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DOMA

Burnam to re-file marriage equality bill for Special Session 2

From the inbox:

Upon the announcement [Wednesday] of a second special legislative session by Governor Rick Perry, as well as the Supreme Court decision on the Defense of Marriage Act, State Representative Lon Burnam (D-Fort Worth) today announced his intention to re-file his Marriage Equality bill from the 83rd regular Legislative Session, HB 1300.

“The Supreme Court found today that the federal government acted to ‘impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.’ I can assure you the Texas Legislature did the same. As such, it is time to renounce our homophobic state laws and usher in marriage equality in Texas,” said Rep. Burnam.

Governor Perry announced his intention on Wednesday to call a special session to deal with all unfinished business from the first session, including the abortion bill killed by Senator Wendy Davis (D-Fort Worth) in her historic filibuster. However, in the first special session, Governor Perry had also added several issues throughout the session.

“I call on Governor Perry to add marriage equality to the special session call,” said Rep. Burnam. “Clearly granting equal rights to all Texans is more urgent than imposing restrictions on women’s health and liberty based on junk science and sham medical research.”

“It is the shame of our state that we continually have to wait for a federal judge to make us do the right thing. It happened with segregated schools, segregated parks and segregated housing. Let’s not let it happen with segregated marriage rights.”

In the 83rd Legislative Session, Rep. Burnam had introduced but had failed to even get a hearing for the bill. The bill is not a constitutional amendment, but rather amends key parts of Texas state law to extend parental, property and other legal rights of marriage to same-sex couples.

Here’s HB1300. This is absolutely the right thing to do, and I salute Rep. Burnam for doing it. That said, Rick Perry will host a fundraiser for Wendy Davis before he’ll put this on the special session agenda. Democrats did a good job introducing marriage equality bills during the regular session, and I expect them to be back in a big way on this in 2015, but regardless of any Supreme Court decisions, this is unfortunately not going to happen now.

The fight over domestic partnership benefits is just beginning

Stuff like this was inevitable.

On the right side of history

Leaders of two Christian groups want City Council to stop extending benefits to domestic partners of city employees, now that the state attorney general has called the benefits unconstitutional.

City officials reject the demand, at least for now.

Pastor Gerald Ripley of Voices for Marriage and Philip Sevilla of Texas Leadership Coalition made the request Wednesday with backing from a few sign-carrying supporters at City Hall.

Attorney General Greg Abbott issued an opinion April 29 stating cities that offer marriage benefits to employees’ same-sex partners are violating the Texas Constitution. San Antonio has done so since 2011, at an annual cost then estimated at $300,000.

Ripley and Sevilla also voiced opposition to Councilman Diego Bernal’s proposal to update the city’s anti-discrimination policies by adding protections for sexual orientation and gender identity. Further, Ripley and Sevilla oppose funding a city liaison to the gay community. The city’s Governance Committee takes up Bernal’s proposals on Tuesday.

Ripley demanded the domestic partner benefits policy be reversed by June 30. “Lawsuits will be filed if necessary,” he said.

“We cannot allow this in San Antonio. We are not San Francisco,” Sevilla said.

City attorney Mike Bernard said the city won’t change its policy while the nation’s highest court weighs two cases that could impact Abbott’s opinion. Rulings could come in a few weeks, he said.
“We’re not going to do anything until the U.S. Supreme Court rules,” he said Wednesday.

Abbott issued his opinion back in April. He stated in his opinion that Texas’ double secret illegal anti-gay marriage constitutional amendment didn’t necessarily bar cities and ISDs and what have you from offering benefits to the unmarried partners of employees, they just couldn’t do it in a way that made it look like they were equating those not-married relationships with marriage. Perhaps because of that wiggle room, or just perhaps because they thought Abbott was being more political than analytical, the cities that have offered domestic partnership benefits have basically ignored Abbott’s opinion so far. On top of that, the voters in Pflugerville re-elected the two trustees of their school board that supported its domestic partnership policy that led to Abbott’s opinion, defeating two candidates that had targeted them over this. One way or another this will ultimately be decided in a court, whether or not SCOTUS upholds or throws out DOMA. The next step will be when one of the anti-equality groups finds a plaintiff to file a suit against their city or ISD. Stay tuned.

Cities generally ignore Abbott’s domestic partnership opinion

Good for them.

On the right side of history

Attorney General Greg Abbott’s opinion [last] week, while not binding, is the latest of several challenges to same-sex benefits across the country that so far have had mixed results in the courts and prompted changes after officials in other states took action. In Texas, local governments from El Paso to San Antonio and north to Dallas County have their legal departments reviewing their benefits plans but don’t appear ready to budge yet – noting that their policies don’t address issues such as marriage or gender.

“It’s a benefits package that top companies in the area offer to their employees,” said Clay Jenkins, the top administrative official for Dallas County, which has a lesbian sheriff. “It is not only the right thing to do but also allows us to attract top talent so we can continue to have success.”

The cities of Austin, El Paso and Fort Worth already offer some benefits to domestic partners, while Pflugerville, outside Austin, became the state’s first school district to extend similar benefits.

“If our policy violates the law, we’ll change it. But I’d conclude we are not doing that,” said Samuel T. Biscoe, Travis County’s top administrative official. “Legally, we are in good shape.”

Fort Worth spokesman Bill Begley said the city does not anticipate any problems to come from Abbott’s opinion. “Our domestic partner policy does not say anything about marriage or gender.”

See here for the background. As noted, Abbott’s opinion is not legally binding, it’s his opinion as to how a judge would rule. Someone will have to sue in order to get a result that does have the force of law. At least one such lawsuit is in the works in El Paso, by one of the leading homophobes there. Of course, it’s possible that by the time this gets to the point of a legal decision here we may have an opinion from the Supreme Court on the constitutionality of DOMA, and who knows how that could scramble things. This ain’t over yet, not by a longshot.

Abbott opines against domestic partnership benefits

This should not come as a surprise to anyone.

On the right side of history

The state Constitution prohibits government entities from recognizing domestic partnerships and offering insurance benefits to those couples, Texas Attorney General Greg Abbott wrote in an opinion on Monday.

In the nonbinding opinion, Abbott determined that local jurisdictions that offer such benefits “have created and recognized something” — domestic partnerships — “not established by Texas law.”

“A court is likely to conclude that the domestic partnership legal status about which you inquire is ‘similar to marriage’ and therefore barred” by the state Constitution, he wrote.

The opinion was a response to a question asked by Sen. Dan Patrick, R-Houston, who had raised concerns about the Pflugerville school district, as well as the cities of El Paso, Austin and Fort Worth, extending such benefits to domestic partners.

“The voters of the state of Texas decided overwhelmingly that marriage is between one man and one woman in 2005,” Patrick said in a statement responding to Abbott’s opinion. “This opinion clearly outlines that cities, counties and school districts cannot subvert the will of Texans.”

You can read the opinion here. I called this back in November when Patrick asked for the opinion, not that this is anything to be proud of. A few thoughts:

– Remember back in 2005 when those of us who opposed that awful anti-gay marriage amendment pointed out that it would do a lot more than merely make gay marriage extra super illegal (since it was already illegal in Texas)? This is the sort of thing we were talking about. Legislative Democrats that still haven’t gotten on board the marriage equality bus, this is especially on you.

– Note that since the language of Abbott’s opinion is all about how the amendment banned anything “similar to marriage” and how that encompasses the term “domestic partner”, this isn’t strictly about LGBT folks. If you’re shacking up with your opposite sex partner but have chosen not to tie the knot, you’re SOL if you work for a non-federal government entity in Texas.

– Of course, if you are one half of a straight unmarried couple, you can always tie the knot to get your hands on health insurance. Gay people can get married now, too, but the state of Texas does not recognize same-sex marriages performed in other states. I’m not a lawyer, but it seems to me that this would be the seed of that law’s downfall in the event that SCOTUS throws out DOMA. If we’re lucky, this will turn out to be a massive and petty waste of time.

– If you read the opinion, Abbott tries to play a little jiujitsu by claiming that the intent of the law was not to bar cities from offering same sex partners insurance benefits, just from recognizing the status of a marriage-like thing such as a domestic partnership:

Representative Chisum’s statement simply explains that article I, section 32 does not, in his view, address whether a political subdivision may provide health benefits to the unmarried partner of an employee. The constitutional provision does, however, explicitly prohibit a political subdivision from creating or recognizing a legal status identical or similar to marriage. The political subdivisions you ask about have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. Further, they have recognized that status by making it the sole basis on which health benefits may be conferred on the domestic partners of employees.

For extra credit, please detail a scenario in which an insurance company would offer a benefit for the unmarried partner of an employee that didn’t require some kind of legal affirmation of a relationship between the applicant and the employee that would also be constitutionally acceptable to Greg Abbott, Dan Patrick, and other deep thinkers such as Drew Springer.

– This absolutely, positively has to be a campaign issue in 2014. I can’t emphasize this enough. People may remain largely opposed to gay marriage in Texas, but by a two to one margin they approve of either gay marriage or civil unions. I’m willing to bet a decent majority will not like this opinion. More to the point, this is an issue that Democrats can rally around, since it illustrates in unmistakeable terms a key difference between the two parties. Even better, this can be hung around Abbott’s neck. Sure, he’s only taking his best guess at how a court would decide the issue, but it’s also unambiguously the same as his own position. Let him explain why it’s technically inaccurate to say that Greg Abbott outlawed domestic partnership benefits in Texas. This goes for Drew Springer and all of his coauthors, too. This is a big deal. We need to treat it like one.

That’s all I’ve got for now, but let’s keep our eyes open for the reactions to this. Trail Blazers, Hair Balls, and BOR have more.

UPDATE: Equality Texas goes glass-half-full on the opinion:

It means cities, counties, and school districts seeking to remain competitive with private business can offer employee benefit programs that provide health and other benefits to unmarried household members if the eligibility criteria are properly structured.

However, eligibility should not use the term “domestic partner”, or be based upon proving the existence of a “domestic partnership”, or use criteria usually associated with marriage (like current marital status, or related by a certain degree of consanguinity).

It means political subdivisions can offer employee benefit programs to unmarried household members if their eligibility criteria don’t look like marriage, or create something that resembles marriage.

I appreciate their optimism, and I hope they’re right. But I still think that the challenge of fashioning such a thing will be too daunting. I’ll be glad to be proven wrong.

UPDATE: The cities of Austin and San Antonio are not quite ready to accept Abbott’s opinion.

The remaining holdouts on marriage equality

Last week, we talked about the Democratic members of the Legislature that had voted for the anti-gay marriage Constitutional amendment of 2005, and where they stood now. Along those lines, The Hill checks on the situation in Congress.

Eleven House Democrats are on record as opposing gay marriage, even as support within their party for the issue builds.

Another nine haven’t taken definitive positions in support of or against gay marriage.

[…]

Nine Democrats who voted in 2011 to uphold the Defense of Marriage Act that denies federal benefits to gay couples haven’t publicly changed their positions: Reps. John Barrow (Ga.), Sanford Bishop (Ga.), Henry Cuellar (Texas), Gene Green (Texas), Dan Lipinski (Ill.), Jim Matheson (Utah), Mike McIntyre (N.C.), Collin Peterson (Minn.) and Nick Rahall (W.Va.).

Another two freshmen Democrats voiced opposition to same-sex marriage during their 2012 campaigns: Reps. Bill Enyart (Ill.) and Pete Gallego (Texas).

The nine Democrats who haven’t taken a definitive position on gay marriage are Reps. Jim Costa (Calif.), Ron Kind (Wis.), Cedric Richmond (La.), Kurt Schrader (Ore.), David Scott (Ga.), Terry Sewell (Ala.), Bennie Thompson (Miss.), Pete Visclosky (Ind.) and freshman Filemon Vela (Texas).

Five of these Democrats hail from districts that voted for GOP presidential nominee Mitt Romney in 2012, and they are perennial GOP targets: Barrow, Matheson, McIntyre, Peterson and Rahall. Obama narrowly carried Enyart’s district.

[…]

The Hill contacted all 20 offices this week as the Supreme Court considered two gay marriage cases and several Democratic senators made headlines by announcing their support for gay marriage.

Matheson, Rahall, and Gallego’s offices said they continue to oppose legalizing gay marriage.

Green said the choice should be left to the individual states but didn’t address DOMA, which he’d voted to uphold, or say whether he personally supported gay marriage.

It should be noted that Romney carried Rep. Gallego’s district, which makes his stance unsurprising, but still disappointing. I discussed the issue with Rep. Green when I interviewed him last year; he said he was thinking about it but “wasn’t there yet”. As for Rep. Cuellar, well, this is another example of why so many of us are regularly frustrated by him. There’s no political reason for him to maintain this stance. I hope someone follows up with Rep. Vela on this – his lightly-used official Facebook page is here if you’re interested – because you don’t get to not have an answer. Favoring marriage equality is now the almost unanimous position among Democratic Senators, some of whom represent pretty red states. My sincere advice to Reps. Gallego, Green, Cuellar, and Vela is not to be the last Democrat to get right on this. History only waits so long. Link via Texpatriate.

Getting on the same page on marriage equality

Harold Cook asks a darned good question.

As SCOTUS hears arguments on marriage equality this week, it reminds me of when the Texas Legislature voted for the state constitutional amendment prohibiting gay marriage in Texas eight years ago. Texas voters subsequently approved the measure that November by a 3-to-1 margin. I wonder if any of the legislators voting on that piece of crap would vote differently today?

I am particularly reminded of the Democrats who voted yes (or Present, Not Voting). Some of the statements of vote (scroll to the bottom) are surprising and disappointing, including those made by various House Democrats, two of whom are now in the US Congress and several of whom remain in the legislature or otherwise in the public eye. (and one of whom was, ironically, drummed out of office in part for gay baiting).

In the Senate (in which it was debated with zero votes to spare, while two Democrats voted yes):

HJR 6 was adopted by the following vote: Yeas 21, Nays 9.

Yeas: Armbrister, Averitt, Brimer, Deuell, Duncan, Eltife, Estes, Fraser, Harris, Jackson, Janek, Lindsay, Lucio, Madla, Nelson, Ogden, Seliger, Shapiro, Staples, Wentworth, Williams.

Nays: Barrientos, Ellis, Gallegos, Hinojosa, Shapleigh, VanideiPutte, West, Whitmire, Zaffirini.

And in the House:

The roll of those voting yea was again called and the verified vote resulted, as follows (Record 396): 101 Yeas, 29 Nays, 8 Present, not voting.

Yeas — Mr. Speaker(C); Allen, R.; Anderson; Baxter; Berman; Blake; Bohac; Bonnen; Branch; Brown, B.; Brown, F.; Callegari; Campbell; Casteel; Chisum; Cook, B.; Cook, R.; Corte; Crabb; Crownover; Davis, J.; Dawson; Delisi; Denny; Driver; Edwards; Eissler; Elkins; Escobar; Farabee; Flynn; Frost; Gattis; Geren; Gonzalez Toureilles; Goodman; Goolsby; Griggs; Grusendorf; Guillen; Haggerty; Hamilton; Hamric; Hardcastle; Harper-Brown; Hartnett; Hegar; Hilderbran; Hill; Homer; Hope; Hopson; Howard; Hughes; Hunter; Hupp; Isett; Jackson; Jones, D.; Keel; Keffer, B.; Keffer, J.; King, P.; King, T.; Kolkhorst; Krusee; Kuempel; Laney; Laubenberg; Madden; McCall; McReynolds; Merritt; Miller; Morrison; Mowery; Olivo; Orr; Otto; Paxton; Phillips; Pickett; Quintanilla; Raymond; Reyna; Riddle; Ritter; Rose; Seaman; Smith, T.; Smith, W.; Solomons; Straus; Swinford; Talton; Taylor; Truitt; Van Arsdale; West; Woolley; Zedler.

Nays — Allen, A.; Alonzo; Anchia; Bailey; Burnam; Coleman; Davis, Y.; Deshotel; Dukes; Dunnam; Dutton; Farrar; Gallego; Herrero; Hochberg; Hodge; Martinez Fischer; McClendon; Moreno, J.; Moreno, P.; Naishtat; Noriega, M.; Puente; Rodriguez; Strama; Thompson; Veasey; Villarreal; Vo.

Present, not voting — Castro; Chavez; Giddings; Gonzales; Jones, J.; Leibowitz; Turner; Wong.

Absent, Excused — Eiland; Luna; Menendez; Nixon; Oliveira; Pitts; Smithee.

Absent — Flores; Martinez; Pena; Solis; Uresti.

I’ve helpfully highlighted all of the yea-voting Democrats in bold. All of the non-voters were Democrats except for Martha Wong, Joe Nixon, Jim Pitts, and John Smithee. You should click over to read some of the statements made by the non-voters, several of whom would have voted Yes and several of whom had less-than-stellar reasons for voting No. The good news is that there’s only a handful of yea-voting Dems left in the Lege – Eddie Lucio in the Senate; Ryan Guillen, Tracy King, Joe Pickett, and Richard Raymond in the House. Allan Ritter is still in the House but switched to the GOP in 2011.

I wanted to know what these legislators thought about marriage equality today. I sent the following emails to their communications directors and/or chiefs of staff:

As you know, the Supreme Court is hearing two cases this week that have to do with marriage equality. Eight years ago, the Texas Legislature approved HJR6, which was “a constitutional amendment providing that marriage in this state consists only of the union of one man and one woman”, which was subsequently ratified by the voters. Recent polling makes it clear that as with the rest of the country, Texans’ attitudes towards marriage equality are evolving, and Texans today are more favorably inclined to the idea than ever before. Democrats in particular are quite favorable to marriage equality, but that wasn’t always the case. In 2005, [your boss] was one of only three Democrats to vote Yes on HJR6 in the Senate/fifteen Democrats to vote Yes on HJR6 in the House. I would like to know, if he had to do it again today, would he still vote for HJR6?

This session, there are several joint amendments that would repeal this amendment – HJRs 77 and 78, and SJR 29. While I recognize that it is highly unlikely any of these resolutions will come to a vote, I would like to know if one of them did come up for a vote, would [your boss] vote for it?

I am sending this question to all five Democratic members of the Legislature who voted for HJR6 in 2005 and who are still serving as Democrats in the Legislature today. I intend to print the responses on my blog when I receive them. I look forward to receiving [your boss’] answer. Please let me know if you have any questions. Thanks very much.

The only complete response I got was from Rep. Richard Raymond:

In 2010 I decided that the only position I would take on the issue of marriage would be that I am pro marriage. Period.

Whether a person is gay or straight should be irrelevant.

What matters is that two people who love each other and want to get married should be able to do so.

Obviously, I’m glad to hear that. I wish I could say I got the same kind of answer from everyone I asked, but I can’t. Rep. Ryan Guillen responded that he had not read the legislation to repeal HJR6 – “I typically read bills as they come up for consideration and make my decision at that time”, he said. I followed up to inquire about whether he had changed his mind about his vote on HJR6, but did not get a response. Sen. Lucio declined to comment. I got no response from Reps. Tracy King or Joe Pickett despite two and three emails sent to them, respectively. So there’s still work to be done here. But we have come a long way. As Texas on the Potomac noted, not a single Texas Democrat voted against DOMA in 1996 – Sheila Jackson Lee, who voted “present”, was the only one not to vote in favor of it – but now many of them are full-throated in support of marriage equality. We will get to where we need to be, with marriage equality. I don’t know how long it will take, and I don’t know who will refuse to come along, but ultimately we will get there. It’s just a matter of time.