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Paxton still fighting same sex marriage

Some things never change.

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Despite his recent pledge to comply with the U.S. Supreme Court’s same-sex marriage ruling, Attorney General Ken Paxton is already seeking to prevent the decision from being applied in an Austin estate case.

Paxton’s office filed a motion August 25 in Travis County’s probate court aimed at blocking an Austin woman from inheriting a portion of her deceased partner’s estate, arguing that because same-sex marriage was illegal in Texas throughout the women’s relationship, Sonemaly Phrasavath has no legal right to her partner’s funds.

The motion was filed a day after the AG’s office, in an advisory, assured a federal judge in San Antonio that the state was in full compliance with the high court’s June 26 decision in Obergefell v. Hodges.

Based on the advisory, U.S. District Judge Orlando L. Garcia canceled a contempt hearing for Paxton over Texas’ failure to issue an amended death certificate to a gay widower for six weeks after the ruling.

Brian Thompson, Phrasavath’s attorney, told the Observer that the AG’s office’s continued filings in the case show that it is “not recognizing the full force of the Obergefell opinion.”

See here, here, and here for the background, and here for Phrasavath’s motion for summary judgment. She was a plaintiff in one of the other legal challenges to Texas’ anti-same sex marriage amendment; her case was still pending at the time of the Obergfell decision, and as in that case this has to do with a surviving spouse. It surely wasn’t their fault that they couldn’t get married at the time they did. There will be a hearing on Monday, and I hope this is swiftly decided in her favor. I also hope Judge Garcia is paying attention.

Paxton’s contempt saga officially ends

I’m sure he’s so relieved.

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A federal judge has canceled next week’s contempt-of-court hearing for Attorney General Ken Paxton, saying it is not needed because Texas government agencies have begun acknowledging same-sex marriages.

U.S. District Judge Orlando Garcia had ordered Paxton and a state health official to appear in his San Antonio courtroom last month to explain why the state was not listing same-sex marriages on death certificates. Garcia postponed that hearing until Sept. 10 after Paxton said state policies were being changed to allow same-sex marriages to be listed on all state documents, including birth and adoption records.

Paxton last week asked Garcia to cancel the postponed hearing, saying Texas was complying with his order to treat same-sex marriages no differently than opposite-sex unions.

Garcia agreed, saying in an order Tuesday that state officials were properly recognizing same-sex marriages as required by the U.S. Supreme Court’s June opinion that struck down all state bans on gay marriage.

Garcia, however, noted that his office had received letters complaining that gay couples were still being denied marriage licenses in a few counties he did not identify.

See here, here, and here for the background. It would be nice to have more details about those letters Judge Garcia received, but at this point it does seem like the system is finally working as it’s supposed to. If all else fails, Judge Garcia can always reschedule that hearing. He may now be in compliance, but it’s not clear to me that Paxton has learned anything from the experience.

Though that decision marks something of a win for Paxton, the attorney general’s first assistant bristled at the notion that it was even necessary.

“For better or worse, Tx was never ‘not complying,’” First Assistant Attorney General Chip Roy wrote on Twitter. “There was never basis for contempt hearing for AG or otherwise.”

All the legal wrangling came after Conroe resident John Allen Stone-Hoskins sued the state to amend his husband’s death certificate and add his name as a spouse. Pressure also mounted for the Department of State Health Services to address other such forms.

The death certificate of Stone-Hoskins’ husband, James, has since been amended. And Neel Lane, Stone-Hoskins’ attorney, said in August that fixing those documents “should be the final chapter” in the state recognizing the same-sex marriage ruling.

Garcia’s order did note complaints that some county clerks continue to deny marriage licenses to same-sex couples. While pointing out those issues weren’t before the court, Garcia highlighted the attorney general’s pledge to not represent those clerks in litigation.

“The court expects that Ken Paxton … will utilize [his] unique position to ensure proper implementation of the law across the State of Texas,” Garcia wrote.

He’d better. And please spare us the whining, Chip. Go talk to people like John Stone-Hoskins about how they were being treated and see if you can stand by your statement. Someone needed to get Paxton’s undivided attention, and Judge Garcia was the one to do it. I’m very glad he did.

Paxton asks to be excused from contempt hearing

He promises he’s been a good boy, so can he please come out of time out now?

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Attorney General Ken Paxton’s office says he shouldn’t face a contempt hearing for failing to comply with the U.S. Supreme Court’s same-sex marriage ruling, and no longer needs judicial supervision to ensure he’s doing so.

In an advisory submitted on Monday’s deadline, the AG’s office assured U.S. District Judge Orlando Garcia that state officials have implemented new policies for issuing birth and death certificates to same-sex couples, and are processing all pending applications.

[…]

In Monday’s filing, assistant solicitor general Michael Murphy argued the hearing is no longer necessary, and objected to “the unprecedented threat of contempt” in the first place. Quoting Supreme Court Justice Anthony Kennedy, Murphy suggested officials simply needed time to adapt after the high court “unsettled … a ‘millennia’-old definition of marriage.”

“Because the state is in full compliance with Obergefell and this court’s injunction and has granted the relief the intervenor sought, the State Defendants believe there is no need for the Court’s scheduled Sept. 10, 2015 contempt hearing or any continued Court supervision of the Department,” Murphy wrote.

Representatives from the AG’s office couldn’t immediately be reached for further comment.

Ken Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, said Tuesday he feels the threat of contempt was “a proportionate response to the unprecedented level of arrogance, impudence and non-compliance” with the marriage ruling on the part of state officials.

Upton added that while officials were adapting, the gay widower who sought an accurate death certificate, John Stone-Hoskins, was dying himself, and hundreds of same-sex couples were forced to go without accurate birth certificates.

“What they needed was the threat of going to jail and a good civics lesson in how our system works,” Upton said.

See here and here for the background. I don’t think there’s anything I can add to what Ken Upton said. I agree with him 100% – if Paxton hadn’t dragged his feet and just generally done everything he could to deny the reality of Obergfell, then maybe you could argue that a contempt hearing was a bit much. In this case, it was completely fitting and deserved, and it had the desired effect. Next time do your job without having to be coerced and you won’t have these problems.

Paxton will not be able to avoid a different court hearing, however.

Ken Paxton will have to appear in court this week, after the judge handling his securities fraud case denied the attorney general’s request to skip the hearing and send his lawyer instead.

Presiding Judge George Gallagher of Tarrant County on Monday denied Paxton’s request to forgo his Thursday arraignment. According to court filings, Paxton will plead not guilty that day to two first-degree felony charges and one third-degree felony charge of violating state securities laws.

“This is the judge’s decision. Attorney General Paxton has no problem with it and neither do I,” Paxton’s attorney Joe Kendall told the Chronicle on Monday.

OK then. Let’s get this show on the road.

State issues new guidelines for birth and death certificates

That was quick.

The state has issued new guidelines for filing and changing vital records to recognize same-sex marriage status, as ordered by a federal judge in San Antonio

In a court advisory filed late Wednesday, the Texas Attorney General’s Office and the Texas Department of State Health Services said they believe the new guidelines comply with the June 26 Supreme Court ruling that found gay marriage legal in all 50 states and a July 7 order by U.S. District Judge Orlando Garcia that prohibits state agencies from enforcing Texas laws that bar same-sex marriage.

Officials also agreed to issue new birth certificates for the two sons of Leigh and Robin Jorgesen of Austin, who helped convince Garcia, of San Antonio, to order the state to act on vital records involving same-sex married couples.

[…]

The state’s advisory also tells the judge that “the processing of software modifications by the third-party vendor that hosts the platform for vital records will take additional time, which will impact the issuance of birth certificates.”

“Until that change is made, those requesting a birth certificate listing parents of the same sex may choose either to (1) obtain the standard birth certificate listing ‘mother’ and ‘father’ as well as an amendment to the birth certificate once the software modification is complete; or (2) obtain an original birth certificate allowing for the parents to be identified as ‘mother,’’father’ or ‘parent’ once the software modification is complete.”

See here for the background. Nothing like a little contempt of court order to focus the mind and make clear what one’s priorities are. It’s almost as if the state had the ability to have gotten this done in a timely fashion without needing to be threatened. I’m sure that couldn’t possibly be the case, though. Trail Blazers has more.

Paxton gets a deadline

Better stick to it.

In an order late Tuesday, U.S. District Judge Orlando Garcia also instructed Texas Attorney General Ken Paxton’s office and the Texas Department of State Health Services to approve all pending applications for death and birth certificates involving married gay couples by that date.

The judge is holding both agencies to their word during a phone conference Monday that “the state and its agencies will be fully in compliance with (Garcia’s) final judgment that was issued on July 7th.”

[…]

The judge this week rescheduled a contempt hearing until Sept. 10, and it will take place if the state does not comply by Aug. 24.

See here, here, and here for the background. The Press, which profiles John Stone-haskins, the lead plaintiff in this action, fills in some details.

In a court hearing on Monday, Garcia noted that he kept getting the calls and emails and letters, all from people requesting the state recognize their marriages, too, according to Neel Lane, Stone-Hoskins’s attorney. (Lane is the same attorney who represented same-sex couples leading the legal fight against Texas’s gay marriage ban, which Garcia ruled unconstitutional; the Supreme Court took up the issue before the Fifth Circuit Court of Appeals ruled on Lane’s case.)

So now, instead of every person fighting as Stone-Hoskins has, the state must draft a policy by August 24 that acknowledges same-sex couples’ rights to amend their certificates, a policy that will have to be approved by Lane. If the policy that the attorney general’s office drafts is satisfactory, Paxton’s contempt hearing, which was rescheduled for September 10, may be canceled.

“Once [Stone-Hoskins] got the death certificate and saw there were others who would be in the same position,” Lane says, “he didn’t want to leave them behind. He didn’t want to make the next person file suit. He committed himself to making sure that the state did something that would be more durable than just issue one death certificate and walk away.”

Good to know that Paxton’s surrender means this really is the end of the line, at least for this part of the fight. There will be a lot more things to fight about, at least until the losers are finally and truly marginalized. We’ll know for sure about this issue on August 24. The Trib has more.

Paxton avoids contempt hearing

He accomplished this by folding like a lawn chair on the issue of same-sex death and birth certificates.

Wednesday’s contempt of court hearing for Attorney General Ken Paxton and a state health official was canceled Monday after state officials agreed to allow death certificates to acknowledge same-sex marriages, a lawyer involved in the case said.

The state also agreed to issue new guidelines allowing same-sex couples to be listed as parents on a child’s birth certificate, said Neel Lane, the lawyer for a Conroe man who sued Texas to be listed as the husband on his male spouse’s death certificate.

The Trib fills in some details.

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The move came hours after Paxton asked U.S. District Judge Orlando Garcia to quash an order requiring him and a top state health official to attend a contempt of court hearing on Wednesday. That hearing stemmed from a ruling last week by U.S. District Judge Orlando Garcia ordering state officials to recognize the same-sex marriage of a Conroe resident by naming him as the surviving spouse on his late husband’s death certificate.

Garcia also ruled that Paxton and Kirk Cole, interim commissioner of the Texas Department of State Health Services, should appear in court in San Antonio to determine whether they should be held in contempt for refusing to amend the death certificate.

In his ruling, Garcia said the state had violated a July decision that prohibited state officials from enforcing Texas’ now-defunct ban on same-sex marriages. That order was issued shortly after the U.S. Supreme Court ruled that states must recognize same-sex marriages.

A spokeswoman for the AG’s office confirmed the hearing had been canceled “while DSHS finalizes guidelines for the issuance of death certificates.”

A hearing is now scheduled for Sept. 10 to allow the state to finalize its revised policies.

And more from the Express-News:

During a telephone conference, lawyers for the state agreed to have a policy on death certificates ready by Thursday and one in place for birth certificates within two to three days, said Neel Lane, one of the San Antonio lawyers handling the litigation against the state.

U.S. District Judge Orlando Garcia told Lane to confer with the state to review the policies and procedures to ensure that they do not discriminate against married same-sex couples. If Lane feels they are not adequate, he should inform Garcia, the judge ordered.

“DSHS is finalizing a policy related to the issuance of certain vital records within the next two days,” a spokesman for the Texas Department of State Health Services said via e-mail. “We will work as quickly as possible to implement that policy. It will require communication with local registrars and facilities, changes to our processes and programming updates to the electronic vital records system.”

Lane’s client, John Allen Stone-Hoskins, who sued to force the state to list him as the surviving spouse on his husband’s death certificate, praised Garcia’s ruling and said Lane will help so the state “can no longer do this to any same-sex couple in birth or death.”

[…]

Behind the scenes, several sources told the San Antonio Express-News that federal marshals had been preparing to house Paxton and the head of DSHS — if found in contempt — in a jail other than the one downtown run by The Geo Group of Florida.

Excellent. Shame it took the threat of being held in contempt of court to make it happen, but at least it did happen. Kudos to Judge Garcia for making it expressly clear that he intended to tolerate no BS. Getting birth certificates included is a big deal as well. Paxton has a big mouth when it comes to these so-called “social issues”, but he has an equally big sense of self-preservation. He wasn’t going to the slammer. Congrats to the plaintiffs and attorneys that forced Paxton to cry “Uncle”.

UPDATE: Brian Chasnoff has more.

State Health Services department finally amends that death certificate

Good.

Complying with a federal court order, Texas has issued an amended death certificate acknowledging a Conroe man as the husband of a same-sex spouse who had died in January. The men had been married in New Mexico in 2014, when Texas still banned gay marriage.

Shortly after the change was made Thursday night, state lawyers asked U.S. District Judge Orlando Garcia to cancel next week’s hearing on whether Attorney General Ken Paxton should be held in contempt of court for his agency’s role in prolonging John Allen Stone-Hoskins’ fight to be listed as the husband on his spouse’s death certificate.

Garcia ordered the document to be changed Wednesday, saying the state’s refusal to amend the death certificate violated his permanent injunction, issued in July, that barred state officials from enforcing Texas laws on gay marriage, including a ban on recognizing same-sex marriages performed in other states.

Garcia issued the injunction shortly after the U.S. Supreme Court overturned all state bans on gay marriage.

In the same order Wednesday, Garcia directed Paxton and Kirk Cole, interim commissioner of the Department of State Health Services, to appear in his San Antonio courtroom at 10 a.m. Wednesday to determine if they should be held in contempt of court for violating his injunction.

[…]

In a brief filed in Garcia’s court late Thursday, lawyers for the attorney general’s office urged the judge to cancel next week’s hearing, arguing that it would be inappropriate to hold Paxton and Cole in contempt of court.

A contempt finding would require clear proof that Paxton and Cole violated “a definite and specific order of the court,” the brief said. Garcia’s injunction, however, related to the right of same-sex couples to marry, not how a Texas agency should follow state regulations on issuing death certificates, the brief said.

“Whether a newly-recognized federal constitutional right is retroactive is a complex, fact-specific inquiry that is resolved in subsequent legal proceedings,” the brief said.

Requiring Paxton to appear at a contempt hearing is “particularly striking,” the brief said, because he was merely doing his job by providing legal advice to Cole’s agency.

“The attorney general has not refused to amend any death certificate,” the brief said. “There is absolutely no authority for the proposition that a constitutional officer of a state may be held in contempt for good-faith representation of a client in discharging his constitutional duty.”

Garcia’s decision to cancel Wednesday’s hearing could be influenced by an Austin man’s request to attend the hearing as an interested party. William Wallace’s attempts to amend his late husband’s death certificate for the past 1½ months also was rejected by state officials, his lawyer said.

See here for the background. Personally, I think Judge Garcia should go ahead and have the hearing. Paxton may have just been advising DSHS, but he was clearly giving them bad advice that gave them a way to deny John Stone-Hopkins’ rights, at a time when he didn’t have much time left to fight for them. He did the same thing with County Clerks after the Obergfell ruling, and while it wasn’t an outright call for resistance and in the end had little practical effect, the point is that he clearly has shown a lot of disrespect for the court’s ruling. I think he should have to explain himself in front of the judge, if only to ensure he doesn’t ever do this again.

And here’s why that lesson needs to be applied.

Ken Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, wrote in a letter to U.S. District Judge Orlando Garcia today that the Department of State Health Services continues to deny accurate birth certificates to the children of same-sex couples.

Upton and his clients, Susan Leigh Jorgensen and Robin Bass Jorgensen, plan to attend a hearing next week on a contempt motion against Paxton and Kirk Cole, the interim health department commissioner, over their refusal to issue an amended death certificate to John Stone-Hoskins listing him as the husband of James Stone-Hoskins. James Stone-Hoskins died in January after the couple married in New Mexico last year.

On Wednesday, Garcia ordered Cole to issue an amended death certificate to Stone-Hoskins, who has terminal cancer, and set a hearing for next Wednesday in San Antonio. Stone-Hoskins received the amended death certificate Thursday.

“While it appears the defendants have issued the specific corrected death certificate you ordered, they are by no means complying with the permanent injunction you entered against them in this matter,” Upton wrote in his letter to Garcia, adding that the state health agency has “steadfastly refused” to do so.

Upton said his clients, whose second child was born Aug. 4, were most recently denied an accurate birth certificate Aug. 5. Upton believes the high court’s June 26 ruling in Obergefell v. Hodges, along with a subsequent order from Garcia enjoining state officials from enforcing Texas’ same-sex marriage ban, require that the state allow gay couples to have both names on birth certificates.

Also writing a letter to Garcia on Friday was Elizabeth Brenner, an attorney for William Kenneth Wallace, who’s been denied a death certificate listing him as his late husband’s spouse. According to Brenner’s letter, Wallace has gone to the health department’s vital statistics office numerous times in person over the last month and a half, but each time he was turned away — most recently on July 27.

Brenner’s letter requests permission to appear at the contempt hearing as an interested party.

As you may recall, there was some motion in the Lege to fix birth certificates for children of same-sex couples, but it didn’t make it through. I’d rather we had a legislative fix for this than a judicial one, but what matters is getting it fixed. We’ll see what Judge Garcia thinks of all this. The Dallas Voice has more.

There’s more to complying with SCOTUS than issuing marriage licenses

Looks like Ken Paxton may get to learn that the hard way.

A federal judge ruled Wednesday that Texas must recognize the same-sex marriage of a Conroe resident by naming him as the surviving spouse on his late husband’s death certificate.

And U.S. District Judge Orlando Garcia also ordered Texas Attorney General Ken Paxton and Kirk Cole, interim commissioner of the Texas Department of State Health Services, to appear in court Aug. 12 to determine whether they should be held in contempt for refusing to change the death certificate. This is the latest legal challenge for Paxton, who was recently indicted on three felony securities fraud charges.

The judge’s emergency order comes after a lawyer for John Stone-Hoskins, the surviving spouse, sued the state in the wake of the U.S. Supreme Court’s ruling legalizing same-sex marriage, arguing Texas should revise the death certificate. The lawsuit also asked the court to name Texas officials including Paxton and Cole in contempt.

John Stone-Hoskins and James Stone-Hoskins married in New Mexico last year on the 10th anniversary of their first date. James Stone-Hoskins, 32, died in January. But John Stone-Hoskins was not listed on his husband’s death certificate, because at the time, Texas’ ban on same-sex marriages was still in place. Instead, James Stone-Hoskins was listed as single.

The order by Garcia of the District Court for the Western District of Texas compels the state health department to amend the death certificate. This case is particularly urgent, said John Stone-Hoskins’ lawyer, Neel Lane, a partner at Akin Gump Strauss Hauer & Feld LLP, because his 37-year-old client has been diagnosed with terminal cancer.

This Observer story from Tuesday gives some background. This story from Wednesday fills in some details.

“This is an effort to get political gain by persecuting gays and lesbians in the state of Texas,” Lane told the Observer shortly after filing the motion. “There’s just no other way to read what they’re doing.”

Stone-Hoskins said he was diagnosed with cancer six weeks after his husband’s death, and doctors estimate he has 45 to 60 days to live. He began requesting an updated death certificate immediately after the high court’s ruling, submitting more than 20 pages of documentation.

State officials initially told him they were still reviewing the request, but this week they said they wouldn’t issue an updated death certificate unless a court ordered them to do so, Lane and Stone-Hoskins said.

“After the Supreme Court decision came down, I should have inherited his estate,” Stone-Hoskins said. “Instead, not only is James’ estate — because he left no will before he died — at issue, but should I pass, I can’t even plan my own estate at this time.”

Paxton’s office didn’t immediately respond to a request for comment.

Lane said the state will be on the hook for Stone-Hoskins attorneys’ fees, but he’s unsure whether officials will also be liable for damages.

“The court can consider at its discretion any factors in awarding an award of contempt, but really what we want to do, at least from my perspective, is to pave the way for others so they don’t have to go to court,” Lane said.

Yeah, that whole “you don’t have to obey SCOTUS if your conscience says so but you could pay for it if so” opinion sure is hitting home about now, I’d say. We’ll see if the DSHS complies, and what happens with Paxton and Cole next week. I wonder if it would be wise for Paxton to pack a toothbrush with him when he goes to court. At least he’s already got a mug shot they can use if he needs to be booked. The Statesman has more.