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Same sex employee benefits lawsuit tossed again

This is great, but as always that’s not the end of it.

The lawsuit dates back to 2013, when pastor Jack Pidgeon and accountant Larry Hicks sued the city to end the policy. In 2015, after the U.S. Supreme Court handed down the landmark Obergefell ruling that opened up marriage rights to same-sex couples in all states, Pidgeon and Hicks continued to pursue the lawsuit, arguing that the decision did not extend to the right to city spousal benefits.

In June 2017, the Texas Supreme Court agreed, ruling unanimously that while same-sex marriage had been made legal, there is still room for state courts to explore the “reach and ramifications” of the landmark Obergefell ruling. The all-Republican high court sent the case back to a Houston trial court for further consideration.

Nearly two years later, Judge Sonya Heath on Monday threw out the case, ruling for Houston in what the city has touted as a major win.

“This is a victory for equality, the law of our nation and human rights,” Houston Mayor Sylvester Turner said in a statement Thursday evening. “I thank our Legal Department for its diligent work defending common sense and fairness, and I’m glad we get to continue the policy established by the city 6 years ago.”

Still, that win won’t go unchallenged. Jared Woodfill, the lawyer who represents Pidgeon and Hicks, said Thursday night that his clients will appeal the ruling — and that he expects the case to land again before the Texas Supreme Court and that it could eventually be decided by the U.S. Supreme Court.

See here, here, and here for some background. There’s a bunch of blathering by Jared Woodfill in the story about how unfair it was that a Democratic judge, who ousted the Republican judge that originally gave him an injunction that was quickly overridden, got to rule on his case, while also gloating that Republican judges up the line and on SCOTUS will surely be in the bag for him. He failed to mention that the only reason this case is still being litigated is because the State Supreme Court bowed to political pressure after initially giving him the brushoff. I don’t know what will happen in this case once the appeals process starts up again, but I do know two things. One is that Woodfill and his crank case plaintiffs represent a shrinking fringe, and two is that we need to win more elections so we can pass some more robust laws protecting the fundamental rights of all Americans. (Honestly, just ensuring that no more bad legislation gets passed would be a big step forward.) Mayor Turner’s press release has more.

The Lawrence decision, 15 years later

Time flies, but society moves slowly.

Theirs was an unlikely case.

John Lawrence and Tyron Garner weren’t in love, they weren’t a committed couple and it’s not clear that they were even having sex one September 1998 evening in Lawrence’s Houston apartment when a police officer burst in and arrested them for violating a Texas law that prohibited “deviate sexual intercourse with another individual of the same sex.” That law was rarely enforced, especially in homes — how often, after all, do police appear in private bedrooms? In the Lawrence case, officers entered in response to a false report of a weapons disturbance.

The factual details of that night are often called into question; Lawrence told one interviewer that he and Garner were seated some 15 feet apart when police arrived. But the two pleaded “no contest” to the sodomy charge, allowing them — and their team of advocate lawyers — to challenge the law itself.

Ultimately, they won, and it was their unlikely case that sparked a sweeping ruling from the nation’s highest court, one that overturned not just Texas’ ban on sodomy but 13 similar laws across the country.

That Supreme Court decision was June 26, 2003 — 15 years ago Tuesday. One law professor at the time said it “removed the reflexive assumption of gay people’s inferiority,” laying the legal groundwork for same-sex marriage. Without the immediate, presumptive criminal charge against LGBT people, new doors were opened — new jobs, new opportunities, new freedom in their skin.

The ruling “gave lesbian, bisexual and gay people back their dignity,” said Camilla Taylor, a Lambda Legal attorney who started with the legal advocacy group in 2003, just in time to watch her colleague, Paul Smith — a gay man himself — argue Lawrence before the Supreme Court.

“Everyone knew this case had the power to change the world. The court gave us everything we asked for and more — and went big, just as we demanded,” Taylor said.

Ten years later, June 26 became an even more important milestone for gay rights when the high court struck down the Defense of Marriage Act. And then, in 2015, the date again gained new significance with the ruling known as Obergefell that legalized same-sex marriage nationwide.

But this year, as the date rolls around, LGBT Texans are still reckoning with the legal and political landscape in a state where they have few protections against discrimination and their rights as couples are again being questioned in court.

Fifteen years later, some wonder, how much progress have same-sex couples in Texas really made?

You want to know how long I’ve been doing this blog thing? Long enough to have blogged about the Lawrence decision. As this story notes, the next big test of where we stand as a society with regard to the rights and dignity of same-sex couples comes in January, right here in Houston, when the anti-same sex employee benefits lawsuit gets heard in a Harris County district court. It’s a bullshit case from top to bottom, but as we’ve seen lately from both the state and federal Supreme Courts, being bullshit is not a hindrance when there’s an agenda at play. Just remember you’ll have at least one and probably two opportunities to have your own influence on our Supreme Court, with the first one being this November. Please do make the most of it.

Houston city employees file their own lawsuit (again) on spousal benefits

A shame it’s had to come to this, but this is where we are.

On Thursday, three married couples from Houston filed a lawsuit in federal court aimed at forcing the city to preserve health coverage and other benefits for same-sex spouses of city employees. That’s because, despite the Supreme Court’s 2015 decision in Obergefell v. Hodges, which affirmed same-sex marriage nationwide, the Texas Supreme Court this summer opted for something more like marriage equality-lite, ruling that same-sex spouses of government employees in Texas aren’t guaranteed the actual benefits of marriage such as dental, health or life insurance.

Kenneth Upton is a Dallas lawyer and senior counsel with the LGBT rights group Lambda Legal, which is representing the married couples that filed Thursday’s lawsuit. He says it’s become clear Texas state courts have no intention of upholding marriage equality.

“I don’t know a judge in the Southern District of Texas that’s going to thumb their nose at both the Fifth Circuit and the Supreme Court,” he told the Observer on Thursday. “We need to be in federal court, because that’s who’s going to follow the law.”

[…]

Upton says the Texas courts’ handling of marriage equality post-Obergefell has been “an almost Alice in Wonderland kind of scenario,” which is why Lambda Legal wants to move the issue to the federal courts. “What makes it so offensive is there’s no question what the law is.”

One of Upton’s clients is a Houston police officer. “She puts her life on the line for the city and the people who live there every day,” he said. Were she to die in the line of duty, Upton said, “her surviving spouse would be treated differently than that of a straight officer, and that’s just offensive.”

See here and here for the recent background. The Associated Press adds some details:

Alan Bernstein, a spokesman for Houston Mayor Sylvester Turner, said in a statement the city, as does the state of Texas, offers employees coverage for all legally married spouses without regard to sex.

“As Mayor Sylvester Turner said in June, ‘The city of Houston will continue to be an inclusive city that respects the legal marriages of all employees. Marriage equality is the law of the land, and everyone is entitled to the full benefits of marriage, regardless of the gender of their spouse,'” Bernstein said.

But the mayor might not have a choice if ordered by a judge to stop paying them, Upton said.

“The city is caught in the middle,” he said.

Upton said he expects the Harris County civil court judge will grant the motion for an injunction blocking the payment of benefits because the judge has granted similar requests twice before.

Also named in Thursday’s lawsuit are the two Houston residents who initially filed the lawsuit in 2013 asking that the city stop paying such benefits and who were backed by a coalition of religious and socially conservative groups.

See here for more on the original lawsuit, here for the Lambda Legal overview of the case, and here for a copy of the complaint. This bit, from Section VI on the Current Litigation, explains where we are and why this lawsuit needed to be filed:

52. The Texas Supreme Court has not yet issued its mandate returning jurisdiction to the state district court. Nonetheless, the Taxpayers prematurely filed an Amended Petition and Brief seeking a new preliminary injunction against the Mayor and the City to prohibit them from continuing benefits to same-sex spouses of employees, including the Plaintiffs. The filing also shows the Taxpayers will request an order requiring the City to claw back benefits previously paid for spousal coverage to same-sex spouses of City employees, including Plaintiffs.

53. Barring the filing of a petition for rehearing by the City or a stay granted pending a petition for certiorari to the United States Supreme Court, the Texas Court’s mandate will vest jurisdiction back in the trial court as early as August 17, 2017, at which time there is a substantial likelihood the state district court will issue another temporary injunction—the third one issued by that court—ordering the City to withdraw, and even claw back (i.e., demand immediate reimbursement from the employees), spousal benefits from the City Employees and their Spouses without further notice.

Both of the previous injunctions were overturned by federal court order. That’s the goal here, to prevent or knock down another such injunction. Please note that the state court lawsuit was filed in the 310th Family District Court, presided over by Judge Lisa Millard, the granter of those injunctions. Judge Millard is up for election next year, and Democrat Sonya Heath has filed to run against her; Heath does not currently have a primary opponent. Elections have consequences, and that will be your opportunity to create some. The Dallas Voice has more.

Jared Woodfill never stops never stopping

Here we go again.

RedEquality

Fifteen months after the U.S. Supreme Court made marriage equality the law of the land, anti-LGBT groups in Texas are still fighting the decision.

Jonathan Saenz, president of the right-wing lobby group Texas Values, and Houston anti-LGBT activist Jared Woodfill announced Tuesday that they’re again asking the Texas Supreme Court to hear their lawsuit seeking to block the same-sex spouses of government workers from receiving health care and other benefits.

[…]

In their motion for a rehearing, Saenz and Woodfill argue that Obergefell should be interpreted narrowly because it violates states’ rights under the 10th Amendment, has no basis in the Constitution and threatens religious freedom.

“It is clear that the current Supreme Court will continue to use its power to advance the ideology of the sexual revolution until there is a change of membership,” Saenz and Woodfill wrote. “It is well known that the homosexual rights movement is not content with the judicial imposition of same-sex marriage in all 50 States; it is also seeking to coerce people of faith who oppose homosexual behavior into participating in same-sex marriage ceremonies.”

Ken Upton, senior counsel for the LGBT civil rights group Lambda Legal, told theObserver that Saenz and Woodfill are “more to be pitied than censored.”

“Obergefell requires the government to treat all married couples the same,” Upton said. “Obergefell doesn’t say that a government employer has to offer any married couple spousal benefits, but if it chooses to do so it must offer the same benefits to all married couples not just the different-sex ones. The government does not get to privilege straight couples over gay couples.”

If the Texas Supreme Court were to take the case and rule in favor of Saenz and Woodfill, the city of Houston could appeal the decision directly to the U.S. Supreme Court, Upton said.

“But let’s be realistic,” he added. “The Texas Supreme Court is not going to grant rehearing. My take is that the Texas Supreme Court is done with marriage. I don’t think there’s much appetite to re-engage that discussion.”

See here for the background. Some things call for logic and reason, some for scorn and derision, and for some all one can do is stare in slack-jawed amazement. That’s all I’ve got on this one.

State Supreme Court declines to hear lawsuit over city’s same-sex partner benefits

I had totally forgotten this was still a thing that was happening.

RedEquality

The Texas Supreme Court has declined to hear a case challenging Houston’s extension of health and life-insurance benefits to same-sex spouses of married employees, calling an apparent end to three years of legal battles over the policy change.

Houston began offering employment benefits to spouses of all married couples in November 2013, following a U.S. Supreme Court ruling that overturned the federal Defense of Marriage Act.

Then-Mayor Annise Parker’s move prompted three lawsuits, two from conservatives who argued the policy violated Houston’s city charter, the Defense of Marriage Act and the Texas Constitution.

State District Judge Lisa Millard twice signed a temporary restraining order blocking the city from offering the benefits, most recently in November 2014.

Texas’ 14th Court of Appeals lifted that injunction last summer after the U.S. Supreme Court legalized same-sex marriage nationwide in the case Obergefell v. Hodges.

Conservative activists Jared Woodfill and Jonathan Saenz later appealed that decision, arguing that “there is no ‘fundamental right’ to spousal employee benefits.”

See here, here, and here for some background. The federal lawsuit was officially dismissed on July 6, 2015, but there remained a state-court lawsuit. You can see its full history at the Supreme Court level here. According to the Chron story, Woodfill intends to ask for a rehearing. I have no idea what he thinks he can accomplish at this point, but no one ever said Jared Woodfill was a rational being, and as Mark Joseph Stern at Slate observed, there was at least one Supreme Court justice (John Devine, of course) who really pines for the day when all those icky gay people had to hide themselves in closets. People like that are thankfully part of a shrinking minority these days, but don’t kid yourself into thinking they’ll ever truly go away. The Press has more.

Woodfill is still pursuing his anti-same-sex benefits lawsuit

From the inbox and the febrile mind of Jared Woodfill:

RedEquality

Last year Houston Judge Lisa Millard granted a temporary injunction and ordered Houston Mayor Annise Parker and the City of Houston to immediately stop recognizing same-sex ‘marriages’ and stop providing benefits to the same-sex couples married in other states. Judge Millard stated, “This court does not legislate from the bench” and ordered the injunction to stay in place until a trial date of December 2015. I filed the lawsuit on behalf of Larry Hicks and Pastor Jack Pidgeon. The City of Houston has appealed Judge Millard’s opinion. Mayor Parker is arguing that the United States Supreme Court’s recent decision regarding same-sex marriage justifies her unilateral decision to use your tax dollars to fund same-sex benefits. I believe the City of Houston and Mayor Parker are wrong. The recent marriage decisions addressed a new right for same-sex marriage, but did not establish an entitlement for financial support at taxpayer expense. Consistent with the same dichotomy that resulted in the abortion decisions, which established an individual right to abortion but an equally strong right by the States to deny public funding for abortion. Accordingly, we have responded to Mayor Parker’s unlawful use of your tax dollars and filed a responsive brief. The brief can be accessed by clicking here. I am hopeful that the Houston Fourteenth Court of Appeals, like Judge Millard, will once again make it clear that Mayor Parker’s executive actions to force the funding of same-sex benefits on the people of Houston are illegal. It is time for Mayor Parker to stop wasting tax dollars on issues that have already been resolved by Texas voters and Texas state courts. I will keep you posted on the progress of this litigation.

Read Judge Millard’s order here.

To review the situation: In November of 2013, after SCOTUS knocked down the federal Defense of Marriage Act (DOMA), Mayor Parker issued an executive order declaring that spousal benefits for city employees extended to legally married (i.e., in other states) same-sex spouses. This was both in response to the deletion of DOMA and in recognition of the fact that the 2001 charter amendment limited benefits to “employees, their legal spouses and dependent children”. Pidgeon and Hicks, abetted by Woodfill, then filed a lawsuit challenging this, and got an initial injunction against it from Family Court Judge Lisa Millard. A second lawsuit was then filed by three City employees who would have benefited from Mayor Parker’s order, to force the action that she took. Both suits were then moved to federal court in December, where Judge Lee Rosenthal dropped the injunction against the city. The second plaintiffs, represented by Lambda Legal, moved to combine the two suits, which were eventually moved back to state court last August. Woodfill and pals filed another lawsuit in state court in November; I have no idea what happened to that one.

As far as I know, that was the last update until after the Obergfell decision, at which time the Lambda Legal lawsuit was formally dismissed for being moot. I would have assumed the same would have happened to the Pidgeon/Hicks lawsuit, but I have not seen anything to confirm or deny that. As for this current action, I have no idea what legal basis Woodfill thinks he has to draw a distinction between same-sex marriage and opposite-sex marriage – silly me, I thought the SCOTUS ruling was pretty clear on that point – but after what we’ve seen in the past few weeks, who knows what a Texas court might do. Any legal types out there who can explain any or all of this better than I can, by all means please do. I’ll keep my eyes open for any further developments.

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.

Sixth Circuit stands up for inequality

It was bound to happen eventually.

RedEquality

Remember the big no-decision decision the Supreme Court issued on same-sex marriage just a month ago? The justices were asked — in five separate cases no less — to weigh in on whether same-sex couples have a constitutional right to marriage. The Supreme Court demurred on the question, which was a significant move in and of itself.

By declining to review any of the cases before it, the justices effectively blessed lower-court rulings that had struck down state gay marriage bans in five states. Circuit courts had been unanimous on the subject. So what more was there to say? Barack Obama even told Jeffrey Toobin recently that he thought this was the best Supreme Court decision of his tenure: a silent statement on the importance of letting cultural change spread across the country, one state at a time.

Well, so much for the power of silence. The U.S. Court of Appeals for the 6th Circuit just reversed rulings striking down gay-marriage bans in Michigan, Ohio, Kentucky and Tennessee. This means that four circuit courts have now struck down gay marriage bans, while one has upheld them. We no longer have unanimity. The Supreme Court, eventually, will have to step in.

The 6th Circuit decision is here. A lot of people had been waiting to see what the Fifth Circuit would do, if they would be the court that provided the circuit split that forced SCOTUS to act, but they took too long. They will still get a chance to have their say, of course, and perhaps now that they wouldn’t have to be the trailblazer for upholding this particular injustice they’ll feel more free to let their colors show. One hopes that in the end neither this ruling nor the one the Fifth Circuit is expected to make will matter. Daily Kos and Freedom to Marry have more.

Woodfill gets another injunction

WTF?

RedEquality

A state district judge on Wednesday ordered the city of Houston to stop offering health and life insurance benefits to the same-sex spouses of married employees, but city attorneys say they plan an immediate appeal that, once filed, could leave the benefits in place.

Days after being elected to her third and final term last November, Mayor Annise Parker announced Houston would extend employment benefits to the spouses of all married employees, gay or straight. It would be a liability for the city to enforce an unconstitutional ban on such benefits, she said, following the U.S. Supreme Court’s ruling last summer that the federal Defense of Marriage Act is unconstitutional.

Parker’s policy change spurred three lawsuits, including two from conservatives, who argued the policy change violates Houston’s city charter, the state’s Defense of Marriage Act and the Texas Constitution.

State District Judge Lisa Millard quickly signed an order preventing the city from offering the benefits, but that order was lifted in January after the city moved the case to federal court.

In August, a federal judge moved the proceedings back to state court, saying she did not have jurisdiction, but said “the substantive issues are likely to be decided, in a federal forum, regardless of this remand.”

The second lawsuit, filed by employees whose benefits were denied by the restraining order, led to a U.S. district judge leaving the benefits in place pending a ruling from the 5th U.S. Circuit Court of Appeals on whether Texas’ Defense of Marriage Act is constitutional; a federal judge in San Antonio ruled that law unconstitutional in February.

Jared Woodfill, a conservative activist who filed the first lawsuit against the city, filed another lawsuit last week, again asking Millard to stop Parker from issuing benefits to same-sex couples. As she did in January, Millard agreed to issue a temporary injunction Wednesday.

See here for the background and here for a copy of Woodfill’s latest publicity stunt lawsuit. Can someone please explain to me how Judge Millard has the authority to do this given the previous actions by the federal courts? I feel like I must be missing something here. Lone Star Q has more.

Jared Woodfill sues again

Dude is obsessed.

RedEquality

Former Harris County GOP Chair Jared Woodfill isn’t giving up on his fight to block the city of Houston from providing benefits to the same-sex spouses of employees.

After Mayor Annise Parker extended benefits to same-sex spouses last year, Woodfill sued on behalf of two Republican taxpayers seeking to halt them. But in August, a federal judge ordered the city to continue offering the benefits pending a final determination on the constitutionality of Texas’ same-sex marriage ban, likely to come from the U.S. Supreme Court.

Despite the federal judge’s order, Woodfill filed a second lawsuit last week asking a state family court judge to halt same-sex benefits in Houston. Ken Upton, a senior staff attorney at Lambda Legal who represents city employees and their spouses who receive the benefits, said Woodfill’s request goes against a basic principle of law.

“The US Constitution’s Supremacy Clause clearly provides that a decision based on federal law trumps a conflicting decision based on only state law,” Upton said. “This is a foundational principle that every first-year law student learns and is beyond question or doubt.”

Upton said it’s possible Woodfill wasn’t aware of the federal judge’s order preserving same-sex benefits in Houston. But he added, “It’s no secret.”

“He [Woodfill] knew our case had been filed,” Upton said. “You would think he would have checked its status.”

Lambda Legal filed its lawsuit, Freeman v. Parker, in federal court last December on behalf of the employees and their spouses, arguing that rescinding same-sex benefits would violate their right to equal protection under the US Constitution.

Earlier that month, State District Family Court Judge Lisa Millard issued a temporary restraining order halting the benefits in response to Woodfill’s lawsuit, Pidgeon v. Parker. However, the temporary restraining order expired after the city removed the lawsuit to federal court.

A federal judge later sent Pidgeon v. Parker back to state court, where it was dismissed in May “for want of prosecution,” according to Harris County district court records.

Now, Woodfill is asking Millard, a Republican, to issue a second order halting the benefits, which he again claims violate Texas’ same-sex marriage bans and a city charter amendment prohibiting domestic partner benefits.

A hearing on Woodfill’s request for a temporary restraining order is set for 9 a.m. on Wednesday, Nov. 5 in Millard’s 310th District Family Court. The new lawsuit is also called Pidgeon v. Parker.

See here for some background, and click over to Lone Star Q to see a copy of this latest lawsuit. I don’t have anything to add except I hope this winds up costing Woodfill a ton in court costs.

All married city employees may continue to receive spousal benefits for now

Good news.

RedEquality

Married same-sex couples will continue to receive health and life insurance benefits from the city of Houston, a federal judge ruled Friday, pending the outcome of an appeal in a separate lawsuit.

[…]

[Mayor Annise] Parker’s policy change spurred two lawsuits.

The first lawsuit came from conservatives, who argued the policy change violates Houston’s city charter, the state’s Defense of Marriage Act and the Texas Constitution. A state district judge quickly signed an order preventing the city from offering the benefits, but that order was lifted in January after the city moved the case to federal court. On Thursday, U.S. District Judge Lee Rosenthal moved the proceedings back to state court, saying she did not have jurisdiction over the case, but adding that “the substantive issues are likely to be decided, in a federal forum, regardless of this remand.”

The second lawsuit came from city employees whose benefits were denied by the temporary restraining order. U.S. District Judge Sim Lake on Friday granted the plaintiffs’ motion to leave Houston’s same-sex benefits in place pending a ruling from the U.S. 5th Circuit Court of Appeals on whether Texas’ Defense of Marriage Act is constitutional. A federal judge in San Antonio in February ruled the law unconstitutional.

Feldman and Parker, the first openly gay mayor of a major American city, argue the state’s ban is superseded by the recent federal actions related to same-sex benefits.

See my summary from Sunday of Judge Rosenthal’s ruling, which you can read here thanks to Robbie Westmoreland. The Lambda Legal summary page for this lawsuit, Freeman et al. v. Parker and City of Houston, is still not updated. The Fifth Circuit still has not scheduled its hearing on the appeal in the DeLeon v. Perry case; they had to wait for Greg Abbott to file his incredibly lame brief first. As for the first lawsuit, the District Clerk records for it shows its status as “Disposed (Final)” as of May 9, which confuses me a little. Perhaps the case information hasn’t been updated to reflect the remand from federal court yet, or perhaps there’s a different plaintiff now and I’m not finding the correct case? I’m not sure. In any event, this is where things stand for now.

Lawsuit over same sex benefits for city employees moved back to state court

RedEquality

The passage of the Houston Equal Rights Ordinance and the efforts to put a repeal referendum on the ballot have been one of the big local stories this year, but you may recall that before we were all talking about HERO there was another big story relating to equality in Houston. Last November, Mayor Parker announced an update to city policy that would offer health and life insurance benefits to all spouses of legally married employees, including same-sex couples. At the time, the Mayor noted that same sex marriage was legal in 17 states plus the District of Columbia, and since the 2001 charter amendment that banned “domestic partner benefits” for city employees did so by restricting them to employees and their “legal spouses”, there was no justification for limiting that to opposite sex couples. Needless to say, the string of legal decisions since then concerning same sex marriage, including in Texas, has done nothing to undermine or contradict her position.

Naturally, there was a lawsuit filed, by a couple of Republicans at the urging of Jared Woodfill. They succeeded in getting a temporary restraining order, signed by state District Judge Lisa Millard. The city then moved the lawsuit to the federal courts, and succeeded in getting the restraining order dropped pending subsequent hearings. In the meantime, a second lawsuit was filed by two city employees who were beneficiaries of the change in policy to preserve their benefits. These plaintiffs sought to combine the two lawsuits going forward. In January, Greg Abbott stuck his nose in by filing amicus briefs on behalf of Woodfill and his crowd.

Aaaaaaand that, to the best of my knowledge and ability to search Google, is the last we heard of this until this past Thursday, when federal judge Lee Rosenthal issued a ruling that returned the case to state court. I’ve not been successful in figuring out how to find a copy of Judge Rosenthal’s order, so that’s all I can tell you for now. The Lambda Legal summary page for the case (they are representing the plaintiffs in the second lawsuit) has no updates as of today, but perhaps there will be more after the weekend. So that’s all I know for now. If you know any more, please leave a comment.

Next steps in the Texas same sex marriage lawsuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

Federal judge strikes down Texas’ anti-same sex marriage law

Wow.

RedEquality

A federal judge in San Antonio ruled Wednesday that Texas’ ban on same-sex marriage unconstitutionally deprives some citizens of due process and equal protection under the law by stigmatizing their relationships and treating them differently from opposite-sex couples.

U.S. District Judge Orlando Garcia cited recent U.S. Supreme Court rulings as having trumped Texas’ moves to ban gay marriage.

“Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent,” he said in his order. “Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.”

But Garcia’s ruling, while a major victory for groups seeking to make marriage legal for gay and lesbian couples nationwide, will not win them Texas marriage licenses anytime soon.

Although Garcia issued a preliminary injunction against the state’s enforcing its 2003 law and 2005 constitutional amendment that limit marriage to opposite-sex couples, he stayed it from taking effect until his ruling can be reviewed on appeal.

It will unquestionably be appealed, and even with the so far unbroken string of victories for marriage equality these past three months I still can’t shake the feeling that the Fifth Circuit will come up with some reason to overturn this decision. That concern can wait for another day. For today, let’s celebrate this big step forward. Lone Star Q has a copy of the opinion. Here’s a statement from Freedom to Marry:

oday a federal judge in San Antonio joined judges in Utah, Ohio, Oklahoma, Kentucky and Virginia in ruling that bans on same-sex couples marrying or recognizing out-of-state marriages of same-sex couples are unconstitutional.

Evan Wolfson, founder and president of Freedom to Marry, released the following statement:

“Today the 6th federal judge in a row has ruled – in Texas – that there is simply no legitimate justification for denying marriage to loving gay and lesbian couples. The court’s holding is solid and serious, and follows the language and logic of the Supreme Court’s marriage ruling last year and the Constitution’s clear command. With 47 marriage cases in 25 states now moving forward, and the possibility that a freedom to marry case will again reach the Supreme Court as soon as 2015, we must continue the conversations and progress — Texan to Texan, American to American — that show that all of America is ready for the freedom to marry.”

The Public Research Religion Institute released data today that shows increased support for the freedom to marry in the South and in Texas. Nearly two-thirds (65%) of Southern millennials support the freedom to marry, and support across the South is split, with 48% in support and 48% opposed. Support has grown the fastest in the South of any region in the country, more than doubling in the last ten years. In Texas, support is split, with 48% of Texans in support and 49% opposed.

We are living in exciting times, but there’s still a lot of work to be done. Here’s Chuck Smith from Equality Texas:

“Today’s ruling by Judge Garcia is a huge victory that moves Texas one step closer to the freedom to marry”, said Equality Texas executive director Chuck Smith. “The U.S. Supreme Court ruling in Windsor made it clear that animus or moral disapproval is not an acceptable justification for denying any American their constitutional right to equal protection of the law. We are gratified to see Judge Garcia uphold the Constitution of the United States and declare that Texas’ restrictions on the freedom to marry are unconstitutional and unenforceable. We anxiously await the day when the United States Supreme Court will reach the same conclusion.”

This case will proceed on appeal. And Equality Texas will continue to work to increase public support in Texas for the freedom to marry. Follow this case and other pending legal cases in Texas at WhyMarriageMattersTX.org.

Meanwhile, Texas is still a state where it is legal to fire or refuse to hire someone solely because they are or are perceived to be lesbian, gay, bisexual, or transgender. Texas is still a state where adopted children who have two moms or two dads cannot obtain an accurate birth certificate. Texas is still a state without standardized procedures to correct gender markers on identity documents. And Texas is still a state that keeps a statute declared unconstitutional by the U.S. Supreme Court over a decade ago in Lawrence v. Texas on the books.

I’ll have more after the story gets reported in the papers and the inevitable howling and gnashing of teeth by the forces of inequality begin. Until then, I say “Hell, yeah!” Burka, Texpatriate, BOR, Texas Leftist, and Hair Balls have more.

Add Virginia to the list

The list of states whose law banning same sex marriage has been struck down.

RedEquality

A federal judge ruled Thursday that Virginia’s ban on same-sex marriage is unconstitutional, making it the first state in the South to have its voter-approved prohibition overturned.

U.S. District Judge Arenda Wright Allen issued a stay of her order while it is appealed, meaning that gay couples in Virginia will still not be able to marry until the case is ultimately resolved. Both sides believe the case won’t be settled until the Supreme Court decides to hear it or one like it.

[…]

The Virginia Attorney General’s Office took the unusual step of not defending the law because it believes the ban violates the equal protection clause of the 14th Amendment. In her ruling, Wright Allen agreed.

“The court is compelled to conclude that Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry. Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country’s cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family,” Wright Allen wrote.

Wright Allen’s stay was requested by the Virginia Attorney General’s Office in order to avoid a situation similar to what happened in Utah after a federal judge declared that state’s ban on gay marriages unconstitutional.

[…]

The Virginia case centered on a gay Norfolk couple who were denied a marriage license by the Norfolk Circuit Court in July, shortly after the Supreme Court struck down the federal Defense of Marriage Act. A Chesterfield County couple who married in California and are raising a teenage daughter also later joined the lawsuit, seeking to have their marriage recognized in Virginia. The attorneys representing the plaintiffs are the same ones who successfully challenged California’s voter-approved ban on gay marriages in court.

In her ruling, Wright Allen said the lesbian couple “suffer humiliation and discriminatory treatment on the basis of their sexual orientation.”

“This stigmatic harm flows directly from current state law.”

You can see a copy of Judge Wright Allen’s ruling here, and a press release from AFER (the American Federation for Equal Rights), who represented the plaintiffs, here. This ruling comes on the heels of the ruling in Kentucky and the hearing in Texas, for which we are still awaiting a ruling. Don’t make us wait too long for that, Judge Garcia.

In the meantime over in Nevada, where the AG and Governor recently announced they would drop their defense of that state’s anti-same sex marriage law, there was an admirably bipartisan rally in favor of changing that state’s law.

Several gay couples helped a coalition of advocacy groups in Nevada put a face on what they called marriage equality on Thursday, launching a push to get the Legislature in 2015 and voters in 2016 to change the state constitution to allow same-sex unions.

“It really isn’t complicated. Love is love,” said Vivian Wright-Bolton, a Las Vegas language translation businesswoman, mother and committed partner in a same-sex relationship.

[…]

The American Civil Liberties Union of Nevada hosted the events for a campaign they called “Freedom Nevada,” along with the Progressive Leadership Alliance of Nevada and Human Rights Campaign nonprofits, and the Freedom to Marry Inc. lobbying group.

ACLU Executive Director Tod Story said the aim was to begin sharing real experiences of loving gay and lesbian couples “and show why marriage matters.”

Jeff Garofalo, a lawyer and self-described conservative Republican, was one of 17 supporters during the news conference at the Grant Sawyer state office building in Las Vegas.

Some held signs, in English and Spanish, calling for same-sex marriage rights.

Garofalo pointed to what he called a varied “checkerboard of rights” from state to state, and called marriage a basic freedom.

“As a matter of policy, long-term committed relationships should be encouraged,” he said.

[…]

Reno Mayor Bob Cashell said at a news conference at the Trinity Church parish that tourism could benefit from support of gay marriage.

“To be competitive we need to continue to welcome a diversity of business to our great state,” said Cashell, a Republican.

“For somebody who has been married 49 years,” he added, “I can’t imagine someone telling me I couldn’t marry the person I love.”

Wouldn’t it be nice to hear a few prominent Republicans in this state adopt that kind of language? Instead, we have Ted Cruz. Well, if they won’t join us, we’ll have to beat them. Daily Kos has more.

Davis officially supports same sex marriage

Right on.

Sen. Wendy Davis

Sen. Wendy Davis

Sen. Wendy Davis said Thursday that she supports same-sex marriage and that Attorney General Greg Abbott, her presumed general-election opponent in the race for governor, should stop defending the state’s ban.

“It’s my strong belief that when people love each other and are desirous of creating a committed relationship with each other that they should be allowed to marry, regardless of their sexual orientation,” Davis told the Express-News editorial board.

Davis, D-Fort Worth, said she is “pleased” that the state’s constitutional definition of marriage, as being between a man and a woman, is under challenge in federal court.

“I think that what we see happening at the federal level in terms of constitutional interpretations on that provide some hope that it may be found unconstitutional,” she said.

The Republican attorney general’s office is defending the constitutional provision.

Asked if she would call on him to stop doing so – as she earlier called on Abbott this week to reach a settlement in a state school funding lawsuit – Davis said that “makes perfect sense. We’ve seen that happen.”

She cited such decisions by Virginia and Nevada.

“Obviously our AG has the capacity to do the same if he chooses to do so,” she said. Asked if she would call on him to do so, she said yes.

Damn right. And another reminder, as if one were needed, of how important the elections this year are. The next AG will be inheriting a lot of ongoing litigation from Greg Abbott. Some of those lawsuits really ought to be dropped or settled, as they’re little more than ideological crusades that can have unexpected costs. One of the consequences of this election will be whether or not there’s any momentum for settling these cases and dialing back the activism. In the specific case of same sex marriage and the litigation over it, it’s also a matter of recognizing that the state of Texas is clearly on the losing side of the argument. We can come to terms with that now, or we can be like Ted Cruz and the state of Kansas and be forced to come to terms with it later. Wendy Davis has chosen wisely, and we should all be happy about that. Lone Star Q and Texpatriate have more.

UPDATE: Just in time for Virginia’s same sex marriage ban to be declared unconstitutional. I’ll have a full post on that tomorrow.

No ruling in Texas same sex marriage lawsuit

We’re going to have to wait to see if an injunction will be granted against Texas’ Double Secret Illegal Anti-Gay Marriage constitutional amendment.

RedEquality

A San Antonio federal judge issued no decision Wednesday in a request to bar the state from enforcing its ban on same-sex marriage.

The request for a preliminary injunction by two gay couples who sued the state of Texas in October is seen as a giant step towards marriage equality.

Plaintiffs Nicole Dimetman, her spouse Cleo DeLeon and Vic Holmes and his life partner, Mark Phariss, whom were featured in a story this weekend in the San Antonio Express-News, allege the 2005 ban is unconstitutional because it treats the LGBT community unequally.

“This is one of the most important things we’ve ever done,” said Dimetman, who married DeLeon in 2009 in Massachusetts. “We look forward to our day in court.”

Their suit rides a wave of change in the legal and social landscape. It is among more than 40 cases challenging same-sex marriage bans in more than 20 states, including some where federal courts have ruled that similar bans are unconstitutional. Two other suits are pending in federal courts in Texas.

The hearing Wednesday morning before U.S. District Judge Orlando Garcia lasted about two hours. Federal marshals had geared up in case there were clashes between supporters of gay rights and opponents, courthouse sources said.

“As we all know, no matter how I decide this, this matter is going to be appealed in time,” Garcia said, adding that any of the courts who have been dealing with same-sex marriage will make their way to the Supreme Court

To get a preliminary injunction, the plaintiffs would have had to convince Garcia that they are likely to win when the full lawsuit is litigated later and show that they are being harmed right now.

Judge Garcia said he would take the matter under advisement, but did not say when he would issue a ruling. Kind of an anticlimax if you ask me, but we’ll see how it goes. In the meantime, we did get a ruling on same sex marriage in Kentucky.

In a ruling that could open the door to gay marriage in Kentucky, a federal judge on Wednesday struck down Kentucky’s ban on recognizing valid same-sex marriages performed in other states, saying it violates the U.S. Constitution’s guarantee of equal protection under the law.

U.S. District Judge John G. Heyburn II joined nine other federal and state courts in invalidating such bans.

Ruling in a suit brought by four gay and lesbian couples, Heyburn said that while “religious beliefs … are vital to the fabric of society … assigning a religious or traditional rationale for a law does not make it constitutional when that law discriminates against a class of people without other reasons.”

Heyburn said “it is clear that Kentucky’s laws treat gay and lesbian persons differently in a way that demeans them.”

Citing the U.S. Supreme Court’s ruling throwing out the Defense of Marriage Act, Heyburn struck down the portion of Kentucky’s 2004 constitutional amendment that said “only a marriage between one man and one woman shall be valid or recognized as a marriage in Kentucky.”

You can see a copy of the decision here. The judge did not rule on whether same sex marriages must be allowed to be performed in Kentucky, as that was not part of the lawsuit, just that Kentucky must recognize marriages that are performed in other states. Defenders or Kentucky’s ban on same sex marriage made the same tired arguments about “tradition” and procreation (Texas also made them), which Judge Heyburn swatted down. I’m sure this will be appealed, but for now chalk up another win for the good guys. So far, no federal judge has ruled against the plaintiffs in any of these lawsuits. I sure hope Judge Garcia won’t be the first. Equality Texas, Lone Star Q, and the Observer have more.

Hearing for the Texas federal same sex marriage lawsuit is tomorrow

All eyes will be on San Antonio on Wednesday.

RedEquality

Like most new parents, Nicole Dimetman and Cleopatra De Leon plan their days around their small child. Theirs is an ordinary family life, they say, but it is by no means easy.

Although married in 2009 in Massachusetts, where same-sex marriage is legal, they live in Texas, a state that doesn’t recognize their union. When De Leon delivered their child in 2012, Dimetman’s name wasn’t allowed on the birth certificate.

“There was that time period that I was the only parent,” De Leon said, a situation that never affects married heterosexual couples. “If something happened to me during his birth, he would have been considered an orphan.”

In October, the women, along with another couple, filed a federal lawsuit in San Antonio challenging the state’s ban on same-sex marriage. On Wednesday, they will go before U.S. District Judge Orlando Garcia, who will consider a preliminary injunction, a court order that would bar Texas from enforcing the ban while the suit continues to be litigated.

As the nation’s second-most populous state, “any decision that affects the marriage equality in Texas has national implications,” said San Antonio-based attorney Neel Lane, who represents the couples.

Indeed, the implications of the Texas cases could transform the national debate over gay marriage.

[…]

To prevail on the injunction request, the couples have to show they are likely to win when the full suit is litigated, and that they “are being harmed right now,” according to attorney Lane.

“Our belief is the arc of equal protection cases … points directly to recognizing that people have the right to marry regardless of gender,” Lane said. “Gays and lesbians are not afforded access to marriage and all the benefits from it. That is a denial of equal protection of the law. It is unequal when some people are not permitted to do what most others are permitted to do. And there’s no basis for denying them that right.”

See here and here for the background on the Texas case. As you can see from the latter link, I was rather pessimistic about this at the time that the hearing date was set. Then along came the rulings in Utah and Oklahoma and Ohio, and the decision by Virginia AG Marc Herring to not defend that state’s law, and just like that things look a whole lot different. There’s still a ton of decisions to be made, by the district court in Virginia and the appeals court for Utah and Oklahoma. Ohio, the site of a narrower decision concerning death benefits, is now on the clock with its own lawsuit (via Scalzi). And I’d still bet money on the Fifth Circuit Court of Appeals doing something hideous when they get the opportunity to weigh in. But it’s clear that the ground has shifted, and that the plaintiffs have by far the stronger argument. I don’t know what’s going to happen in court tomorrow, but it’s mind-boggling to think that we’re at this point barely eight years after that horrible, discriminatory amendment was passed. I truly hope we can start the countdown till its final day. Lone Star Q has more.

UPDATE: And late yesterday, the Democratic Attorney General of Nevada, with the agreement of the Republican Governor of Nevada, has announced the state will not defend its ban on same sex marriage against litigation there. Another nail in the coffin.

On, Wisconsin

From the ACLU of Wisconsin:

RedEquality

The American Civil Liberties Union, the ACLU of Wisconsin and the law firm of Mayer Brown filed a federal lawsuit today on behalf of four same-sex couples who wish to marry in Wisconsin or are seeking recognition for their legal out-of-state marriages.

The plaintiffs include Roy Badger and Garth Wangemann of Milwaukee, who have been together 37 years. Three years ago Wangemann had much of his right lung removed after being diagnosed with lung cancer. Following the operation, a complication occurred and he was put into a medically induced coma for nearly a month. His progress was uncertain, and Wangemann’s father attempted to override Badger’s power of attorney to have his son taken off life support. Before that could happen, Wangemann recovered.

“What upset me the most was that after all of our time together, our relationship was not fully recognized by my family and there was a real danger that my wish to give Roy the ability to make decisions about my care could be stripped away,” Wangemann said. “Thankfully, our wishes held in this case. But without the protections that come with marriage, the consequences can literally be a matter of life or death.”

Other plaintiffs in the case are Carol Schumacher and Virginia Wolf of Eau Claire; Charvonne Kemp and Marie Carlson of Milwaukee; and Judi Trampf and Katy Heyning of Madison. Read their stories.

Wisconsin’s ban on marriage for same-sex couples prevents them from securing the hundreds of protections that state law provides to married couples. Wisconsin law subjects same-sex couples to an additional harm that is unique among states that deny same-sex couples the freedom to marry. The only way for Wisconsin couples to get the federal protections that come with marriage is for them to go out of state to marry. But Wisconsin law says that may be a crime punishable by nine months in jail and a $10,000 fine.

Among the plaintiff couples, Schumacher and Wolf were legally married in another state, raising the possibility of prosecution back at home. The lawsuit challenges the overall ban as well as the application of this criminal law to same-sex couples who are forced to choose between being denied federal protections and the risk of criminal prosecution.

“These families simply want the security and recognition that only marriage provides,” said Larry Dupuis, legal director of the ACLU of Wisconsin. “They have built their lives and raised children here. It is wrong for the state to treat these loving and committed couples as second-class citizens, and it is cruel to place them in a catch-22 where they can’t even travel elsewhere to obtain federal protections without their marriage being labeled a crime.”

The lawsuit was filed in the U.S. District Court for the Western District of Wisconsin. The plaintiffs allege that the state’s constitutional marriage ban sends a message that lesbians, gay men, and their children are viewed as second-class citizens who are undeserving of the legal sanction, respect, protections, and support that heterosexuals and their families are able to enjoy through marriage.

Criminalizing out of state marriages is a nasty little twist. I’m surprised there wasn’t a lawsuit sooner.

Meanwhile, the Virginia case was heard yesterday.

The ban on same-sex marriage is just like an old Virginia law that made interracial marriages illegal, and it’s time for Virginia to stop discriminating against gays and lesbians, a state attorney told a federal judge Tuesday.

But lawyers who support the ban said if the law is to change, it should be done by the legislature. They also argue that there has never been a fundamental right to same-sex marriage.

“We have marriage laws in society because we have children, not because we have adults,” said attorney David Nimocks of the religious group Alliance Defending Freedom.

The case is the first one in the South to reach oral arguments before a federal judge. Recently elected Democratic Attorney General Mark Herring announced Jan. 23 that he would not defend the state in the lawsuit because he believed it violates the equal protection clause of the 14th Amendment.

In overturning bans in Utah and Oklahoma, federal judges have also said those laws violate the 14th amendment.

Virginia Solicitor General Stuart Raphael told the judge Virginia had frequently been on the wrong side of history, citing the state’s ban on interracial marriages, its defense of segregation as well as its opposition to allowing female students into the Virginia Military Institute.

Raphael said supporters of the ban have failed to prove how allowing gay marriage would make opposite sex couples less likely to marry.

“That’s the Achilles heel in the argument,” he said.

[…]

U.S. District Judge Arenda L. Wright Allen said she would rule soon. If Wright Allen finds Virginia’s law unconstitutional, Raphael asked her to issue a stay so that nobody can get married until the case is heard on appeal.

He said the state wanted to avoid the situation Utah found itself in after marriages were briefly allowed to occur there before a stay was issued.

With Herring’s office deciding to side with the plaintiffs, the job of defending the law fell to the legal team of Norfolk’s Circuit Court clerk.

Attorney David Oakley said the court should respect the legislative process that created the law. If the law is to be changed, it should be done through the legislature, he said.

In addition, an attorney for the religious group Alliance Defending Freedom argued on behalf of the Prince William County’s clerk, which was allowed to intervene in the case. The clerk asked to intervene because of worries the attorney general’s office wouldn’t do an adequate job defending the law.

And there was some action in Utah as well.

The state of Utah offered a tailored defense of its ban on same-sex marriage in a brief filed late Monday evening with the 10th Circuit Court of Appeals, arguing its laws are all about the long-term interests of children.

Utah has chosen a definition of marriage that is “principally a child-centered institution, one focused first and foremost on the welfare of children rather than the emotional interests of adults,” the state said. “And by reinforcing that understanding, the state gently encourages parents to routinely sacrifice their own interests to the legitimate needs and interests of their children.”

That definition is not designed to demean other family structures “any more than giving an ‘A’ to some students demeans others,” the state said.

But redefining marriage in “genderless” terms likely would result in lower reproductive rates and fewer children being raised in the ideal environment provided by biological, opposite-sex parents, the state said.

[…]

Attorneys for the three same-sex couples who are challenging Utah’s ban have until Feb. 25 to file a response, and the state’s final filing must be submitted by March 4.

Oral arguments are scheduled for April 10 in Denver. The three-judge panel that will hear the case — as well as an appeal from the state of Oklahoma involving a similar ban — will be picked 10 days before the hearing.

You can see the full brief here. I’m pretty sure these are the same basic arguments that were made in the Prop 8 case in California. There may be some differences, but I’m not a lawyer so this is just my impression. I am sure we’ll hear more of the same when Texas’ case gets heard.

Abbott inserts himself in Houston same sex benefits lawsuit

Not a surprise.

Still not Greg Abbott

Texas Attorney General Greg Abbott has filed briefs arguing that a state court should be given an opportunity to declare Houston’s new policy of granting benefits to some same-sex partners of employees unlawful under Texas’ marriage laws.

In the first of two amicus briefs, Abbott argued that a lawsuit filed by a pair of Houston residents to stop Mayor Annise Parker’s decision last November to grant benefits to same-sex spouses of employees married legally in other states should remain in a state district court for review. The city has tried to get the case moved to federal court to take advantage of the U.S. Supreme Court’s decision last year overturning the federal Defense of Marriage Act.

Abbott’s amicus brief argues that moving the lawsuit to federal court deprives the state of its authority to resolve the cases involving Texas’ Defense of Marriage Act.

“The defendants have challenged the constitutionality of Texas’s marriage laws,” Abbott writes. “This case should be remanded to state court as soon as possible.”

Abbott’s second amicus brief came in another lawsuit filed by national gay rights group Lambda Legal in a bid to get a judge to uphold the mayor’s change in policy.

Abbott argues that since the Lambda Legal lawsuit seeks to uphold the city’s decision to offer benefits to same-sex marriage partners, there is no dispute for the federal court to decide. He asks that the Lambda Legal suit be dismissed.

See here, here, and here for the background. I had assumed Abbott would get involved once Mayor Parker made the announcement. To meddle is his nature, and I’m sure he was feeling some pressure from the usual suspects to Do Something. Indeed, Harris County GOP Chair Jared Woodfill hoped the suit would attract Abbott’s interest, so clearly everything is proceeding as planned. I Am Not A Lawyer, so I don’t know how to evaluate the merits of Abbott’s claims. I also can’t find the briefs in question, so you’re on your own if you want to venture some analysis. BOR, PDiddie, and Lone Star Q have 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.

City benefits for same sex spouses back on

For now, at least.

RedEquality

A federal judge ruled Thursday that same-sex couples legally married in other states can keep health and life insurance benefits that were extended to spouses of city of Houston employees in November.

[…]

[Noel] Freeman’s husband’s benefits, and those of spouses of four other city employees, were temporarily halted in December after two Harris County Republicans, led by Jared Woodfill, the county’s GOP chairman, sued the city.

The lawsuit claims Mayor Annise Parker’s policy violates Houston’s city charter, the state’s Defense of Marriage Act and the Texas Constitution.

After the lawsuit was filed in family court, state District Judge Lisa Millard signed a temporary restraining order putting the brakes on the administration of the benefits.

Days later, lawyers for the city of Houston had the case moved to federal court. At Thursday’s hearing, U.S. District Judge Lee Rosenthal declined to grant the GOP’s request for a restraining order.

It was a difference Woodfill seized on after the hearing.

“Judge Millard’s position was that the Mayor’s actions were illegal and unlawful and she immediately restrained the Mayor from going forward,” Woodfill said. “This judge has not decided whether the Mayor’s actions were illegal, so she gave us more time to do additional briefing.”

Woodfill will next try to convince Rosenthal that the case should be moved back to state court. Only after Rosenthal decides if it will stay in her court or be sent back will both sides start to argue over the substance of the case.

See here, here, and here for the background. The next hearing will likely be sometime in February – the story doesn’t specify a date, just that it’s “more than a month away” – so that’s that for the immediate future. But look, does anyone believe that regardless of the outcome of this case that Woodfill is going to prevail in the end? The demise of DOMA and the court rulings in Utah and Ohio have shown that the dam is busted. It’s just a matter of time, and that time is sooner, not later. Jared Woodfill can try to build a wall of sand against the tide, but the tide is going to win. The only question is how much harm he will inflict on people like Noel Freeman and Brad Pritchett, and on the Harris County GOP, before he is forced to accept the inevitable. Texpatriate has more.

Lambda Legal sues Houston over same sex spouse benefits

I didn’t see this coming.

RedEquality

Lambda Legal [Thursday] filed a federal lawsuit against Houston Mayor Annise Parker and the City of Houston seeking to preserve spousal benefits, including health insurance, covering the same-sex spouses of city employees. The lawsuit was filed in the U.S. District Court for the Southern District of Texas on behalf three City of Houston employees legally married to same-sex spouses and follows notification these employees received recently that the City, one month after extending the employee coverage for their spouses, was being forced to withdraw these benefits and cancel the coverage.

“City employees who are married to same-sex spouses are doing the same work as coworkers who are married to different-sex spouses—at the end of the day this case is about equal pay for equal work. These employees, some who have worked for the City for many years, acted in good faith when notified the City was extending health coverage benefits to their legal spouses,” said Kenneth Upton, Senior Counsel in Lambda Legal’s South Central Regional Office in Dallas.

They enrolled for spousal benefits, including health insurance, paid the premiums, scheduled doctor visits and underwent treatments that will require ongoing care. Now, suddenly, the rug is pulled out from under them.”

Houston Mayor Annise Parker on November 20, 2013 announced that all lawfully-married city employees, including those who married same-sex partners in jurisdictions where such marriages are legal, would be eligible to enroll for spousal benefits, including health insurance coverage, under the City’s employee benefits health plan. The three plaintiffs named in Lambda Legal’s lawsuit enrolled their spouses as soon as they received notification of the policy change. Shortly thereafter, however, two Houston taxpayers sued the Mayor and the City in Family Law Court claiming the benefits were illegal and, without giving the Mayor or the City notice, secured a temporary restraining order (TRO) blocking extension of the benefits. The City is defending against the challenge to the Mayor’s decision to ensure equal employee benefits for all workers.

See here and here for more on the lawsuit and injunction that forced the city to suspend health insurance enrollments for same sex spouses, and here for more on the original order to provide those benefits. It’s clear from reading this that Lambda Legal is taking this action not to oppose the city but to support it in its defense against the injunction. I’m not a lawyer, but I presume the reason why Lambda Legal filed this separate action was for the purpose of having the two lawsuits joined so they could directly contribute to the defense against the injunction. I trust one of the lawyers in my audience will correct me if I’m wrong about that. The hearing will be Monday, January 6, so I hope we get a quick and favorable resolution to this. I also hope the Chronicle takes note of this new development sometime before then. The brief filed by Lambda Legal is here, and you can keep track of developments in the case here. Link via BOR.

Meanwhile, in Utah, it’s off to the Supreme Court for one last shot at stopping the tide from coming in.

Utah officials will appeal to the U.S. Supreme Court a lower-court ruling allowing same-sex marriage in the state, the state attorney general’s office said Thursday.

Newly appointed Utah Attorney General Sean Reyes will seek a stay of the federal judge’s ruling after state officials consult first with outside attorneys over the next few days.

“It is the intent of the Attorney General’s Office to file with the Supreme Court as soon as possible,” the attorney general’s office said in a statement.

The emergency appeal, when filed, would go to Justice Sonia Sotomayor because she has jurisdiction over appeals from Utah and nearby states. She could rule on the state’s application herself or ask the entire nine-member court to weigh in.

Sotomayor is likely to refer the Utah request to the entire court, as is tradition with high-profile traditional cases, said Carl Tobias, a professor of constitutional law at the University of Richmond.

The forces against progress probably shouldn’t get their hopes up.

To secure a stay of the ruling, the state has to prove two things, says Clifford Rosky, a University of Utah professor of law and expert on lesbian, gay, bisexual and transgender legal issues. First, the state would have to prove that they are likely to win, Rosky, a gay-rights advocate, said this week. Second, they would have to prove that allowing the marriages to proceed would do “irreparable harm.” With hundreds of gay couples having already received licenses, that second argument is hard to make, he argues.

“If same-sex couples have already begun to marry, in the hundreds now, what would be the ‘irreparable harm’ of additional same-sex couples marrying?” he said early this week. “The cat’s out of the bag.”

Whatever happens, expect things to move quickly, Carl Tobias, a professor at the University of Richmond School of Law and a constitutional law expert, told the Salt-Lake Tribune. ”The state has always thought time was of the essence, and the justices are likely to agree and move very quickly once the papers are in,” he said.

As of the end of the day Dec. 26, at least 905 same-sex couples had received marriage licenses in Utah since last Friday’s ruling, according to the paper. And that’s despite the holidays and some county clerks’ initial reluctance to issue the licenses. Salt Lake County alone issued 353 such licenses Monday, dwarfing a previous record of 85.

You almost have to feel a little sympathy for SCOTUS having this issue dropped in their laps so quickly after their previous ruling.

“If the court thought it was going to get a few years,” said Michael C. Dorf, a law professor at Cornell, “I think they were naïve.”

The Supreme Court’s two decisions in June were finely balanced, with legal experts saying they had achieved the twin goals of advancing the cause of gay rights and avoiding a backlash in parts of the country not ready to embrace same-sex marriage.

One decision struck down the part of the federal Defense of Marriage Act that denied federal benefits to same-sex couples in states that allowed such unions. The other declined to say whether the Constitution required states to allow such marriages in the first place.

Since then, the pace of change has been very rapid. When the justices heard arguments in the cases in March, same-sex marriage was permitted in nine states and the District of Columbia. If the Utah decision stands, the number of states allowing such marriages will have doubled, to 18.

[…]

Michael J. Klarman, a historian at Harvard Law School and the author of “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage,” said he had expected rapid change — but not this rapid.

“The Utah decision is unique,” he added, “because it’s in a state with so much opposition to same-sex marriage. In Utah, you’re going to have a real experiment in backlash.”

Just wait and see what happens if the state of Texas gets injuncted. The hot air that will get generated will be enough to make Mars a temperate zone.

Professor Dorf said there are probably not five votes on the Supreme Court to block Judge Shelby’s ruling. “On the strictly legal argument,” he said, “it’s hard to justify granting a stay.”

But he added that the lower courts should have done so, partly because of the potential cruelty of voiding the new marriages and partly because the Supreme Court is hard to predict.

“It’s pretty clear that even the five justices who are sympathetic to same-sex marriage would rather take a few years before getting there,” Professor Dorf wrote in a blog post on Tuesday. “If their hand is forced, as it now will be, it’s impossible to say with certainty what they’ll do.”

Of course, if SCOTUS had taken the bull by the horns in June and come to the correct conclusion that injustice anywhere is injustice everywhere, we wouldn’t be here now. To sum up, I agree with Josh Marshall.

Now there are some conceivable federalism grounds where you could maybe eke out a reason why the Constitution bars the federal government from doing something but allows it to states. But it’s a big stretch and probably an impossible one in a country where opposition to same sex marriage is declining rapidly every year. There’s also the real world reality that the 10th Circuit denial of a stay seems certain to guarantee a pretty substantial population of same sex couples in the state by the time the appellate Court actually comes to a decision.

In this sense – and not to be overly dramatic – it’s almost reminiscent of the Fall of the Berlin Wall – when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with faits accompli they were likely to accept eventually much more rapidly than they would have preferred.

So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their our logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.

I think everybody, on each side of the issue, has realized for the past two or three years that it’s only a matter of time till this happens. But the decade of different policies from state to state now seems like it won’t happen. I don’t want to end without noting that a lot of lawyering remains to be done and nothing is ever certain and even when it’s all but certain it’s not easy. But I see little way to look at the last week and not conclude that gay marriage will be the law of the land in every state in the country in the near future. Probably during the Obama presidency and maybe sooner still.

It’s just a matter of time now. And given that it’s just a matter of time, sooner is better than later. Why make this harder than it needs to be?

A lot more court action on same sex marriage is coming

One way or another, 2014 is going to be a milestone year for marriage equality.

RedEquality

Advocates on both sides of the gay marriage debate predicted that the U.S. Supreme Court ruling in June that overturned part of a federal ban on gay marriage would create a pathway for states to act.

They were right.

In the six months since the decision, the number of states allowing gay marriage has jumped from 12 to 18, a trend that started before the high court ruling that’s been reinforced since. Judges in New Mexico, Ohio and, most surprisingly, conservative, Mormon-heavy Utah all ruled in favor of same-sex marriage in just the past week. Both Utah’s case and another in Nevada will next be heard by federal appeals courts, putting them on the path toward the high court. Ohio’s case, which recognized same-sex death certificates, also will likely be appealed.

The series of court decisions has many asking: When will the Supreme Court step in and settle the issue for good?

[…]

More state rulings in favor of gay marriage could be in the works in 2014. The thinking goes, if it can happen in ultra-conservative Utah, it can happen anywhere. Utah is home to The Church of Jesus Christ of Latter-day Saints, which still teaches its members homosexuality is a sin despite a softening of their rhetoric in recent years.

“The ruling has had a symbolic impact already,” Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide. “It is recognition that the nation’s attitudes, from public to legislative to judicial, are changing very rapidly in all parts of the country.”

“And the opponents, many of them, are moving on,” said William Eskridge, a professor at Yale Law School. “We are not seeing the same kind of Armageddon rhetoric we saw in the 1990s.”

A federal judge in Michigan will hear testimony from experts in February before deciding whether to throw out the state’s constitutional ban on same-sex marriage. Two federal lawsuits in Virginia, including one being led by the same legal team that challenged California’s ban, are moving forward.

Eskridge disagrees with those who say the Supreme Court won’t act, predicting justices will get involved in the gay marriage dispute in the next year or two.

Different branches of the government are acting, he said — lawmakers, state courts, and federal courts — which could convince the justices to step in.

By “state rulings” they really mean “federal district court rulings”. You can add Texas to the list, though it’s just at the injunction stage, as was Utah. You want to see Armageddon rhetoric, just wait and see what happens if Judge Orlando Garcia puts the kibosh, however temporarily, on Texas’ Double Secret Illegal Anti-Gay Marriage constitutional amendment. I don’t think we’re going to be able to escape that being a campaign issue next year.

Speaking of campaign issues, Indiana may be going old school.

Dominated by Republicans and steeped in traditional values, Indiana seemed among the least likely places to become a battleground in the nation’s debate over same-sex marriage when the legislature overwhelmingly chose in 2011 to push forward a state constitutional amendment barring gay couples from marrying.

But in the two years since, the landscape has shifted as voters, lawmakers and courts began recognizing same-sex marriage in places like Maryland, Minnesota, New Jersey and New Mexico and as the United States Supreme Court declared parts of the federal Defense of Marriage Act unconstitutional. In just the past few days, a federal judge struck down a ban on same-sex marriage in Utah, home of the Mormon Church, and a federal appeals court rejected a request to halt the marriages on Tuesday. A federal judge in Ohio found that same-sex marriages should be recognized on death certificates.

So suddenly Indiana, where lawmakers in the coming weeks are expected to call for the second vote needed to put a ban before voters in the fall elections, is now in a far more tense, unpredictable and closely watched spot than anyone here had imagined — a test case in whether a state will impose new limits on same-sex marriage in this fast-moving political and legal environment.

“What happens in Indiana is critical,” said Brian Brown, president of the National Organization for Marriage, which opposes same-sex marriage. He and other opponents hope the outcome here will reveal that shifts in public sentiment over the last few years are not as widespread as some may think.

Supporters of same-sex marriage, however, are pouring money and effort into defeating the measure in Indiana, a possibility that seemed unthinkable not long ago but one that advocates now insist is conceivable. They say victory in a conservative place like Indiana would be a turning point in a fight that has largely been waged in more predictable, left-leaning states or in the courts. “That would send a clear message to opponents of marriage equality that it’s time to be done fighting this battle,” said Sarah Warbelow, state legislative director of the Human Rights Campaign.

As lawmakers prepare to return for a new legislative session in January, it is an especially awkward spot for Republicans, who dominate both chambers of the General Assembly. With an election year ahead and the risk of primaries in May, the issue is pitting socially conservative groups, who are urging a constitutional ban, against sometime allies in the state’s business community, who say a ban could cause Indiana economic harm.

Few Republicans now seem eager to talk about the issue, and some legislative aides said it was not entirely certain who would formally file the legislation in January.

Sure does suck when the wedge issue turns you into the fulcrum, doesn’t it? With all that’s happening you might think that Indiana Republicans would be wise to wait and see where the courts are going before pursuing legislation that may be pre-declared unconstitutional, but that would require their GOP primary voters to behave rationally. Good luck with that.

If it can happen in Utah…

Wow. Just, wow.

RedEquality

A federal judge struck down Utah’s same-sex marriage ban Friday in a decision that marks a drastic shift toward gay marriage in a conservative state where the Mormon church has long been against it.

The decision set off an immediate frenzy as the clerk in the state’s most populous county began issuing marriage licenses to gay couples while state officials took steps to appeal the ruling and halt the process.

Cheers erupted as the mayor of Salt Lake City led the state’s first gay wedding ceremony in an office building about three miles from the headquarters of the Mormon church. Dozens of other couples were lined up to get marriage licenses.

Deputy Salt Lake County Clerk Dahnelle Burton-Lee said the district attorney authorized her office to begin issuing the licenses but she couldn’t immediately say how many had been issued.

Just hours earlier, U.S. District Judge Robert J. Shelby issued a 53-page ruling saying the constitutional amendment Utah voters approved in 2004 violates gay and lesbian couples’ rights to due process and equal protection under the 14th Amendment. Shelby said the state failed to show that allowing same-sex marriages would affect opposite-sex marriages in any way.

“In the absence of such evidence, the State’s unsupported fears and speculations are insufficient to justify the State’s refusal to dignify the family relationships of its gay and lesbian citizens,” Shelby wrote.

[…]

The Utah ruling comes the same week New Mexico’s highest court legalized gay marriage after declaring it unconstitutional to deny marriage licenses to same-sex couples. A new law passed in Hawaii last month now allows gay couples to marry there.

If the ruling stands, Utah would become the 18th state to allow gay marriages, said Jon Davidson, director of Lambda Legal, which pursues litigation on LGBT issues nationwide. That’s up from six before the U.S. Supreme Court last summer struck down part of the Defense of Marriage Act that defined marriage as between a man and a woman. The District of Columbia also allows same-sex marriage.

“The momentum we are seeing is unprecedented in any human rights struggle,” Davidson said. “To have this fast a change in the law and in public opinion, is quite remarkable.”

Between this ruling and the one in New Mexico (more on that in a minute), I’d say equality opponents in Texas now truly have something to worry about. I still don’t think the Fifth Circuit will cooperate, but I’m less certain of that than I was two days ago. One reason for that is the way the judges in these cases made their rulings. For example, the Utah judge cited Justice Scalia’s dissent in the DOMA case in support of his ruling, and though the New Mexico case was decided in state court, the judge that wrote the opinion there clearly had one eye on SCOTUS.

The “responsible procreation” argument is utter bunk.

These days, conservatives shy away from arguing that gay people make bad parents, because they definitely, unquestionably, absolutely do not. Instead, the argument has subtly shifted to a new sophism: Marriage laws are meant to encourage “responsible procreation” by opposite-sex couples so that if the woman gets pregnant, the state won’t have an orphan on its hands. The implication, of course, is that gays play no part in this schema, and so it would be absurd to allow them into the marriage club.

Wrong, says Justice Edward L. Chávez, speaking for the court—in fact, New Mexico’s own marriage law makes no mention whatsoever of procreation, exposing the argument’s gesture toward tradition as the claptrap that it is. Instead, “the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples … [and] their children.” Plus, “fertility has never been a condition of marriage,” so heterosexual gay marriage opponents clearly aren’t even playing by their own rules. Finally, Chávez drives in the knife:

[W]e fail to see how forbidding same-gender marriages will result in the marriages of more opposite-gender couples for the purpose of procreating, or how authorizing same-gender marriages will result in the marriages of fewer opposite-gender couples for the purpose of procreating.

These points may seem obvious, but the “responsible procreation” argument has gained some ground since it made an appearance before the U.S. Supreme Court last March. Now a court has been fully briefed on the matter, and the verdict couldn’t be clearer: This argument is dead in the water.

The state of Utah made that “responsible procreation” argument as well, as I’m sure Texas will in February. But now there’s a lot more precedent for swatting down these hurtful, discriminatory laws down. That makes this upcoming hearing that much more important. To all the couples in Utah now getting married, congratulations and mazel tov! To everyone in Utah and elsewhere now freaking out that the end of civilization is nigh, relax. It totally isn’t, as you will soon see for yourself. It’s just more love and happiness and equality and justice, and last I checked those were all good things.

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.

Hearing set for gay marriage lawsuit

Mark your calendars.

RedEquality

A San Antonio judge Tuesday scheduled a hearing in February to consider temporarily blocking Texas’ same-sex marriage ban.

[…]

Federal District Judge Orlando Garcia set the Texas hearing for February 12 at 9:30 a.m. at the John H. Wood, Jr. United States Courthouse in San Antonio.

If the judge grants the injunction, the case will be eligible for immediate appeal to the U.S. Fifth Circuit of Appeals in New Orleans.

The plaintiffs include Cleopatra De Leon and Nicole Dimetman, a lesbian couple in Austin who were legally married in Massachusetts in 2009 and Vic Holmes and Mark Phariss of Plano.

A lawyer for the couple has said if the case gets to the Supreme Court, the two Texas couples would join plaintiffs in the other seven cases to challenge same-sex marriage bans.

Let me save everyone some time here. If Judge Garcia grants the injunction, the Fifth Circuit will come up with some bullshit reason to overturn it, and the Supreme Court will decline to hear the appeal. Thus, traditional marriage will remain sanctified until at least the end of the actual trial. The only difference will be the level of freakout among the “defenders” of traditional marriage, which will be way beyond 11 at that point. Panic will be sown, funds will be raised, hate will spew forth, you get the idea. But nothing will change just yet. It’s coming, you can bet on that, but it won’t happen on or around February 12, 2014. Texpatriate has more.

Will Texas wind up advancing the cause of same sex marriage?

Not voluntarily, of course, but it could happen.

RedEquality

One couple wants to get married, while the other just wants theirs recognized. A third couple wants a divorce, while the fourth wants theirs finalized. If all win their lawsuits, they could overturn the Texas ban on same-sex marriage.

A federal court in San Antonio will hear arguments next month from the attorneys representing the couples who want to live lawfully wedded. The Texas Supreme Court is considering the cases of the couples who want their out-of-state marriages legally dissolved.

They are challenging a constitutional ban on gay and lesbian marriages approved by 1.7 million Texas voters in 2005. At the time, only Massachusetts allowed gay marriage and conservatives hoped to pass a federal constitutional amendment defining marriage as between one man and one woman.

Eight years later, 16 states and the District of Columbia have legalized same-sex marriages, and New Mexico is allowing marriages pending a decision by that state’s Supreme Court later this year. The U.S. Supreme Court has also struck down the Defense of Marriage Act, saying federal authorities cannot deny the rights of couples legally married under state law.

That led to the first encroachment on Texas law, when the Texas National Guard agreed last week to begin processing applications for military benefits filed by same-sex couples. Initially, the guard told service members to apply for benefits at federal facilities because Texas law banned them from recognizing same-sex marriages.

[…]

The two Texas couples suing to overturn the state constitutional amendment have filed their case in federal court in San Antonio. They claim Texas is denying them their constitutional rights by either refusing to let them get married, or to recognize their marriage from another state.

Abbott has promised to defend the Texas law, as he would any other state law. But in a legal opinion declaring domestic partner benefits unconstitutional in April, he acknowledged that U.S. Supreme Court decisions on same-sex marriages could overturn Texas’ constitutional provision.

See here and here for the background. The referenced opinion by Abbott on domestic partner benefits, which cities have generally ignored or worked around, is here. I do think there’s some realization on the anti-equality side that they’re in a box, but they have no interest in doing anything about it. The fact that this bit of bigotry was enshrined in our state constitution pretty much guarantees that the only way to undo it will be via the courthouse, since there may never be a two-thirds majority of the Legislature to pass a joint resolution repealing what was passed in 2005. With all the activity in the courts these days, that could happen sooner than we think.

Another reason why marriage equality matters

This was bad.

RedEquality

A graduate anthropology student, the wife of an active duty Air Force captain, said the University of Texas at San Antonio denied her an in-state tuition waiver — a decision she thinks came about because she’s married to another woman.

The student said she applied for the cheaper tuition by filling out a form that refers to the active duty member as either a spouse or a parent, and had it signed by her wife’s commander.

There was a problem with it, she was told a few weeks later. Then came a Sept. 27 email from a UTSA admissions supervisor, she said.

A copy she provided said simply, “We regret to inform you that per our Legal Department we are unable to process your in-state tuition waiver. Your tuition will remain out-state.”

The issue is complex and still under review, UTSA spokesman Joe Izbrand said in an email Thursday.

On Friday, UTSA reversed its decision. That’s good, but it’s not adequate.

State and federal laws grant in-state tuition at public institutions to the spouses and dependents of military personnel. But federal law now defines spouses differently from the Texas Constitution in the wake of a U.S. Supreme Court decision in June that rejected parts of the Defense of Marriage Act.

The student, 28, has asked not to be identified for fear that publicity would affect her work as a midwife and the career of her wife, 29, stationed at Joint Base San Antonio-Lackland.

“After carefully reviewing this matter, it has been determined that the student will be charged resident tuition,” UTSA spokesman Joe Izbrand said in an email. “Our university is enriched through inclusiveness and diversity. We honor the service of our military personnel and recognize the sacrifices made by their families.”

The student said Friday that the university awarded her a $1,000 merit-based graduate anthropology scholarship, which qualified her for resident tuition.

[…]

While Friday’s reversal “fixed my problem,” she said, “it didn’t fix the problem” with the policy.

“I get to be excited that I don’t have a financial burden, but the policy hasn’t changed,” the student said. “If anybody else applies in the future, they are not necessarily protected.”

Legal experts said this week the conflict between state and federal definitions of marriage would likely produce more such cases, likely unable to be resolved except by eventual litigation.

Izbrand’s statement said, “Because of the complexities involved and the potential conflict between the federal statute and state law, the university will seek additional legal guidance on this issue.”

I’m sure we can all guess what an opinion from AG Greg Abbott will look like. Kudos to UTSA for solving this one student’s problem, but she is quite correct to say that it is not an actual solution since it does nothing for the next person in her shoes. The underlying problem is the disconnect between federal law and our unjust, backward, discriminatory state law. This disconnect is causing an increasing number of problems with divorce cases and benefits for military spouses, and I’m sure that list will keep growing. The state’s response, as articulated by Greg Abbott, is that all these people should just leave their marriage licenses at the border and forget about all the rights and economic benefits that come with them because the state of Texas has closed its eyes and stuck its fingers in its ears and is busy chanting “LA LA LA I CAN’T HEAR YOU”. The possibility that this well-thought out legal strategy might cause actual harm to real people is of no concern to Greg Abbott.

Well, that’s what needs to change first, and the person in the best position to make that happen in Wendy Davis. Put Greg Abbott on the spot and make him explain why he favors harming military families like this. Point out, over and over again, that he is responsible for harming them. Then tie it to his smug utterance about how all he does every day is “wake up, sue the Obama administration, and go home” and hammer home the fact that every one of his self-indulgent exercises in litigation has been about pursuing narrow partisan interests at the expense of everyday, hard-working, tax-paying Texans. Press on from there to showcase how increasingly out of touch the state and Greg Abbott are with public opinion – even ExxonMobil, in response to the change in federal policy, will now offer domestic partner benefits to its employees, for crying out loud – and how being out of touch like this will cost Texas in the long run as people and businesses will stop wanting to locate here. Just as the moment was right for Davis to run for Governor in the first place, the time is right to turn the old culture war arguments around and take the fight to turf we used to run away from. It’s on Wendy Davis and anyone who joins her on the ticket to recognize this opportunity and grab it. This is a good start, but we’ll need more than that. It’s there for the taking if we want it.

Lambda Legal challenges Texas Military Forces on benefits

Good.

An LGBT legal group has given the Texas National Guard 10 days to respond to its request that it begin enrolling same-sex spouses of service members into the federal Defense Enrollment Eligibility Reporting System (DEERS) at its facilities. DEERS is the system used to process military benefits, including providing service members and their families with the military ID card that gives them access to military facilities and other services.

The move likely is the final step before the legal group, Lambda Legal, would go to court seeking to force the Texas National Guard to end the differential treatment.

[…]

On Friday, however, Lambda Legal — an LGBT legal advocacy group — sent a letter to Major General John F. Nichols, the man responsible for running the Texas National Guard, letting Nichols know the group is representing Alicia Butler, the wife of 1st Lt. Judith Chedville — a member of the Army National Guard — and asking that the Texas Military Forces reconsider the decision not to process Butler’s request to be entered into the DEERS system.

Specifically, the lawyer, Paul D. Castillo, wrote:

The Texas Military Forces apparently takes the position that registering the same-sex spouse of a service member in the federal Defense Enrollment Eligibility Reporting System (“DEERS”) and issuing a spousal ID, in fulfillment of the federal government’s legal obligation to provide federal spousal and family benefits to same-sex spouses, somehow would violate provisions of the Texas Constitution and Statutes that purport to deny State recognition to the out-of-state marriages of same-sex couples. This position is particularly dubious given that the “Federal Government provides virtually all of the funding, the material, and the leadership for the state Guard units” … including, specifically, DEERS and federal benefit administration for commissioned officers located in Texas.

Citing the Supreme Court’s June decision striking down part of the Defense of Marriage Act, he noted, “When voluntarily implementing federally-funded benefits programs on behalf of the U.S. Army National Guard, Texas may not violate the federal civil rights of eligible spouses of military personnel. The discriminatory treatment of lesbian and gay spouses of service members, including those in the Army National Guard in Texas, is illegal.”

See here and here for the background. Lambda Legal’s press release is here, and I think this sums it all up:

“This is just so silly and demeaning,” Butler said. “What they’re saying in effect is, ‘well, we don’t want to give you these benefits, but we have to, so we’re going to make it as inconvenient as possible.’ It’s incredibly petty, and does impose a real hardship that other couples don’t have to bear.”

“This stigmatizing and punitive policy conflicts with DoD policy to treat all military spouses equally and also seems to contradict the governing philosophy of Texas Military Forces to act in the best interests of all service members and families,” Castillo added. “We urge General Nichols to instruct his staff to stop this discriminatory behavior and enroll all eligible spouses of service members for federal benefits.”

Given that nearly every other state, including quite a few that also ban gay marriage, have complied with this directive, it’s hard to see how this could be legal. But then TXMF is taking its cues from Greg Abbott and his see-no-gays strategy, so it’s not exactly a surprise. I’m kind of hoping Lambda has to take TXMF to court – I figure every time Abbott loses a case, an angel gets his wings. But hey, as long as the good guys win in the end, I’ll be happy. See the full letter from Lambda Legal for more.

Texas Military Forces asks for Abbott’s opinion on same-sex benefits

Like we don’t know what he’s going to say.

Still not Greg Abbott

Here’s the dilemma: The Department of Defense, based on a recent U.S. Supreme Court decision, has ordered certain benefits be extended to same-sex, legally married couples in the military.

But the Texas Military Forces — aka TXFM and the Texas national guard — is a state agency and the Texas Constitution has a provision that same-sex marriages cannot be recognized.

So the adjutant general’s office has asked the attorney general to help sort out whether this is a military chain-of-command order, or is a state office obligated to follow Texas law?

“Texas law specifically prohibits a state agency or political subdivision from recognizing or validating a same-sex marriage,” the request for a legal opinion states. But the national guard personnel are under state control only until they are called up for active duty, and then they answer to the federal government.

“What action, if any, can the TXMF take in order to fulfill the DoD policy of extending spousal and dependant benefits to same-sex spouses without violating the Texas Constitution or Texas state law?” the request for opinion asks.

I’m trying to think of some analogous questions to asking Greg Abbott if the state of Texas needs to follow federal directives on same-sex benefits for military personnel. “Should I rob this bank? I don’t know, so I’ll go ask Willie Sutton for his opinion.”

Or how about “Should I punch this guy in the face? I don’t know, so I’ll go ask Mark Trail for his opinion.”

Maybe “Should I do unspeakable things to this foam finger? I don’t know, so I’ll go ask Miley Cyrus for her opinion.”

Basically, the difference between those examples and asking Greg Abbott if you have to comply with an order to treat same-sex couples equally is how long you have to wait to get the answer you know you’re going to get. If you’re one of the people that stands to be adversely affected by Abbott’s opinion, the Atlantic Wire has a map pointing out the federal military bases in Texas, so at least you’ll know how far you’ll have to travel to claim the benefits that are rightfully and legally yours. A group of Texas legislators – all Democrats, I’m sure you’ll be surprised to hear – sent a letter to TXMF urging them to forget about asking Abbott for his predictable opinion and just go ahead and follow the federal directive already. The Trib has more.

No federal benefits for you, soldier!

We sure do love the troops here in Texas, don’t we?

RedEquality

The Texas National Guard refused to process requests from same-sex couples for benefits on Tuesday despite a Pentagon directive to do so, while Mississippi won’t issue applications from state-owned offices. Both states cited their respective bans on gay marriage.

Tuesday was the first working day that gays in the military could apply for benefits after the Pentagon announced it would recognize same-sex marriages. The Department of Defense had announced that it would recognize same-sex marriages performed in states where they are legal following the U.S. Supreme Court decision that threw out parts of the Defense of Marriage Act.

Texas and Mississippi appeared to be the only two states limiting how and where same-sex spouses of National Guard members could register for identification cards and benefits, according to an Associated Press tally. Officials in 13 other states that also ban gay marriage — including Arizona, Oklahoma, Florida, Michigan and Georgia — said Tuesday that they will follow federal law and process all couples applying for benefits the same.

Maj. Gen. John Nichols, the commanding general of Texas Military Forces, wrote to service members in a letter obtained by the AP that because the Texas Constitution defines marriage as between a man and a woman, his state agency couldn’t process applications from gay and lesbian couples. But he said the Texas National Guard, Texas Air Guard and Texas State Guard would not deny anyone benefits.

Nichols wrote that his agency, which oversees Texas’ National Guard units, “remains committed to ensuring its military personnel and their families receive the benefits to which they are entitled. As such, we encourage anyone affected by this issue to enroll for benefits at a federal installation.” He then listed 22 bases operated by the Department of Defense in Texas where service members could enroll their families.

A spokesman for Texas Gov. Rick Perry said the Texas Military Forces, as a state agency, must obey state law.

[…]

Pentagon officials said Texas appeared to be the only state with a total ban on processing applications from gay and lesbian couples. Spokesman Lt. Cmdr. Nate Christensen said federal officials will process all applications from same-sex couples with a marriage certificate from a state where it is legal.

Alicia Butler said she was turned away from the Texas Military Forces headquarters in Austin early Tuesday and advised to get her ID card at Fort Hood, an Army post 90 miles away. She married her spouse — an Iraq war veteran — in California in 2009, and they have a 5-month-old child.

“It’s so petty. It’s not like it’s going to stop us from registering or stop us from marrying. It’s a pointed way of saying, ‘We don’t like you,” Butler said.

She said she was concerned the state would withhold survivor benefits if something happened to her wife while she was activated on state duty rather than on federal deployment.

“People say, ‘Why don’t you live somewhere else?'” she said. “Well, my ancestors came here five generations ago to get away from this kind of stuff, and this is my state and I’m not going to go away.”

“We don’t like you” is one of the things that this says. Here’s more in the Chron.

The health care, housing and other benefits are retro­active to June 26, when the U.S. Supreme Court declared the Defense of Marriage Act unconstitutional.

Texas Military Forces said same-sex spouses of members of the Texas Army National Guard and Texas Air National Guard can enroll for federal benefits at 20 U.S. military sites statewide.

Brent Boller, spokesman for Joint Base San Antonio, confirmed that same-sex couples can apply at Randolph, Lackland and Fort Sam Houston. Their marriage has to have been recognized in the District of Columbia or one of 13 states that allow same-sex marriage.

“All federal installations in Texas are issuing those,” Boller said, referring to U.S. military identification cards and the federal benefits system.

Just not the state facilities, like Camp Mabry in Austin. I don’t know how many of those there are or how big an obstacle that is for affected veterans, but that’s beside the point. Other states that ban gay marriage are capable of complying with this federal directive, just not Texas. It’s petty and small-minded, but also one more piece of evidence for the lawsuit mill. I can’t help but think that the more obstructionist Texas is, the closer it is to getting its ass handed to it in federal court. That day can’t get here soon enough. The Dallas Voice and Texpatriate have more.

The DOMA ruling and the workplace

The SCOTUS ruling on DOMA will have an effect in Texas, if not now then eventually, we just don’t know exactly what that effect will be yet.

RedEquality

Companies may assume that the recent Supreme Court case rejecting a key part of the Defense of Marriage Act doesn’t affect them because Texas doesn’t recognize same-sex marriages.

But they ignore the ruling at their peril, according to some employment lawyers who have been examining whether the ruling that struck down the federal ban on recognizing same-sex marriages will entitle same-sex spouses to pension benefits, health care insurance and family leave coverage.

“No one really knows,” said Joe Gagnon, an employment lawyer with Fisher & Phillips in Houston, who represents management clients. But Gagnon argues that employers eventually could be on the losing end of a court battle if they exclude same-sex spouses as beneficiaries and plan participants.

It’s always hard to figure out how a court ruling will play out. But the ruling looks thorny for employers, especially those that have multistate operations in states that recognize same-sex marriages and ones that don’t.

Or what if a company transfers an employee from California – which recognizes same-sex marriage – to its operations in Texas? Will the employee’s same-sex spouse have the same benefit privileges in Texas as in California?

“We don’t know the answer yet,” said Michael A. Abbott, an employee benefits lawyer with Gardere in Houston.

We don’t know the answer, but sooner or later these questions are going to be litigated. If you’re legally married in one of the states that allows it and then you lose some kind of work-related benefit because you and your spouse moved or were transferred to Texas, you’re not going to accept that. It’s just a matter of time before there’s a conflict. It may be that the inevitable lawsuit gets filed by someone who doesn’t want his company recognizing accommodating same sex spouses in their retirement benefits. Either way, sooner or later something’s got to give.

What does the DOMA decision mean for Texas?

Last week, the day after the disappointing SCOTUS ruling on the Voting Rights Act, we got a much more heartening ruling on DOMA, declaring it to be unconstitutional. However, not all of DOMA was struck down.

In a landmark Supreme Court decision on Wednesday, justices ruled that Section 3 of the 1996 law, which denies federal benefits to same-sex couples, is unconstitutional. As Justice Anthony Kennedy argued, “DOMA writes inequality into the entire United States Code.”

But other parts of the law itself are still in effect, including Section 2. This part of the law allows states where same-sex marriage is either illegal or unrecognized not to honor the legal unions from other states around the country. Say a same-sex couple gets married in Iowa; their marriage does not have to be recognized in Alabama. This could become an issue if a couple needs to move to a different state.

That includes Texas, of course. The fact that same-sex marriage remains illegal in Texas was noted by the Chronicle:

“Individual states will continue to enforce their laws until challenged, but we see those challenges coming,” said Houston appellate lawyer Allie Levy. “We will have to go state by state, but we might have much better weapons than we had before.”

Local blogger Michael Coppens believes Wednesday’s rulings make the building momentum for full marriage equality unstoppable.

“For Texas, it doesn’t have a huge impact immediately,” said Coppens, who is gay. “We still have a long way to go. Congratulations to California – they’ve got it and we don’t. But fundamentally it turns the tide. I don’t think the national movement for same-sex marriage can be stopped. With the general public becoming more supportive, and now this ruling taking place, you have the foundation for the anti-gay marriage laws we have across the country going away.”

And by the Dallas Morning News.

“Texas still bars couples from same-sex marriage, and this decision doesn’t change that,” said Cary Franklin, a constitutional law professor at the University of Texas at Austin.

Texas Attorney General Greg Abbott’s office declined to comment on the effect of the rulings.

One Democratic lawmaker, Fort Worth state Rep. Lon Burnam, immediately vowed to reintroduce legislation to legalize same-gender marriages in Texas. The state became the 19th to adopt a constitutional ban of same-sex unions in 2005.

“It’s a perfect opportunity to refile my marriage-equality bill, and that’s the first thing I will do on Monday,” said Burnam, who filed a similar bill in February that died in committee.

The bill cannot advance in the Texas Legislature’s special session unless Gov. Rick Perry, an ardent opponent of same-sex marriage, adds it to the agenda.

The Supreme Court ruled Wednesday that married same-sex couples were entitled to federal benefits and, by declining to decide a case from California, effectively allowed same-sex marriages there.

UT’s Franklin said the high court’s rulings may inspire lawsuits, anti-discrimination policies and scrutiny of same-sex marriage bans nationwide.

“People in Texas didn’t immediately gain any rights, but the court issued a decision that talked about the importance of equality for couples,” she said.

RedEquality

I noted Rep. Burnam’s bill, which will not see the light of day in the special session but which is still laudatory, over the weekend. There’s no question that right-thinking legislators need to mount a full assault on Texas’ awful Double Secret Illegal anti-gay marriage amendment, in the 2014 campaigns and in the 2015 legislative session – and beyond, as will be necessary – but as I have said before, the fact that it is in the constitution makes this an extra heavy lift. I continue to believe that the death of this atrocity will come from a courtroom and not the Lege, but that doesn’t mean we shouldn’t keep trying to kill it in the Lege. It’s still the right thing to do, and hey, you never know. Attitudes have shifted so quickly on the national level, I may be wrong about how long it will take to shift sufficiently here to make a legislative fix viable. Nobody would have thought we’d be where we are now after that stupid thing was ratified in 2005.

There is another avenue available to apply pressure on this, and that’s in the cities and school districts. They need to have full, up to date non-discrimination policies, and they need to offer domestic partner benefits, even if they can’t call them “domestic partner benefits”. Make as much of Texas as gay-friendly as possible within the confines of the current law, and get as many people as possible used to the idea that this is the way things are now. The entities that already have such policies are keeping them in the face of hostility from AG Abbott and some small-minded legislators; they could use some company. If that leads to lawsuits from the forces of backwardness, I say bring it. I don’t fear this being fought out in court.

What that means for those of us who support equality is that in addition to supporting like-minded candidates for state office, we need to support them for local offices, too. Where do your Mayors and Council members and school board trustees stand on this? We’re behind the curve here in Houston thanks to a 2001 charter referendum that banned the city from offering domestic partner benefits. We can’t have a charter amendment referendum until either November 2014 or May 2015 (because we passed amendments last November and can’t put any others on a ballot until two calendar years after that date), and it’s time to start working towards that. Mayor Annise Parker has applauded the SCOTUS DOMA ruling – as far as I can tell by looking at their Facebook pages, she is the only one of the four Mayoral candidates to have commented on this. That’s a good start, but she and all other candidates for Houston city offices need to be pushed to take action on undoing the ban on offering domestic partner benefits. HISD Trustee candidates need to be pushed on offering such benefits, too, if only to get the stench of the 2011 election out of everyone’s mouths. The same is true for other cities and other school boards. I mean, the Supreme Court has just unequivocally acknowledged that this kind of discrimination is wrong. What are we waiting for? BOR, CultureMap, and the Trib have more.

UPDATE: Kudos to Texpatriate for getting a statement out of Eric Dick, and trying to get one out of Ben Hall.