty few years were unable to allocate extra funds for transportation on their own, or thinking that this is just another band-aid that doesn’t actually solve anything, you would not be alone. Streetsblog and the Rivard Report present a more comprehensive case against Prop 7, but I doubt it will have much effect. Like it or not, we’re going to see a lot more highway construction in the near future. Better get used to it.

Endorsement watch: The state propositions

There are seven constitutional amendments awaiting your vote on the November ballot. The Chron evaluates them.

Constitution

Proposition 1

The amendment would boost homestead exemption amounts for school district property taxes from $15,000 to $25,000. It also would reduce the amount of taxes that could be levied on the homesteads of elderly and disabled Texans and would prevent public officials from reducing or eliminating already-approved property tax exemptions. In addition, it would keep the state from charging a transfer tax on the sale of the property.

Proposition 2

This amendment extends the property-tax exemption for spouses of deceased veterans who were 100 percent disabled. Voters approved a similar exemption in 2011, but that one applied only to spouses of veterans who died on or after Jan. 1, 2010. The current proposal eliminates the date restriction.

Proposition 3

This proposal would repeal the requirement that state officers elected by voters statewide reside in the state capital.

Proposition 4

This proposal authorizes the Legislature to permit professional sports teams to raise money through raffles during games for charity.

Proposition 5

This amendment would authorize counties with a population of 7,500 or less to perform private road construction and maintenance, raising the population cap from the current 5,000.

Proposition 6

This amendment “recognizing the right of the people to hunt, fish and harvest wildlife subject to laws that promote wildlife conservation” is the most ridiculous on the ballot.

Proposition 7

In an effort to address the state’s huge transportation needs, this amendment would require the Texas comptroller each year to dedicate the first $2.5 billion of vehicle sales use and rental taxes to the General Revenue Fund, dedicate the next $2.5 billion to the State Highway Fund and split between the two funds all revenue above that. The plan will generate an estimated $3 billion per year by 2020.

Not much to go on there, I admit. VoteTexas has the full statement of each amendment, and public radio station KUT in Austin has been doing a series of reports on each proposition; they’ve done one through five as of yesterday, so check back again later for the last two. The Chron opposes numbers 3 and 6 and supports the others. I’m “not just no but HELL NO” to those two, I’m leaning No on one and seven, and I’m fine with #s 2, 4, and 5. Kevin Barton argued against Prop 7 a few days ago. If you know of any good arguments for or against any of these, leave a link in the comments.

One side note: Proposition 1, which is basically a tax cut (and significant spending increase, not that anyone in our Republican leadership would ever admit to that), has an actual campaign behind it, as it is considered a top priority for the real estate industry and the Texas Association of Business. As such, I received a pro-Prop 1 mailer at home last week. You may note that the HERO referendum is also called Proposition 1. It’s City Proposition 1, whereas this is State Proposition 1, and it appears at the end of the ballot while the tax cut referendum is up front, but they’re both still Proposition 1. I can’t help but think that a few people will be moved to vote for the latter on the belief that they are voting for the former, or at least something related to the former. I can’t imagine there will be many people like this, but the number is surely greater than zero. Given that, I suppose it’s a good thing that the city lost its fight to word the referendum in such a way that a No vote was a vote in favor of HERO. So thanks, Andy Taylor, for seeing through the Mayor’s nefarious ploy and ensuring that this little bit of luck would favor the pro-HERO side. I’ll be sure to drink an elitist craft beer, served with quinoa chips and organic, locally sourced salsa, in your honor.

How much do you hate same sex marriage?

Not as much as this guy does.

RedEquality

Ammon J. Taylor of San Antonio is so vehemently opposed to same-sex marriage that he took the unusual step of forming a federal super PAC to fight it.

The 27-year-old salesman is taking a seldom-tried — some would say improbable — approach. He wants to muster a convention of states to amend the Constitution to enable states to quash the Supreme Court’s June ruling that legalized same-sex marriage.

On July 16, Taylor registered the Restore Marriage PAC with the Federal Election Commission, naming himself president and treasurer. Moving methodically, he opened a bank account, issued a news release, created an Internet presence, and began seeking volunteers and support among fellow conservatives of all creeds.

“Most Americans think that since the Supreme Court decision allowing same-sex marriage, the issue is settled. It is not,” Taylor said when he announced the PAC.

With Congress not acting against same-sex unions, a convention of states “is our only constitutional recourse to save marriage,” he said.

For Taylor, the effort is part of living his Mormon faith. As a boy, he watched his father lead Nebraska’s initiative to define marriage as being between a man and a woman, which passed overwhelmingly in 2000 but was nullified by the court decision.

[…]

Taylor concedes it’s unlikely that enough states could be persuaded to “pass an amendment that would protect and restore marriage nationwide. We do believe we can get 34 states to come together to hold a convention to propose an amendment that allows each state to define for itself.”

With most states under Republican control, he said, “now is the best time ever to return to the states the right to determine key social and economic events that Washington has allowed to run out of control — like balancing the budget, stopping abortion and protecting traditional marriage,” Taylor said.

“How do we put the pressure on Congress to call for an amendment now? The answer is we hold a mock convention,” he said. Taylor hopes to conduct the “People’s Convention” around a July 2016 meeting of lawmakers at the American Legislative Exchange Council in Indianapolis.

A key motivation for Taylor was a Mormon leader’s prophesy that those outside Washington, D.C., would someday save the Constitution.

I’m not going to waste any time on Amman Taylor’s hateful nonsense, which he of course denies is motivated by hate because how could legally classifying millions of people as second-class citizens be anything but loving? The fact that he hopes to put his grand plan in motion at an ALEC conference is…I can’t even. Seriously. What I will do is go off on a brief rant about the difference between prophecy and prophesy, which are not only two different words that have two different pronunciations, they’re even two different kinds of words. Prophecy is a noun. It is the work product of a prophet. Prophesy is a verb. It is the action taken by a prophet to produce a prophecy. I don’t know if I blame the reporter or the copy editor (if they still have them at newspapers these days) more for this annoying and annoyingly common error, but either way, please get this right. It makes me twitch like Herbert Lom in the Pink Panther movies when I see “prophesy” used as a noun. You don’t want to do that to me, do you? Thanks.

No, we shouldn’t have any kind of elections for SCOTUS justices

Your junior Senator, ladies and gentlemen.

Not Ted Cruz

Not Ted Cruz

Dismayed by a pair of Supreme Court decisions upholding Obamacare and gay marriage, Republican Ted Cruz presided over a packed Senate hearing Wednesday calling for judicial elections and term limits to rein in what he called “judicial tyranny” and “the abuse of judicial power.”

While term limits or recall elections for Supreme Court justices are considered a distant long-shot, both ideas have gained traction with some legal theorists – and especially with social conservatives who are a key part of Cruz’s strategy to win the 2016 GOP presidential nomination.

As chairman of a Judiciary subcommittee on the federal courts, Cruz took center stage in an afternoon hearing that aired a host of conservative grievances with recent high court decisions that have remade the political landscape on health care and same-sex marriage.

“So long as justices on the Court insist on behaving like politicians, acting like a political body, and making policy decisions instead of following the law, they should not expect to be exempt from the authority of the voters who disagree with their policy decisions,” Cruz said.

The idea of retention elections has been widely panned by critics on the left and right, many of whom fear it would politicize the highest echelon of the judicial branch and expose the justices to unseemly political campaigns.

Delaware U.S. Sen. Christopher Coons, the ranking Democrat on the panel, suggested that the proposal is an overreaction to a pair of court decisions that went against the views of conservatives.

“We cannot decry judicial activism and create a Constitution crisis every time that a big case comes out against us,” Coons said. “The Supreme Court has been a vital arbiter of political interests precisely because it is insulated by the vagaries of politics and political interests.”

Coons and other opponents of Cruz’s plan argued that the current Supreme Court has delivered a string of conservative victories on guns, voting rights and campaign spending limits.

I’ve said it before and I’ll say it again: For a guy that’s supposed to be so freaking smart, Ted Cruz sure says a lot of stupid things. Putting aside the obviously sore-lose-crybaby motivation for this proposal and the fact that the Founders intended Supreme Court justices to be above politics (hence the lifetime appointments; you’d think a self-styled “Constitutional conservative” would have some respect for that), electing Supreme Court justices is an objectively terrible idea. The public will be woefully under-informed about the candidates, who will necessarily be limited in what they can campaign on. All of the conflict-of-interest problems with judicial elections at lower levels will exist times a billion. And speaking of “billion”, the amount of super PAC/special interest money that would flood into these campaigns would be enough to choke a Koch brother. There’s just nothing to recommend this.

Now, some people have suggested perhaps limiting SCOTUS terms to something like 18 years, which would allow for regular turnover while still shielding the Justices from electoral politics. (Which is not to say they’re not themselves political, just that they could continue to make rulings without wondering about their existential future.) I could be persuaded to support such a plan, if I thought there was a chance it could be approved. But Cruz isn’t interested in improving anything other than his own side’s advantage. I suppose that much is smart, but so would be having a plan that had a chance of actually succeeding.

SCOTUS rules for marriage equality

Boom.

RedEquality

Handing gay rights advocates a monumental victory, the U.S. Supreme Court on Friday ruled that marriages between couples of the same sex are constitutional, a decision that overrides Texas’ long-standing ban on gay marriage.

In a 5-4 ruling, the high court found that same-sex couples have a constitutional right to marry and that states must license a marriage between two people of the same sex.

“Today’s victory will bring joy to tens of thousands of Texans and their families who have the same dreams for marriage as any others,” Chuck Smith, executive director for the gay rights group Equality Texas, said in a statement. “We hope state officials move swiftly to implement the Constitution’s command in the remaining 13 states with marriage discrimination.”

Though the Supreme Court ruled specifically on four gay marriage cases out of a Cincinnati-based federal appeals court, its decision legalized gay marriage nationwide, dismaying Texas’ Republican leaders.

The ruling is here. I for one am thoroughly enjoying the bitter, bitter tears of those dismayed Republican leaders; you can see those and some other reactions here. Seriously, every time Ted Cruz says something hilariously apocalyptic, an angel gets its wings.

Texas’ ban, which had been on the books for a decade, defined marriage in the state Constitution as “solely the union of one man and one woman.” A legal challenge to Texas’ constitutional ban was making its way through the courts.

Two same-sex couples had sued Texas over its gay marriage ban, arguing that it did not grant them equal protection as intended by the 14th Amendment. Attorneys for the state of Texas defended the ban, saying it met equal protection laws and that the courts should not undermine a state’s sovereignty to impose such restrictions.

The Texas case was among dozens of challenges to state same-sex marriage bans that cropped up and barreled through the judicial system after the U.S. Supreme Court struck down part of the federal Defense of Marriage Act in 2013.

The Texas case was among the last to be heard at the appellate level, and it was left pending before the U.S. 5th Circuit Court of Appeals at the time the Supreme Court ruled on the issue.

I wonder again, will the Fifth Circuit ever issue a ruling on that appeal, or will they simply point to SCOTUS and say “never mind”? What is the legal precedent for this? The good news is that Judge Orlando Garcia, who issued the original ruling knocking down Texas’ anti-gay marriage law, has officially lifted the stay on his ruling. There’s no legal force holding anyone back, just the obnoxiousness of some small-minded officials here.

June 26 was already a historic day for gay rights activists. On that same day in 2003, the Supreme Court struck down Texas’ sodomy ban, invalidating it and similar laws across the country. A decade later on the same day, the high court struck down key portions of the Defense of Marriage Act, ruling that same-sex couples were entitled to federal benefits if they lived in states that allow same-sex marriage.

On Friday, Mark Phariss, a plaintiff in the Texas case, expressed joy at the Supreme Court ruling. “After almost 18 years together, we can soon exchange vows, place rings on each other’s finger, look each other in the eye and say, ‘I do,'” Phariss said in a statement, “all at a wedding surrounded by family and friends.”

Yes, I had thought this would wait till Monday, since there are several other decisions yet to be released, and I fell for the argument that this decision would be released last. Apparently, June 26 really is a magical day. I couldn’t be happier about it.

Look, we know that the legal wrangling is far from over, and the reactions from those bitterly crying Republican officials confirms that they are not about to give up just yet. I nearly got whiplash following the story of whether or not Harris County Clerk Stan Stanart would issue same-sex marriage licenses, and he was far from the only one dragging his feet. I’ll write up what I can for the next post. This one is all about the big accomplishment. It’s a huge step forward, one many people can’t believe they lived to see. I can hardly believe it was less than ten years ago when Texas voted to add that hateful anti-gay-marriage amendment to its constitution. I sure didn’t believe this day would happen so quickly, if a decade can be considered “quick”. But here we are, and while there will be more obstacles going forward, there’s no going back. So celebrate, rejoice, get married if that’s been on your do list, and forget the haters for a day or two. They’ll be with us always, but this weekend will only happen once. Mazel tov and God bless, y’all.

It always was about animus towards gays

TPM reviews the history of anti-gay marriage laws and constitutional amendments now that they’re on the verge of being thrown out. Opponents of marriage equality have been claiming that these laws were not enacted with any animus intended towards same-sex couples, but the arguments made at the time these laws were being debated clearly says otherwise.

RedEquality

The leading opponents of same-sex marriage have been attempting to re-write recent American history, where decades of sneering public attacks on gays and lesbians, condemnations of their “lifestyle,” and blaming them for a decline of America’s moral virtue are quietly forgotten.

Their argument, made in front of the Supreme Court, no less, is that gay marriage bans are not motivated by prejudice toward gays and lesbians, but by a more noble if newfound purpose. In the days to come, the justices will reveal whether they subscribe to this new version of history in a decision that could decide whether gay couples have the right to marry nationwide.

Sweeping cultural change coupled with past decisions by the Supreme Court have limited the options the states who continue to ban same-sex marriage have to defend those prohibitions. If gay couples are kept from marrying because of state-sanctioned “animus” — an intent to deny certain people their rights — there is little escaping a constitutional violation. As a result, the defenders of gay marriage bans had to come up with a new argument to justify the bans.

“[T]he State’s whole point is that we’re not drawing distinctions based on the identity, the orientation, or the choices of anyone,” John J. Bursch, the solicitor general of Michigan, said during the oral arguments in the case, Obergefell v. Hodges. “The State has drawn lines, the way the government has always done, to solve a specific problem. It’s not meant to exclude.”

The “problem” that bans on same-sex marriage were solving, in Bursh’s view, was keeping biological parents attached to their children. How allowing gay couples to marry threatened that attachment puzzled even some of the justices — Justice Elena Kagan called the reasoning “inexplicable.” But even more bewildering, to longtime observers of the issue, is how divorced such logic was from the original motivation for the bans.

“The states’ arguments don’t pass the straight face test, no pun intended,” Judith Schaeffer, vice president of Constitutional Accountability Center, a D.C.-based legal organization, said in an interview with TPM. “These are ridiculous arguments that are being made to cover up the fact that these discriminatory laws are motivated by a desire to keep gay people out of this important legal relationship.”

To say same-sex marriage bans were never meant to “exclude” anyone is to ignore years of anti-gay sentiments — vitriolic posters and inflammatory commentary — not to mention the comments made by elected officials when defending their opposition to same-sex marriage and enacting gay marriage bans.

Texas passed its constitutional amendment banning same-sex marriage ten years ago, two years and one legislative session after passing a state Defense of Marriage Act. That meant that same-sex marriage was already illegal in the state of Texas, but the Lege wanted to make it even more illegal, and virtually impossible to overturn legislatively since a one-third minority in either chamber would be able to block it going forward. First it needed to be ratified via referendum, though, and that’s where some of the more colorful arguments in favor of the amendment took place. Looking through my archives from 2005, I spent most of my time following the folks who were working against this awful amendment, but I did link to a pair of op-eds in the Chronicle on the subject. The op-ed in favor of passing the anti-gay marriage amendment is worth your time to read. I have a hard time imagining anything like it, with its condescending and frankly insulting attitude towards same gay people in general and same sex couples in particular, would be deemed acceptable for print in a mainstream publication. I’m not going to quote any of it here because I want to encourage you to click the link and see it for yourself. We’ve come a long way in a short time, but we shouldn’t forget where we once were, and we surely shouldn’t let the people who continue to stand in our way rewrite history.

Meet your Constitutional amendments

A pretty uninspiring bunch, if you ask me.

vote-button

Now that the dust has settled on the 84th Texas Legislature, voters are getting the first official look at which constitutional amendments they will be voting on come November.

Texas Secretary of State Carlos Cascos on Wednesday took the last step to place seven propositions on this fall’s general election ballot, all of which were approved by two-thirds of all state lawmakers during the just-ended session. Per state law, they are chosen randomly in a drawing to assign the order in which each proposition will appear on the Nov. 3 ballot.

All told, they run the gamut of state issues, from the serious to the mundane, and they create a narrative of the session that is not at all inconsistent with what really happened under the Pink Dome.

Here are the amendments, in the order they will appear on your ballot.

Proposition 1 (SJR 1)

“The constitutional amendment increasing the amount of the residence homestead exemption from ad valorem taxation for public school purposes from $15,000 to $25,000, providing for a reduction of the limitation on the total amount of ad valorem taxes that may be imposed for those purposes on the homestead of an elderly or disabled person to reflect the increased exemption amount, authorizing the legislature to prohibit a political subdivision that has adopted an optional residence homestead exemption from ad valorem taxation from reducing the amount of or repealing the exemption, and prohibiting the enactment of a law that imposes a transfer tax on a transaction that conveys fee simple title to real property.”

Proposition 2 (HJR 75)

“The constitutional amendment authorizing the legislature to provide for an exemption from ad valorem taxation of all or part of the market value of the residence homestead of the surviving spouse of a 100 percent or totally disabled veteran who died before the law authorizing a residence homestead exemption for such a veteran took effect.”

Proposition 3 (SJR 52)

“The constitutional amendment repealing the requirement that state officers elected by voters statewide reside in the state capital.”

Proposition 4 (HJR 73)

“The constitutional amendment authorizing the legislature to permit professional sports team charitable foundations to conduct charitable raffles.”

Proposition 5 (SJR 17)

“The constitutional amendment to authorize counties with a population of 7,500 or less to perform private road construction and maintenance.”

Proposition 6 (SJR 22)

“The constitutional amendment recognizing the right of the people to hunt, fish, and harvest wildlife subject to laws that promote wildlife conservation.”

Proposition 7 (SJR 5)

“The constitutional amendment dedicating certain sales and use tax revenue and motor vehicle sales, use, and rental tax revenue to the state highway fund to provide funding for nontolled roads and the reduction of certain transportation-related debt.”

I will be voting No on #s 3 and 7 and probably on 1, Yes on #2, and I have no idea yet on the others. What about you?

Taking decentralization too far

Seriously?

The governor and attorney general might have to work in Austin, but under a proposed constitutional amendment, they won’t have to live there.

Under the proposed amendment, the century-old requirement that state leaders reside in the capital city would be erased and all statewide officeholders could live anywhere in Texas.

Supporters cited modern communications and transportation, saying that living in Austin is not a requisite to successfully manage their offices.

But critics suggested that elected officials should not be commuting “once a month, or once a week,” to their offices.

Rep. Tom Craddick, R-Midland, the longest-serving House member, said the amendment could be open to abuse by allowing elected officials to live hundreds of miles away from their employment.

“A lot of people think if you’re a fulltime employee, you should be here full time,” Craddick said.

“I don’t know how you can be leading an agency if you’re living in Paint Creek,” he said.

He proposed altering the proposal to allow statewide officeholders to live within 50 miles of Austin, but it was defeated.

Opponents also raised the objection that state taxpayers could be footing the bill for long commutes. Several lawmakers pointed out that a daily round-trip flight could be considered business travel for statewide officials to get to Austin and back home.

This to me is a classic solution in search of a problem. I see nothing wrong with the current setup, and no compelling reason to change it. I agree with Tom Craddick and the other critics, and will vote No on this proposal when it appears on my November ballot.

Tighter spending cap defeated

I consider this to be a victory.

BagOfMoney

The state’s constitutional spending cap will remain untouched this session, and House and Senate leaders are blaming each other for the lack of action on the arcane but politically important measure.

Senate Republicans had sought to tighten the rules that guide how much future state budgets can grow, but House and Senate negotiators said in interviews Sunday that talks between the chambers fell apart late Saturday on Senate Bill 9, the last bill standing on the matter.

“The Senate passed the people’s priorities, the Governor’s priorities and my priorities on the spending cap and ethics reform during this legislative session,” Lt. Gov. Dan Patrick said in a statement Sunday. “The House chose to ignore these very important bills.”

House Speaker Joe Straus argued it was the Senate that was intractable on an issue that defied simple answers.

“The House passed responsible, well-thought-out language that recognizes the spending limit is a complicated issue, not a sound byte,” Straus said in a statement Sunday. “The Senate rejected this approach.”

Under the Texas Constitution, state spending cannot grow faster than the state’s economy. Ahead of each legislative session, state leaders set a growth rate for state spending based on the estimated rate of growth in Texans’ personal income over the next two years. (The rate picked just before the current session: 11.68 percent.)

Gov. Greg Abbott joined Patrick in calling for basing the growth rate instead on the estimated combined growth in population and inflation, a figure that, more often than not in recent years, has been smaller in Texas than the growth in the economy. But the House, concerned about the impact on future Legislatures, preferred a non-binding measure that would have factored in how different areas of government spending grow at different rates.

In the end, the two chambers remained miles apart.

[…]

In the House, Appropriations Chairman John Otto, R-Dayton, viewed the Senate’s approach as unworkable. As the House’s lead budget writer, he also expressed concerns about how the bill would impact future Legislatures.

“All of you know we passed a very conservative budget out of the house,” Otto told House members last week. “It would have failed SB 9.”

Otto opted to replace Hancock’s population/inflation metric with limits for different areas of government spending, such as transportation and health care, with each one based on a combination of how spending in that category was expected to grow as well and how the population served by each category was expected to expand.

He also amended the bill so that those new spending limits were no longer mandatory, but would simply be reported to state leaders who then could choose to factor that information into setting the growth rate.

During negotiations with the Senate over coming up with a compromise version, Otto said his concerns about hamstringing future legislatures remained.

“I wanted it to be considered. I didn’t want it be the mandate,” Otto said. “I was happy to include what the Senate’s methodology was as well as the methodology that was in my substitute.”

Just a reminder, in addition to the existing cap, we also have a constitutional mandate for a balanced budget, which in its way serves as a spending cap, too. At a time when the state has a lot of short-term needs like its pension funds and all kinds of facilities that need maintenance, the Lege chose to hoard billions of dollars that may never get spent given how much harder it is to tap the Rainy Day fund. Restricting spending further, with a school finance ruling looming and an economy that has cooled considerably, is just plain nuts. I’m glad we managed to dodge this bullet for another biennium, but I don’t know how much longer that can happen in the absence of some fundamental changes in our politics.

The state spending cap is a stupid idea

And the Republicans want to make it worse.

BagOfMoney

Texas Senate leaders on Tuesday announced another round of efforts to change the way the state determines its two-year spending limit, and keep tax cuts from counting toward the constitutional cap on spending.

Lt. Gov. Dan Patrick joined state Sen. Kelly Hancock, R-North Richland Hills, at a Capitol press conference to announce legislation that would not allow the state’s budget to grow faster than population growth plus the rate of inflation.

State budget leaders in December pegged the state’s economic growth over the next two years at 11.68 percent, based on the projected rate of growth in Texans’ personal income. That means state spending cannot exceed $107 billion for the next biennium, leaving several billions of dollars in state coffers.

Hancock said basing economic growth projections on personal income is “a false measurement.”

“Individual income typically grows at a faster rate than the state’s economy,” he said.

Hancock’s Senate Bill 9 and Senate Joint Resolution 2, assigned low numbers as a sign of importance, would also exempt tax cuts from counting towards the spending limit. That would allow Republicans to provide billions of dollars in tax relief without having to vote to exceed the spending limit.

The proposed constitutional amendment changes the number of votes needed in both houses to exceed the spending limit from a simple majority to a three-fifths majority.

This is a companion to the earlier proposal to exempt spending on tax cuts and reducing debt from the spending cap. It’s not about spending or limiting spending so much as it is about limiting options, and it has nothing at all to do with fiscal responsibility, despite what some people want to believe. If the only things you can easily spend money on are tax cuts and reducing debt, what are you going to prioritize? The Observer points out some of the problems inherent in these ideas.

Hancock’s Senate Joint Resolution 2 and Senate Bill 9 would ask voters later this year to redefine the spending cap and tie it to state population growth, plus inflation, instead of growth in Texans’ personal income, which rises faster. It would broaden the spending cap to apply to all of the state’s spending, instead of just certain kinds.

That would bind the hands of future legislatures even tighter, while ensuring that more and more revenue would be untouchable beyond the cap. Legislators could still vote to bust the cap—though few seem to have the political courage to do that now—but Hancock would make that harder, too. Right now, the cap can be lifted by a simple majority of both houses. Hancock would make it a three-fifths vote.

If passed, Patrick’s two budget proposals don’t technically contradict—actually, they’d be weirdly toxic (or synergistic, depending on your perspective) in combination, since more and more money would end up on the wrong side of the spending cap, and that money could only be used for tax cuts and debt—but it’s still a weirdly incomprehensible mess from a policy perspective, and put together seemingly on the fly. It’s the art of government as outlined on the back of a Gadsden Flag cocktail napkin.

What’s worse—it’s straight out of Sacramento. You know how the recent recession calcified a Texas meme about the Golden State being the worst place on earth? California is doing pretty well lately, though you won’t hear about it in Austin. But one of the ways California got itself into a mess over the last few decades was by tying the hands of future legislatures and restricting the state’s ability to raise revenue, all the while kicking tough (and easy) decisions to voters. All three are becoming more and prominent parts of the Texas model—paradoxically, done in the name of targeting “California-style” spending.

You think the Lege engages in shenanigans and sleight of hand now to meet the constitutional mandate for a balanced budget? (And by the way, doesn’t that already serve as a spending cap?) Just wait till they’re foolish enough to put more obstacles in their own path. Whether they like it or not, ultimately stuff needs to be done. Why make it harder than it needs to be? It’s even more ludicrous hearing anyone talk about this as if it represented “discipline”. Last I checked, being disciplined meant having the restraint to not do unwise but tempting things. If you have to be handcuffed to a pole to ensure you don’t do them, you’re not disciplined.

But there’s another factor to consider as well. The budget is in surplus now, but the state has many documented needs. Roads, water, education, pension funds, and a laundry list of deferred maintenance that’s causing some of the people responsible for deferring it some poetically just problems, and so on. As someone who is old enough to remember the budget crunch of 2011 – which largely turned out to be the fault of a Comptroller who couldn’t do arithmetic – I heard the hoary old “household budget” metaphor dragged out to justify savage cuts so many times that if I’d received a nickel each time, I’d have a bigger surplus than the state does right now. Well, there’s a household budget metaphor for good times, too. When households are sitting on a pile of extra cash, they tend to the needs that they have build up over time. They fix things. They upgrade. They maintain. They invest in the care and wellbeing of their household, both the physical structure and the residents of it. Everyone recognizes such behavior as being responsible and necessary. Putting another artificial constraint on spending, especially now, is the opposite of that. It ensures that the problems we have now, both the ones we try to deal with and the ones we continue to ignore, will get worse and be more expensive to deal with later. How is this a good idea? Republicans are going to do what Republicans are going to do, but any Democrat who signs onto this needs to rethink their priorities. Eye on Williamson has more.

Working for progress on LGBT issues

I’m always a little wary when I see a phrase like “chipping away” in a story about LGBT issues, but in this case it refers to obstacles, not hard-won victories, so it’s OK.

RedEquality

The rights and interests of homosexual Texans will be in the spotlight like never before next year, as the state’s same-sex marriage ban gets a long-awaited hearing in federal court and lawmakers take up a slate of bills that address everything from employment and insurance discrimination to local equal rights ordinances.

“In Texas, it’s very difficult with the makeup of the Legislature to pass anything,” said Rep. Garnet Coleman, D-Houston. “But it’s called chipping away – keep bringing the issue – until one day it passes.”

[…]

Daniel Williams, of Equality Texas, said he believes there is a “realistic opportunity” to pass legislation allowing both same-sex partners to be listed on birth certificates, and to remove a provision in state law that criminalizes sexual relationships between some same-sex teenagers.

Other bills have been filed to prohibit discrimination based on sexual orientation and gender identity in public school sex education classes, and for insurance companies and state contractors. Two bills, by [Sen. Jose] Rodriguez and his El Paso colleague Joe Moody, are seeking to remove from state law books an unconstitutional, unenforceable statute that criminalizes sodomy.

Williams also is interested to see whether Gov.-elect Greg Abbott will break with his predecessor by pushing state compliance with federal mandates to reduce the prison rape rate – which disproportionately impacts gay and transgender inmates – and whether more municipalities follow San Antonio, Houston and Plano’s lead in passing non-discrimination ordinances.

Don’t forget about Plano, too. There’s a reason all those hateful pastors are freaking out about this – they know they’re losing. Bills have been filed by Rep. Coleman and others to repeal Texas’ ban on same-sex marriage and to fix the birth certificate problem as noted, and there’s a broader organization being formed to help press the case in Austin. That’s all good and necessary and I have some hope as well, but I suspect that once all is said and done simply not losing ground will be seen as a win with this Legislature.

As for Sen. Donna Campbell’s effort to supersede local efforts by filing a resolution that would block any local rule or state law that infringes on “an individual’s or religious organization’s … sincerely held religious belief,” advocates think the business community will come out against it as they did against similar legislation in Arizona.

“Yes, you can talk about taking power away from those local leaders, but there’s going to be a lot of pushback from the local elected officials and their constituents,” said Jeff Davis, chairman of the Texas chapter of the Log Cabin Republicans, a national group made up of gay members of the GOP and their allies. He said Campbell’s resolution likely would generate “a lot of talk,” but he believes the effort “isn’t going to move completely forward.”

Meanwhile, religious leaders waging a legal battle against Houston’s non-discrimination ordinance are banking on the increasingly-conservative Legislature to support their efforts. While they await a 2015 court date to determine whether enough signatures were gathered to force a local referendum on the Houston ordinance, they have turned their eyes to Plano, which passed a similar ordinance earlier this month.

“These ordinances are solutions looking for a problem,” said David Welch, director of the Houston-based Texas Pastors Council, which filed a petition against the Plano ordinance this week. “It is a special interest group representing a tiny fraction of the population using the power of law to impose their lifestyle and punish those that disagree with them.”

He said the council will continue to work with lawmakers on legislation that could undo these ordinances at the state level, as well as reaffirm current law that enshrines marriage as between one man and one woman.

It would be nice if the business lobby puts some pressure on to kill not just Campbell’s bill but all of the pro-discrimination bills that Campbell and others are filing, but don’t expect me to have any faith in their efforts. At least as far as constitutional amendments go, there are enough Democrats to keep them off the ballot, barring any shenanigans or betrayals. It would be nice to think that Republicans can play a key role in preserving existing protections, if not expanding them, but there’s no evidence to support that idea at this time with this Legislature. We need to win more elections, that’s all there is to it. Let’s make it through this session unscathed and get started working on that part of it ASAP. BOR has more.

Villalba gets defensive about his pro-discrimination bill

I don’t know if Rep. Jason Villalba is willfully dense or just confused, but either way this is a big pile of BS.

RedEquality

State Rep. Jason Villalba (R-Dallas) remains adamant that a proposed constitutional amendment he filed earlier this month isn’t intended to undermine local ordinances prohibiting anti-LGBT discrimination.

But Villalba also continues to tout the fact that he received input in drafting the amendment from a lawmaker known for his anti-LGBT views and from the Liberty Institute, which is actively fighting a nondiscrimination ordinance in Plano.

Villalba has characterized his HJR 55 as a tamer version of SJR 10, a similar religious freedom amendment introduced in the Senate by Donna Campbell (R-New Braunfels).

And Villalba has objected to a “license to discriminate” label that was attached to his amendment in an Observer headline and in a fundraising appeal from Progress Texas, denying accusations that the measure is designed to undermine local nondiscrimination ordinances by allowing business owners to claim religious exemptions.

“Not true at all,” Villalba told Breitbart Texas for an article published Sunday. “That was not our intention at all. … I’m not trying to pander to the right, or to offend the LGBT community or to support discrimination.”

Villalba told Breitbart he supports the authority of local governments to pass LGBT-inclusive nondiscrimination ordinances, and said HJR 55 is instead designed to protect things like nativity scenes on government property.

But LGBT advocates continue to question Villalba’s motives—particularly since he unveiled HJR 55 on Facebook by posting an Empower Texans article slamming the Plano ordinance shortly after it passed. “We must stand athwart those who seek to eliminate every vestige of our religious heritage from the public square,” Villalba wrote. “Tomorrow, we fight back.”

On Monday morning, Villalba took to Facebook again to post the Breitbart article, writing above it: “Many of you have asked about what HJR 55 actually does. In essence, it protects the free exercise of religion in Texas. Here is an article that spells it out nicely. Special thanks to Matthew Krause and Liberty Institute for their help and insight in putting this together.”

Rep. Krause (R-Arlington) received the lowest score of any lawmaker on LGBT issues from Equality Texas following the 2013 session.

In response to a comment below his Facebook post Monday from this reporter, Villalba sent a chat message referencing Campbell’s resolution.

“Perhaps I should drop HJR 55 and let the alternative version pass,” Villalba wrote. “Is that what you would prefer?”

Asked whether he believes Campbell’s resolution, which has been defeated in three consecutive sessions, would pass in 2015, Villalba referenced an expected shift to the right in the Senate next year thanks to November election results.

“Have you not seen what just happened in the Senate?” Villalba wrote. “It [SJR 10] would easily pass.”

Asked whether he strategically introduced HJR 55 as a more moderate alternative to SJR 10, Villalba said: “My goal is to pass the best bill that advances the cause of religious liberty.”

See here for the background. It’s hard to know where to begin with all this. If there’s one thing I’ve learned in recent years, it’s that when someone who isn’t me says that something will affect them negatively, it’s best for me to at least hear and try to understand their reasons why they say that thing will harm them before I try to explain to them why they’re wrong to feel that way. Perhaps such an approach might benefit Rep. Villalba as well. As for his insistence that his HJR 55 is but a heroic attempt to head off the much worse SJR 10, it might be worthwhile for someone to explain to Rep. Villalba that if he were to vote against SJR 10, the odds are very good that it would not be able to pass out of the House, what with Democrats being in near-unanimous opposition plus the expected No from Rep. Sarah Davis. But really, a little more listening to the people who would be harmed and a little less listening to the people who would harm them would go a long way.

Republicans will push pro-discrimination bills

I have three things to say about this.

RedEquality

Two days after the Plano City Council approved an ordinance prohibiting discrimination against LGBT people, a Texas legislator filed a proposed constitutional amendment that would limit the ability of cities to enforce such laws.

On Wednesday, Rep. Jason Villalba (R-Dallas) filed House Joint Resolution 55, which is similar but not identical to Senate Joint Resolution 10, filed last month by Sen. Donna Campbell (R-New Braunfels).

Rep. Jeff Leach (R-Plano), one of several lawmakers who sent a letter to the Plano City Council opposing the nondiscrimination ordinance, also announced on Twitter Tuesday that he’s drafting a bill “to protect Texas business owners from unconstitutional infringements on their religious liberty.” As of Thursday morning, Leach’s bill hadn’t been filed, and he didn’t return a phone call seeking comment.

Nevertheless, a month before the session begins, the flurry of legislation suggests that, thanks in part to the legalization of same-sex marriage across much of the nation, conservatives will challenge gays rights in the name of religious freedom in the 84th Texas Legislature.

The resolutions from Campbell and Villalba would amend the Texas Constitution to state that government “may not burden” someone’s “sincerely held religious belief” unless there is a “compelling governmental interest” and it is the “least restrictive means of furthering that interest.”

Experts say such an amendment would effectively prevent cities that have passed LGBT-inclusive nondiscrimination ordinances from enforcing them. In addition to Plano, those cities include Austin, Dallas, Fort Worth, Houston and San Antonio.

That’s because business owners could claim exemptions from the ordinances if they have sincerely held religious beliefs—such as opposition to same-sex marriage—making it legal for them to fire employees for being gay or refuse service to LGBT customers.

“It blows a hole in your nondiscrimination protections if people can ignore them for religious reasons,” said Jenny Pizer, senior counsel at the LGBT civil rights group Lambda Legal.

But Pizer and others said an even bigger problem could be the amendments’ unintended consequences.

Daniel Williams, legislative specialist for Equality Texas, said in addition to the First Amendment, the state already has a statute that provides strong protections for religious freedom—known as the Religious Freedom Restoration Act, or RFRA. But Williams said the proposed constitutional amendments would supplant RFRA and go further, overriding exceptions in the statute for things like zoning regulations and civil rights laws.

[…]

Williams noted that similar resolutions from Campbell have failed in previous sessions. Amending the state Constitution requires two-thirds support in both chambers as well as a majority public vote.

“That’s a very high bar, and the Legislature’s a deliberative body,” Williams said.

But Williams said the key to defeating the legislation this go-round will be economic arguments.

“This would have a detrimental affect on businesses that are looking to relocate to Texas,” he said. “Businesses that want to relocate to Texas will think that their LGBT employees and the family members of their LGBT employees are not going to be welcome.”

1. Between equality ordinances, plastic bag bans, payday lender regulations, and anti-fracking measures, the obsession that Republican legislators may have this session with nullifying municipal laws may overtake their obsession with nullifying federal laws. I continue to be perplexed by this obsession.

2. We are all clear that these “freedom to discriminate” bills are, intentionally or not, also about the freedom to discriminate against Jews or blacks or whoever else you don’t like, right? I mean, every time they get pinned down on it, proponents of such bills admit as much. I don’t suppose it has ever occurred to the Donna Campbells of the world that one of these days they themselves could be on the receiving end of such treatment, if someone else’s sincerely held religious beliefs hold that antipathy towards LGBT folks is an abomination before God. I’m just saying.

3. Assuming Speaker Straus maintains the tradition of not voting, the magic number is fifty, as in fifty votes in the House are needed to prevent any of these travesties from making it to your 2015 ballot. There are 52 Democrats in the House, plus one officially LGBT-approved Republican, so there are three votes to spare, assuming no other Republicans can be persuaded to vote against these. We know that there are four current House Dems that voted for the anti-gay marriage amendment of 2005. One of them, Rep. Richard Raymond, has since stated his support for marriage equality. Another, Rep. Ryan Guillen, may be persuadable. The current position of the others, Reps. Joe Pickett and Tracy King, are unknown. Barring any absences or scheduling shenanigans, we can handle three defections without needing to get another R on board. This is the key.

(Yes, eleven votes in the Senate can also stop the madness. Unfortunately, one of those votes belongs to Eddie Lucio. I’d rather take my chances in the House.)

Unfair Park and Hair Balls have more.

Texas’ first same-sex marriage

Fascinating story.

More than 40 years ago in a small chapel off the Gulf Freeway, a hulking ex-tackle from Brownsville slid a ring onto the finger of his partner, transforming the slight man wearing a blond bouffant wig standing opposite him into his husband. In their hands they clasped the first marriage license ever given to a same-sex couple in Texas.

The story of Antonio Molina and William “Billie” Ert is full of firsts. It marked Texas’ first gay marriage and the first recorded instance of a same-sex couple receiving a license to wed in the Lone Star State. It was also stained by finality, a quixotic love story that set back the Texas gay marriage movement 40 years while also helping to inspire a generation of civil rights advocates.

By 1970s standards, Molina and Ert’s story went viral, making front-page headlines from El Paso to East Asia. “Two men seal vows with a kiss,” the Denton Record-Chronicle reported on Oct. 6, 1972. The Straits Times of Singapore’s headline read, “And then they were wed … HE to HIM.”

Molina’s hometown newspaper, the Brownsville Herald, ran a photo of the beaming couple holding their marriage certificate, he in a suit and tie and Ert in a white beaded dress, elbow gloves and wig. That wig, it turns out, was what separated their success from the handful of gay couples who already had attempted to get married.

“We wouldn’t have issued any license if we’d known he wasn’t a female,” Wharton County Clerk Delfin Marek said at the time. His deputy said Ert’s “frosted shoulder length wig” fooled her.

[…]

The couple had been together for a number of years when they exchanged rings in a small ceremony at Houston’s Harmony Wedding Chapel, Rev. Richard Vincent, who officiated the ceremony, told The Advocate two days after their wedding.

“We marry souls, not bodies,” said Vincent, an activist minister who helped found the gay-friendly Dallas Metropolitan Community Church. “They met the requirements as set forth by the church; they love each other, and they had a license, as I signed it. As far as I’m concerned, they are married in the eyes of God and in the eyes of Texas.”

The timing of the marriage was perfect for homosexual activists.

The U.S. Supreme Court was poised to hear the case of another gay couple who sought and failed to receive a license in Minnesota, Jack Baker and James McConnell. While awaiting on the High Court to rule, Baker and McConnell quietly went to another Minnesota county, obtained a license and were married in 1971.

By the time Molina and Ert tied the knot, a handful of other same-sex couples from Washington State to Kentucky had tried unsuccessfully to follow in Baker and McConnell’s footsteps. The nascent gay rights movement, born in the wake of a police raid on a Greenwich Village gay club known as the Stonewall Inn, seemed poised for a breakthrough.

The public and the courts, however, were not ready.

“When Antonio and Billie tried to marry, the medical profession considered homosexuality a mental illness. Most states, including Texas, criminalized it, and there were no legal protections for gays and lesbians anywhere,” said Mark Phariss, who currently is challenging Texas’ gay marriage ban with his partner, Victor Holmes.

Read the whole thing, it’s worth your time. I had no idea about any of this. Kudos to Chron reporter Lauren McGaughey for digging it all up. In 1973, the Legislature closed this loophole in the law by changing the wording that allowed “any two persons” to get married to “a man and a woman”; the Lege made another change in 1997 to make this more explicit, and then of course there was that awful constitutional amendment of 2005, which I call the Double Secret Anti-Gay Marriage amendment since it made illegal something that was already illegal. Now of course we have a judge’s ruling against said amendment, and a motion to lift the stay on that ruling, which would allow modern couples to formally and officially do what Molina and Ert wanted to do all those years ago. I’d love to know what those two thought about all this, but Molina died in 1991, and Ert could not be found. We’ll just have to leave that part to our imaginations, but there is this to guide us:

Ert and Molina had no way to know what, if any, effect their actions could have on future same-sex couples. In a letter to the gay publication DAVID 41 years ago, however, Ert echoed the hopes and arguments of today’s same-sex marriage advocates.

“This is 1973 and not 1956,” Ert wrote. “I see no reason why the gay community should have to hide behind closed doors to live and love who they wish, be them two females or two males. The U.S.A. is the Land of the Free, so they say, and tell us.”

Thankfully, it’s not 1973 any more, either. Wherever you are, Antonio Molina and Billie Ert, I hope you’re happier now. Swamplot has more.

Legislation to overturn same sex marriage ban filed

Someone’s gotta do it, and you know it won’t be Republicans.

RedEquality

Kriselda Hinojosa recalls how she unintentionally came out to her father in sixth grade.

“He actually saw me kissing my girlfriend at the time,” Hinojosa said. “So he caught me, but he didn’t get upset. He never yelled at me or anything. He was always very open-minded. I’ve never heard him talk bad about the LGBT community.”

Over the years, the now-32-year-old Hinojosa said, her father’s acceptance has evolved into righteous indignation over the fact that his only daughter doesn’t have equal rights. Two years ago, Hinojosa “eloped” to Las Vegas with her girlfriend for a same-sex commitment ceremony. When she returned to Texas, it hit home for her dad that their certificate means nothing in the eyes of the state.

In 2013, Hinojosa’s father, state Sen. Juan “Chuy” Hinojosa (D-McAllen), authored a bill to legalize civil unions in Texas. And on Father’s Day this year, he penned a heartfelt pro-equality letter to his daughter that was published in newspapers statewide.

On Monday, Sen. Hinojosa took his support a step further, introducing a bill to repeal Texas’ constitutional amendment banning same-sex marriage on the first day of pre-filing for the 2015 legislative session. Hinojosa’s bill, SB 98, is one of several that were set to be filed Monday that—if all were to pass—would have the combined effect of legalizing same-sex marriage in Texas pending a public vote.

“He says he’s proud of me, but I’m more proud of him,” Kriselda Hinojosa said. “He’s taking a risk, also, because he could actually lose supporters, but it doesn’t seem to phase him. He’s doing what he thinks is right.”

Rep. Garnet Coleman (D-Houston) filed a companion to Hinojosa’s bill, HJR 34, aimed at repealing the marriage amendment, which was approved by 76 percent of voters in 2005. To pass, the amendment repeal bills would need a two-thirds majority in both chambers, as well as a simple majority at the ballot box.< Meanwhile, state Rep. Rafael Anchia (D-Dallas) and Sen. Jose Rodriguez (D-El Paso) were set to file legislation Monday that would undo Texas’ statutory bans on same-sex marriage, which passed in 2003. Anchia’s bill is HB 130, and Rodriguez’s measure was piggy-backed on Hinojosa’s SB 98. The statutory changes would have no impact until the constitutional amendment is repealed.

We’ve been down this road before. What I said then largely applies now, and I don’t expect any different outcome. An x-factor in this is the Fifth Circuit, whose actions on the appeal of DeLeon v. Perry could possibly inspire some backlash. If there’s one achievable thing I’d like to see happen on this, it’s for there to be a fully unified Democratic response to these bills. I’d like to see the few remaining holdouts in our caucuses finally get right on this issue.

Actually, there’s a bigger reason why we’ll need to stand together on this.

Texas tea party Sen. Donna Campbell, R-New Braunfels, introduced a measure Monday that could effectively allow businesses to turn away gay customers — or fire LGBT employees — under the guise of religious freedom.

On the first day of pre-filing for the legislative session that begins in January, Campbell introduced Senate Joint Resolution 10. The resolution, which proposes a constitutional amendment “relating to a person’s freedom of religion,” reads as follows:

Government may not burden an individual’s or religious organization’s freedom of religion or right to act or refuse to act in a manner motivated by a sincerely held religious belief unless the government proves that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. For purposes of this subsection, the term “burden” includes indirect burdens such as withholding benefits, assessing penalties, and denying access to facilities or programs.

Campbell introduced a nearly identical measure two years ago, but it died in committee. The 2013 measure was supported by the anti-LGBT group Texas Values and opposed by Equality Texas.

Texas already has a statute, the Religous Freedom Restoration Act (RFRA), that provides strong protections for religious freedom. However, critics say Campbell’s proposal would go much further than the Texas RFRA.

For example, while the RFRA says government “may not substantially burden” an individual’s religious freedom, SJR10 states only that government “may not burden” an individual’s religious freedom. Removing the word “substantially” would significantly alter the scope of the law, as outlined in testimony from former state Rep. Scott Hochberg in 2013. Also, unlike the RFRA, Campbell’s proposal doesn’t include exceptions for enforcement of civil rights laws.

In other words, this would overturn the Houston Equal Rights Ordinance, and a whole lot besides. Because “local control” goes out the window when the locals do something the hegemons don’t like. Be that as it may, no Democrat should consider voting for this. Let the Rs own every piece of the same sex marriage ban as well as this abomination when SCOTUS finally takes up the question, whichever way they go. The people are ready for the unjust marriage ban to be repealed. Let’s give them what they want. LGBTQ Insider has more.

Another voter ID lawsuit filed

Well, this is interesting.

Still the only voter ID anyone should need

Still the only voter ID anyone should need

While a federal judge in Corpus Christi mulls whether the state’s requirement to show photo ID to cast a ballot violates the federal Voting Rights Act, a judge on the highest criminal appeals court in Texas is taking another approach: He’s suing the state over its relatively new voter ID law.

Judge Lawrence “Larry” Meyers’ lawsuit, filed in Dallas County, claims the voting law enacted last year violates the Texas Constitution because it attempts to “prevent” voter fraud, something he says the state’s governing charter never intended.

Meyers’ lawsuit states that “the Texas Constitution gives the Texas Legislature power solely to ‘detect and punish’ election fraud when it has already occurred.” In an interview on Wednesday, Meyers said the Constitution says nothing about preventing election fraud.

“It’s legally unconstitutional and it’s an affront to every voter in the state of Texas,” Meyers said.

[…]

One law professor says Meyers’ close read of the Texas Constitution may be a little too tight for any court to accept, particuarly because Meyers does not prove that he was a party injured by the law.

“I think he’s trying to make a point that this law is not really necessary in order to try to prevent voter fraud,” said Charles “Rocky” Rhodes, a professor who teaches at South Texas College of Law in Houston. “But just because the law may not be necessary does not make a state constitutional violation.”

But Meyers says he doesn’t have to prove injury, only standing.

Andrew Sommerman, Meyers’ attorney, says his client and all Texas voters are injured parties because the law dissuades people from voting.

“The statute presumes our guilt before we go to the voting booth,” Sommerman said. “A voting booth is not a place that everyone is guilty of a crime before we vote.”

It’s certainly an interesting premise, but like Prof. Rhoades I am a bit dubious. I’m also not a lawyer, so that’s just my layman’s gut feeling. I think the plaintiffs in the federal lawsuit laid out a perfectly solid case against this needless and harmful law, but you never know what can happen once the Fifth Circuit and SCOTUS get involved. We’ll see if anything comes of this.

Ninety years later, we could still use an Equal Rights Amendment

I have three things to say about this.

Drafted by a suffragette in 1923, the Equal Rights Amendment has been stirring up controversy ever since. Many opponents considered it dead when a 10-year ratification push failed in 1982, yet its backers on Capitol Hill, in the Illinois statehouse and elsewhere are making clear this summer that the fight is far from over.

In Washington, congresswomen Jackie Speier, D-Calif., and Carolyn Maloney, D-N.Y., are prime sponsors of two pieces of legislation aimed at getting the amendment ratified. They recently organized a pro-ERA rally, evoking images of the 1970s, outside the U.S. Supreme Court.

“Recent Supreme Court decisions have sent women’s rights back to the Stone Age,” said Speier, explaining the renewed interest in the ERA. The amendment would stipulate that equal rights cannot be denied or curtailed on the basis of gender.

[…]

Written by Alice Paul — a leader of the women’s suffrage movement in the U.S. a century ago — the Equal Rights Amendment was introduced annually in Congress from 1923 to 1970, when congressional hearings began in the heyday of the modern feminist movement. In 1972, the ERA won overwhelming approval in both chambers and was forwarded to the 50 state legislatures in search of the needed 38 votes to ratify.

Congress set a deadline of 1979, at which point 35 states had ratified the ERA. The deadline was extended to 1982, but no more states came on board, and the Supreme Court upheld a ruling that the ERA was dead.

The states that did not ratify were Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah and Virginia.

Aside from Illinois, there have been few signs that any of those states are on the verge of ratifying the ERA. In politically divided Virginia, the Senate voted 25-8 vote this year for ratification, but the measure died in a committee in the Republican-controlled House of Delegates.

In Congress, ERA supporters have introduced two measures in pursuit of ratification.

One — known as the “three-state strategy” — is a resolution that would nullify the 1982 deadline so that only three more states would need to ratify the ERA in addition to the 35 that did so in the 1970s.

The other measure would restart the traditional process, requiring passage of the ERA by a two-thirds majority in the U.S. Senate and House, followed by ratification by legislatures in three-quarters of the 50 states.

1. As a child of the 70s, I remember the debates about the ERA, though I doubt I really understood them at the time. I definitely remember the lies and FUD that were being spread by the likes of Phyllis Schlafly. Given the current events in Houston, it sure is the case that some things never change.

2. Hard to believe, but not only was Texas one of the states that ratified the ERA, the Lege did so almost immediately after passage of the originating bill in Congress. I can’t even begin to imagine that now. I guess some things do change, just not always for the better.

3. The alternate history possibilities for a universe in which the ERA got ratified are endless. Bear in mind, Richard Nixon endorsed the ERA when it was passed by Congress in 1972. Needless to say, the party of Erick Erickson does things a little differently these days. I still don’t quite understand why there was a deadline on state passage back then, but it’s never too late to try again.

It really is about more than just marriage

Jo Ann Santangelo writes for the Observer about what it means to be in a same-sex marriage that isn’t recognized as legal by the state of Texas.

RedEquality

In 2012, my wife, Kate, and I traveled more than 3,400 miles from Austin and back to marry legally in New York City. Seven years earlier, in November 2005, our fellow Texas voters had approved Proposition 2, amending the Texas Constitution to declare that “Marriage in this state shall consist only of the union of one man and one woman,” thereby banning same-sex marriage within the state’s borders.

Like other same-sex couples who live in Texas, we are denied access to 1,138 federal rights, benefits and privileges because our marriage is not recognized here. That list, tallied in a 2003 report by the General Accounting Office, includes Social Security, military and veterans’ benefits, employment rights, and immigration and naturalization privileges.

In the eyes of Texas, Kate is not my next of kin. To approximate the status that a legally recognized marriage would confer, our attorney has recommended that we file six different contracts: a medical power of attorney and Health Insurance Portability and Accountability Act release; statutory durable power of attorney; declaration of guardian; directive to physicians; appointment of agent to control disposition of remains; and a last will and testament.

We have recently begun trying to become parents. Kate will be the birth mother. A lawyer has been necessary in this process as well. Months ago we started discussing the paperwork that will be required for me to adopt our child. We discovered that even after I file this paperwork, am screened and declared a fit mother by Child Protective Services, and appear in front of a judge, my name can never appear on our child’s birth certificate due to Texas Health and Safety Code 192.008, which states, “The supplementary birth certificate of an adopted child must be in the names of the adoptive parents, one of whom must be a female, named as the mother, and the other of whom must be a male, named as the father.”

You can see that GAO report here; it’s actually an update to a report from 1997, prepared after the passage of the now-unconstitutional Defense of Marriage Act that listed a mere 1,049 “federal statutory provisions classified to the United States Code in which benefits, rights, and privileges are contingent on marital status or in which marital status is a factor”. All these rights that the rest of us get to take for granted were a part of the argument against Prop 2 in 2005, but unfortunately they fell on deaf ears. The courts are likely to grant same sex couples the right to have their marriages recognized and to get married wherever they want, but a lot of those “benefits, rights, and privileges” are codified into state laws as well, and their practical effect won’t disappear overnight when and if SCOTUS makes a favorable ruling in the Utah case. As the Riggs and Hanna case showed, there are lots more issues to be sorted out, and this will take time because the Lege is unlikely to deal with the business of repealing these soon-to-be-unconstitutional laws. I mean hell, the anti-sodomy statute struck down by the Lawrence ruling of 2003 is still on the books. It’s going to take a lot of court cases clear these matters up one by one, which will mean a lot more harm and hardship to many same sex couples.

In her essay, Santagelo talked to six other same sex couples about their experiences, including one of the two couples that served as plaintiffs in the case that struck down Texas’ marriage law, which is now pending appeal.

Nicole: “[When we were discussing having children] we thought, ‘Do we get married now even though it’s not legal in our own state?’ We knew we wanted to have kids, but we didn’t want to have kids and not be married. We’re both pretty traditional people. There’s just no way we’re going to have kids out of wedlock, and I wanted to be able to tell [our son] that we’re as married as we can possibly be. … She had an inordinately hard labor, a C-section that wasn’t planned. It became an emergency. For about 30 minutes we didn’t know what was going to happen.”

Cleo: “It only comes up in some of the most vulnerable times. During the labor and delivery—you can’t adopt a child while he or she is in utero, so if something had happened … they become essentially orphans, they don’t have a second parent. The [legal arrangements] that we had, she could make decisions for me. She couldn’t make health decisions for him. We didn’t even think of that. You don’t think about those things. You think that you’re covered, you talk to your lawyer, you’ve got everything filed and prepared and ready, and then you’re in this situation and all of a sudden it dawns on you, ‘Oh my God.’ It really drove home the need to change the laws in this state. … So we are vulnerable, and that’s one of the reasons why we feel so strongly about the lawsuit that we’re in. We want to make sure that all the default laws that are afforded to different-sex couples are given to us as well, because we’re a family and we feel that if the state really wants to promote responsible procreation, then why are you making it harder for us?”

Nicole: “You don’t have an accidental kid in a gay relationship. There is so much intention and planning that goes into having a kid. There’s nothing irresponsible about that.”

Reading that just kills me. I can’t begin to wrap my mind around the hell that Nicole Dimetman and her son would have faced if tragedy had struck, but the point is that she shouldn’t have had to think about that. The sooner we as a society fix this injustice, the better.

What anti-gay bills?

From Lone Star Q:

RedEquality

Ken Paxton, the odds-on favorite to be Texas’ next attorney general, says he isn’t familiar with recent “license to discriminate” bills in Arizona, Kansas and other states even though he co-authored a similar measure in 2013.

Gay Realtor and LGBT activist Bob McCranie asked Paxton about his position on the anti-gay bills during a meeting of the Women’s Council of Realtors of Collin County on Wednesday.

[…]

It seems strange that Paxton doesn’t know anything about these bills, given that he authored a  similar measure during the 2013 session. In fact, the bill by Paxton and fellow tea party Sen. Donna Campbell, called the Texas Religious Freedom Amendment, went a step further. It  would have enshrined the right to discriminate against gays or any other group based on religious beliefs into the Texas Constitution. The bill was backed by anti-gay groups including the Liberty Institute and Texas Values, but it died amid opposition from groups like Equality Texas and concerns about unintended consequences. Namely, critics questioned whether the amendment would strengthen Westboro Baptist Church’s right to picket funerals or establish abortion as a religious right.

It makes you wonder whether Paxton even considered the ramifications of his own bill, or if he was just blindly marching behind the banner of “religious freedom” to score political points.

LSQ has a transcript and recording of the conversation, so go check it out. The bill in question is SJR4, which thankfully never made it out of committee. The critical bit from the text of the joint resolution is “The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.” I think we all understand what that means. Well, all of us except Sen. Campbell – seriously, click that Texas Monthly link and get an appreciation of just how dim a bulb she is. In any event, Paxton needs to be pinned down on this. Sam Houston, please pick up this ball and run with it.

Federal judge denies Abbott motion to consolidate same sex marriage lawsuits

From Lone Star Q:

RedEquality

A key hearing in a federal lawsuit challenging Texas’ same-sex marriage bans will go forward next month in San Antonio.

U.S. District Judge Orlando L. Garcia, of the Western District of Texas, on Wednesday rejected Texas Attorney General Greg Abbott’s latest effort to transfer the lawsuit from San Antonio to Austin.

Garcia cited key differences between the San Antonio lawsuit, known as DeLeon v. Perry, and two other lawsuits challenging the marriage bans that are pending before U.S. District Judge Sam Sparks in Austin. Garcia’s decision to deny Abbott’s motion means a hearing in DeLeon v. Perry will take place as scheduled in February.

“The Court finds that while both lawsuits filed in the Austin court share a common issue with the present lawsuit in that all Plaintiffs challenge he constitutionality of Defendants’ refusal to let them marry their same-sex partners, the three lawsuits differ in important respects,” Garcia wrote.

That hearing will be on February 12. Previously, Abbott had petitioned Judge Sparks to consolidate the lawsuits, which do have some key differences, but Judge Sparks denied the request. Neel McLane, the attorney for the San Antonio plaintiffs, thinks Abbott has been forum shopping.

U.S. District Judge Orlando L. Garcia, who presides over the Western District of Texas’ San Antonio district, is a President Bill Clinton appointee. Garcia also happens to be the brother-in-law of Sen. Leticia Van de Putte, a Democrat and marriage-equality supporter who’s running for lieutenant governor in 2014. Legal experts say they believe there’s a good chance Garcia will rule in favor of marriage equality in DeLeon v. Perry, a lawsuit filed in his court in October alleging Texas’ marriage bans are unconstitutional.

[…]

Lane said Abbott’s office wants the cases before Sparks, who gave preliminary indications at [a hearing on January 9] that it won’t be easy to convince him to strike down the state’s marriage amendment.

“He [Sparks] did suggest it was going to be a difficult showing to make,” Lane said.

Of course, from there it would be appealed to the Fifth Circuit, where good things go to die. But it would still be a big step forward.

The state of Texas is sure to fight this every step of the way. At least, that would be the case as long as there is a fanatical enemy of marriage equality infesting the Attorney General’s office. If a proponent of marriage equality were to be elected, we might see what Virginia is seeing, where its newly-elected AG is declining to defend that state’s ban on same sex marriage.

Virginia’s new attorney general has decided to switch sides in an important case that is challenging the state’s constitutional ban on gay marriage.

In an interview with Morning Edition’s Steve Inskeep, Democrat Mark Herring said his office will no longer defend the state’s ban on same-sex marriages.

“As attorney general, I cannot and will not defend laws that violate Virginians’ rights,” Herring said. “The commonwealth will be siding with the plaintiffs in this case and with every other Virginia couple whose right to marry is being denied.”

Herring was sworn in just days ago after a razor-thin win in November, an election that marked big political change in the state and also ushered in Democrat Terry McAuliffe to the governor’s mansion. Herring is taking over for Ken Cuccinelli, a Republican who ran and lost a bid for governor on a Tea Party platform and was a staunch defender of the gay-marriage ban.

Herring said as he came into office, he asked his staff to review Bostic v. Rainey and, after careful consideration, he came to the conclusion that the ban violates the Equal Protection Clause of the 14th Amendment of the Constitution.

[…]

Herring’s solicitor general will tell a federal judge in Norfolk next week that Virginia is joining the plaintiffs in the case, that the state agrees a ban on gay marriage denies some couples in the state what the Supreme Court has called a fundamental right.

Herring said he’s doing it for Virginians. That’s when Steve reminded him that the amendment to Virginia’s Constitution defining marriage as only between a man and woman was approved by 57 percent of voters in 2006.

Herring said that his job is to defend laws that are constitutional. This one, he said, isn’t. Also, Herring added, he wants his state to be on the right side of history.

“There have been times in some key landmark cases where Virginia was on the wrong side, was on the wrong side of history and on the wrong side of the law,” Herring said. “And as attorney general, I’m going to make sure that the [people] presenting the state’s legal position on behalf of the people of Virginia are on the right side of history and on the right side of the law.”

Consider that a reason to vote for Sam Houston, if you needed one. Herring is not the first AG to reach this conclusion.

It is not the first time an attorney general has decided to stop defending their state’s gay marriage ban. In Pennsylvania, Attorney General Kathleen Kane said last year that she would stop defending that state’s gay marriage ban, also calling it unconstitutional. An outside law firm was hired to represent the state in a lawsuit over the ban.

And before that, the state of California declined to defend Prop 8, and the federal government declined to defend DOMA. It’s one thing to be dealt a losing hand, it’s another to be dealt a hand you don’t believe should be played at all. The fall of DOMA, the recent court rulings, and the massive shift in public opinion give plenty of cover for these decisions. And as Dave Weigel points out, it’s not like this is a bedrock principle that’s at stake here.

Virginia’s constitutional definition of marriage is not some sacred script handed down from Thomas Jefferson to Patrick Henry to (still sounds weird) Terry McAuliffe. It’s actually younger than the iPod. In 2006, 57 percent of Virginia voters approved the Marshall-Newman Amendment, adding the definition to their Constitution. Since then, lots of Virginians have, like Herring, changed their minds. As of six months ago, only 43 percent of Virginians opposed gay marriage — a 14-point swing.

So Virginia’s one of those states that’s probably ready to wave in gay marriages, but can’t, because an older and more conservative electorate locked and bolted the door. Back in 2006, this was seen as a boon for Republicans. And now it’s left Republicans defending a pretty unpopular position.

Texas passed its amendment in 2005, still years after the iPod hit the scene, though our history of banning gay marriage does go back to the pre-iPod era. The point about locking it in via the Constitution, which I’ve made before, is why this will need to be resolved by the courts. Daily Kos has more.

A brief history of gay marriage legislation in Texas

From TM Daily Post.

RedEquality

Gay marriage supporters have made massive strides in a very short amount of time. Less than ten years ago, gay couples couldn’t get married anywhere in the United States. While the progress they did achieve shortly thereafter involved victories, they were handed down by judges—rather than their fellow voters—and the term “marriage” still didn’t apply—they could only have separate-but-equal “civil unions.”

Now, though, nearly a third of the states (containing nearly forty percent of the population) have legalized gay marriage, and in most cases, that’s been through the actions of elected legislatures or voters at the ballot box.

In Texas, meanwhile, if the status of gay marriage is going to change—at least in the short term—it’ll likely have to be in the courts. And there are four lawsuits pending that are challenging the various restrictions in the state that outlaw gay marriage. As we take a look at them, let’s also take a moment to trace the history of gay marriage bans in Texas.

Most of what’s in there will be familiar to you, though I at least didn’t realize that the first shot in this branch of the culture war was fired in 1997. The most recent developments in the state are the lawsuits, one about divorce and the other about marriage, that are likely to have a profound effect on the status quo going forward. Assuming that the federal lawsuit doesn’t make it all moot in the wake of the Utah decision, of course. In an ideal world, the existing laws would be repealed by the Legislature, but we may never get to a point where there’s a sufficient majority to repeal that awful constitutional amendment; a one-third minority in either chamber would be enough to block any such attempt. So I’m happy for the courts to do what needs to be done, but as I’ve been saying I just wonder how big and insane the freakout will be when it happens. We may get a good idea of that soon.

Harris County GOP sues over same sex spouse benefits for city employees

When Mayor Parker announced that legally married same sex spouses would be eligible to be added to city employees’ health insurance plans, I was certain that there would be legal action taken against that decision. The Harris County GOP has now supplied the legal action.

RedEquality

The city of Houston’s recent policy change extending health and life insurance benefits to same-sex married couples is on hold after two Harris County Republicans, led by the county’s GOP chairman, sued the city and Mayor Annise Parker on Tuesday.

The lawsuit, filed in state district court by Houstonians Jack Pidgeon and Larry Hicks, claims the policy violates Houston’s city charter, the state’s Defense of Marriage Act and the Texas Constitution.

“This is one of the most egregious acts by an elected official I’ve ever seen,” said Jared Woodfill, chairman of the Harris County Republican Party. Woodfill is the lead lawyer on the lawsuit. “They just decided to, unilaterally, as a lame duck, thumb their nose at the will of the people and just spit on the U.S. Constitution.”

Woodfill said state District Judge Lisa Millard signed a temporary restraining order late Tuesday, halting the new policy until the matter goes before a judge on Jan. 6.

City Attorney David Feldman defended the new policy when it was announced in November and said Tuesday nothing has changed.

“We’re comfortable with our legal position,” he said. Feldman cited the U.S. Supreme Court’s ruling earlier this year overturning the federal Defense of Marriage Act, federal agencies’ subsequent decisions to recognize legal same-sex marriages and other relevant case law to support the legality of the policy.

Feldman said he expects the lawsuit to be thrown out because Pidgeon and Hicks do not appear to have legal standing since they are not directly affected by the policy.

Josh Blackman, a professor of constitutional law at the South Texas College of Law, said the men’s standing would have to be decided by a judge.

“You can only sue if you’re affected by a law, and generally paying taxes to the city does not give you standing,” he said. “But under Texas law, there are some cases where you can. This may be one of those cases.”

Woodfill said the Harris County Republican Party passed a resolution supporting the lawsuit before it was filed on Tuesday. He said he expects Pidgeon and Hicks will be able to challenge the policy.

“There’s an exception carved out for an illegal act, which is what the mayor has done here,” Woodfill said.

Texpatriate was first to blog this and to note that the judge had issued a temporary restraining order. Via his link to the Quorum Report you can see copies of the lawsuit and TRO. I do disagree with his connection of the judge’s granting the TRO with her lack of a Democratic opponent in November. I’m not naive enough to believe that judges are untainted by politics, but neither am I cynical enough to believe that taking politics into account is the expected default.

Beyond that, I see this as being basically the same as the state’s struthian legal strategy in the gay divorce case, which is to claim that legally married same-sex couples must check their rights at the state line. I suppose that could work at the state level, but given the SCOTUS ruling on DOMA and perhaps the federal lawsuit over Texas’ constitutional ban on same sex marriage, it’s hard to see that being viable for long. Politically, I do agree with Texpatriate that this is mostly about firing up the rubes but that it will be a net loser for the local GOP, in the short term future if not immediately. It is perhaps telling that AG and gubernatorial candidate Greg Abbott has so far stayed out of this, just as he backed off his threat to sue the city of San Antonio over its recently passed non-discrimination ordinance. Jared Woodfill can stamp his feet and hold his breath all he wants, but change is coming whether he likes it or not and sooner than he thinks. The Houston GLBT Political Caucus has a statement condemning the lawsuit, HCC Trustee Carroll Robinson and TSU poli sci prof Michael Adams predict a Houston victory in the litigation, and PDiddie, BOR, Hair Balls, John Coby, Texas Leftist, and the Observer have more.