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FMLA

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.

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.

Paxton concedes FMLA lawsuit

Excellent.

RedEquality

Almost a month after the U.S. Supreme Court ruled that same-sex marriage bans are unconstitutional, Texas Attorney General Ken Paxton quietly conceded a case against the federal government over medical leave benefits for certain same-sex couples.

Paxton and the attorneys general of Arkansas, Georgia, Louisiana and Nebraska filed a voluntary dismissal on Friday with the U.S. District Court of the Northern District of Texas, where the states had sued the Obama administration over a rule change to the federal Family and Medical Leave Act, or FMLA. That change was intended to grant time off to legally married same-sex couples, even if they lived in a state like Texas that at the time did not recognize same-sex marriage.

[…]

Asked for comment on the dismissal, Cynthia Meyer, a spokeswoman for the AG’s office, said, “Our filing speaks for itself.” The state had spent at least $26,881 on the case, according to legal costs obtained from the AG’s office.

This is the second case related to same-sex marriage that Texas has dropped in light of the high court’s ruling. This month, Paxton’s office ended its defense of the state’s now-defunct ban on same-sex marriage.

See here and here for the background. Reality’s a bitch, ain’t it, Kenny? I’m just glad this got resolved in such a relatively short period of time, as that will minimize the pain and inconvenience for the affected employees. And no one will ever have to worry about it again.

Paxton drops another same sex marriage appeal

Another step forward.

RedEquality

Texas Attorney General Ken Paxton plans to dismiss an appeal challenging a Travis County judge’s February ruling that found the state’s ban on gay marriage to be unconstitutional.

The U.S. Supreme Court’s June 26 decision declaring gay couples have a fundamental right to marry left no legal controversy to be decided by Texas’ highest civil court, the attorney general’s office said Monday.

Once the appeal to the Texas Supreme Court is dropped, Travis County Probate Judge Guy Herman will be able to continue a case asking him to determine if an eight-year relationship between two Austin women should be recognized as a common-law marriage.

Paxton’s office, however, has not yet decided whether to continue a separate appeal in a Travis County case that allowed two Austin women to get married in February.

The Travis County cases are among the final loose ends remaining in the legal battle over gay marriage in Texas.

[…]

The Travis County marriage cases began Feb. 17, when Herman found the state’s ban on same-sex marriage to be unconstitutional as part of an estate fight in which Austin resident Sonemaly Phrasavath sought to have her longtime relationship with another woman, Stella Powell, declared a common-law marriage. Powell died last summer of colon cancer.

Two days later, state District Judge David Wahlberg ordered the Travis County clerk’s office to issue a marriage license to Sarah Goodfriend and Suzanne Bryant, citing Goodfriend’s poor health.

At Paxton’s request, the Texas Supreme Court temporarily blocked both rulings in February, and then began accepting legal briefs on how it should ultimately rule.

During a Monday hearing on the common-law marriage case, a lawyer for Paxton told Herman that the appeal would be dropped in that case. Herman then set an Oct. 5 hearing to determine if Phrasavath and Powell were in a common-law marriage.

“We’re going to treat it like any other common-law marriage case in Texas, which is all we’ve ever wanted,” said Brian Thompson, lawyer for Phrasavath.

See here and here for background on the Phrasavath and Powell case, and here for more on the Goodfriend and Bryant case, including a link to the Supreme Court injunction. I have to assume Paxton will drop that appeal as well, since it’s hard to see any legal grounds he’d have for continuing to pursue it.

As far as other legal loose ends go, I have yet to see any further news regarding the injunction against granting FMLA benefits to federal employees with same sex spouses in Texas. I feel certain this will go away with the filing of a motion, but either that hasn’t happened yet or I just haven’t been able to find a story about it. Here in Houston, the lawsuits that were filed over Mayor Annise Parker’s executive order allowing spousal benefits to all legally married city employees – one filed by three city employees seeking to force this action, and two other filed by agitators seeking to stop it; see here for the latest update – have now been dismissed. According to a Facebook update on Noel Freeman’s wall (Freeman being one of the original plaintiffs), “the case was closed today with this last entry: FINAL ORDER LIFTING STAY, DISSOLVING PRELIMINARY INJUNCTION, AND DISMISSING CASE AS MOOT granting 15 Unopposed MOTION to Lift Stay, Unopposed MOTION To Dissolve Preliminary Injunction, Unopposed MOTION to Dismiss 13 Preliminary Injunction and Dismiss Case as Moot Pursuant to Rule 41(a)(2). Case terminated on 7/6/2015. (Signed by Judge Sim Lake)”. Spousal benefits are now available to all city of Houston employees, as they should be.

On to the benefits

Now that same sex marriage is the law of the land, Texas employers need to make sure that the spousal benefits they offer apply to all spouses.

RedEquality

“If an employer provides benefits to anyone who is currently married, they must now treat gay and lesbian employees the same and offer them the exact same benefits,” said Neel Lane, a San Antonio lawyer at corporate law firm Akin Gump Strauss Hauer & Feld.

“The ruling has an enormous impact on employers and employees in Texas,” said Lane, who represents on a pro bono basis a gay couple in Texas who have challenged the state’s ban on same-sex marriages.

[…]

Lawyers said they have been inundated with calls – mainly from small- and medium-sized business owners – seeking legal advice on updating employment and benefits forms but also asking if there are ways under Texas law to avoid having to make changes.

James Griffin, an expert on employment benefits and federal tax law at Jackson Walker in Dallas, said the legal advice he is giving his business clients is simple.

“Don’t waste your time looking for ways to defeat this,” Griffin said. “The Supreme Court decision is very broad. This issue is done. Make the changes and move on.”

Griffin and other lawyers say most large corporations implemented policies years ago that extend benefits to same-sex couples.

But they say some Texas-based companies that operate exclusively within the state have not addressed the issue because they have never had employees come forward and say they are gay and want benefits for their partners. Lawyers say that because Texas political leaders have been adamantly anti-same-sex marriage and benefits, many workers were afraid to step forward.

“Now, because of the Supreme Court ruling, a lot of people who have been reluctant are going to raise their hand for the benefits and the companies have to address it,” said Mark Shank, an employment law partner at Gruber Hurst Elrod Johansen Hail Shank in Dallas.

Among the employers who have already taken action is the state of Texas.

The state’s bureaucracy is moving forward to comply with the U.S. Supreme Court’s gay-marriage decision, even as state elected officials – including Gov. Greg Abbott – have lambasted the landmark ruling.

Starting Wednesday – less than a week after the decision – the Employees Retirement System of Texas, the University of Texas System and the Texas A&M System will extend benefits to spouses of gay and lesbian employees.

That means the state’s largest employer, the State of Texas, will join the list of those providing equal benefits to same-sex partners.

The decision is latest sign that state government is accepting the ruling, which struck down gay marriage bans in Texas and other states. And that bureaucratic churn provides a notable counterbalance to the saber-rattling by Abbott and other top Republicans.

“This is all kind of new for us,” said Catherine Terrell, a spokeswoman for the Employees Retirement System of Texas. “We’re just looking at what other employers have seen.”

The state employees some 311,000 people, according to the state auditor’s office. Terrell said ERS, which handles benefits for most state employees, was anticipating that about 1,500 spouses of gay employees would now enroll for benefits.

A “notable counterbalance to the saber-rattling”. I like that. When you consider all the county clerks who ignored Ken Paxton’s legal “advice”, it’s quite clear who’s really out of touch here. That doesn’t mean they’re going to acknowledge it any time soon.

The Teacher Retirement System of Texas is also providing these benefits now; they weren’t included in the Trail Blazers post. Regarding the UT and A&M systems, I like the quote in this Trib story about that:

Professors at Texas’ public universities celebrated the extension of benefits, saying the policy change will offer relief for many gay and lesbian employees and reduce the rate at which they leave Texas institutions in search of schools that accommodate same-sex couples.

Patrick Burkart, a communications professor at Texas A&M University, said extending benefits for same-sex couples will put the university on the “same competitive footing” as other research universities across the country because it will help retain and recruit top faculty and staffers.

“What we’re going to find out is how expensive it’s been to keep a discriminatory policy on the books as we have,” said Burkart, the secretary and treasurer of the A&M chapter of the American Association of University Professors, which has pushed for the benefits for years.

Burkart, who has served on several faculty search committees, indicated that the previous policy denying benefits to same-sex spouses or partners kept potential candidates from applying for posts at the school.

Hundreds of colleges across the country offer benefits to same-sex spouses or same-sex domestic partners.

”I think our university has suffered for it, and now is a great time to catch up and gather our strengths,” Burkart said.

I’m willing to bet none of our “saber-rattling” state leaders ever considered that, and if any of them did, I seriously doubt they cared. It is of course one big reason why so many private employers have been doing this for so long – you’ve got to keep up with the competition. Burying your head in the sand never works.

Let’s go back to the first story for a minute to see an example of another place where they can demonstrate that:

Legal experts also say the first major domino likely to fall will occur in federal court in Wichita Falls, where a federal judge in March, at the request of Gov. Greg Abbott and Attorney General Paxton, issued an injunction that prevented the federal Family and Medical Leave Act from applying to same-sex couples in Texas.

Because of the ruling, Texas was one of four states in the U.S. where FMLA benefits have been denied to gay couples involved in civil unions.

“That decision will almost certainly be reversed right away,” said David Coale, a partner at Lynn Tillotson Pinker & Cox. “State political leaders may try to fight it, but they are going to lose, and then they are going to have to pay a lot of money to lawyers for pursuing frivolous legal claims.”

See here and here for the background. The lawsuit involved federal employees in Texas, who were covered by an Obama executive order extending employment benefits to same-sex spouses. In the face of Obergfell v. Hodges, the injunction that was granted is clearly out of order. I presume a motion to lift the injunction will be filed shortly, and will be granted right away. Any other outcome is unfathomable.

Moving on, all the newly-married couples in Texas can now sign up for health insurance if they need to.

Same-sex couples who marry have had what the Affordable Care Act considers a “qualifying life event.” And that triggers a special 60-day enrollment period to purchase health insurance from Texas’ federally run, online marketplace, a group promoting enrollment said Tuesday.

Enroll America, a nonprofit supporting Obamacare, said in a release that under the health law, marriage is one of the unusual phenomena that allow consumers a mid-year bite at the apple. The others are having a baby, moving to a different coverage area, getting divorced and experiencing certain changes of income that would affect tax credits and cost-sharing subsidies.

“People don’t know that the special enrollment period exists,” Enroll America spokeswoman Annette Raveneau said in an interview.

[…]

Newly married same-sex couples and others with qualifying life events can sign up all by themselves, using HealthCare.gov.

Raveneau, though, strongly recommends that shoppers meet in person with a certified assistance counselor or Obamacare navigator. They can schedule appointments using Enroll America’s “Get Covered Connector.”

“The people who use an in-person assister, which are free, are twice as likely to finish the enrollment process and actually get a plan,” she said.

How many people might be able to do this? We can only guess, in part because the state has no plans to count how many same-sex couples get hitched.

Though Texas collects detailed data on marriages by county and age, getting better information on same-sex marriage rates in Texas could take years since the state has no plans to separately track those unions. Following Friday’s ruling, the Department of State Health Services released a new gender-neutral marriage application for counties to use. The application does not ask for the sex of either of the applicants.

“We are not specifically tracking those at this time,” said Carrie Williams, a spokeswoman for the department. “The application asks for Applicant One and Applicant Two and currently does not ask for gender.”

States in which same-sex marriage was legal before Friday have taken different record-keeping approaches. Oregon, Vermont and Washington track marriage licenses specifically issued to same-sex couples. California and Florida simply track all marriages, and do not differentiate between same-sex and opposite-sex unions.

The U.S. Census Bureau’s American Community Survey estimated in 2013 that there were 252,000 married same-sex couples in the country, but later said that was likely an overestimate, citing flawed data. A recent paper from a census researcher put the figure at closer to 170,000.

The patchwork of data collection means reliable numbers on how many same-sex couples are getting married in different states may not be available until the next census in 2020, said Drew DeSilver, a senior writer with the Pew Research Center who has researched the issue.

I guess I’m not too bothered by this, since there doesn’t seem to be a single standard practice nationwide. It would be nice to know, but given the way the updated form is worded, I understand the reasoning. I’m sure there will be a million ways to come up with reasonably accurate estimates – new Obamacare enrollments will be one data point – and we’ll have Census data soon enough.

Injunction granted against FMLA benefits for same sex couples

What a load of crap.

RedEquality

A Wichita Falls federal district judge on Thursday granted Attorney General Ken Paxton’s request to temporarily stop the federal government from revising the Family and Medical Leave Act to include federal employees in same-sex unions.

Paxton and attorneys general from Arkansas, Louisiana and Nebraska who sued the federal government “have demonstrated that irreparable injury would occur” if the change went into effect Friday, as scheduled, Judge Reed O’Connor said in his order.

O’Connor, a President George W. Bush appointee, said the new rule would require Texas to recognize out-of-state same-sex unions in direct violation of state’s Family Code, which expressly forbids Texas agencies from giving any legal protection to same-sex couples.

“The Obama Administration’s attempt to force employers to recognize same-sex marriages would have put state agencies in the position of either violating Texas law or federal regulations,” Paxton said in a statement Thursday afternoon. “We are pleased that the Department of Labor’s effort to override our laws via federal rulemaking has been halted, and we will continue to defend our sovereignty in this case.”

Starting Friday, the labor agency had planned to change the FMLA definition of “spouse” to include gay federal employees who were legally married in states where those unions are legal – even if they move to a state that does not allow or recognize same-sex unions. The federal government may request a hearing on the injunction pending a final ruling on the merits of Paxton’s lawsuit.

See here for the background. I’m sorry, but I have a hard time seeing what harm Texas or any other state would suffer under this. These benefits only go to federal employees. Private companies are free to recognize and offer benefits to same sex couples despite Texas’ absurd prohibition against same-sex marriage, and last I checked nothing bad had happened. And seriously, this is all going to be moot soon enough. It’s just more fearmongering from the people who have lost this fight.

Paxton files his first lawsuit against the feds

Won’t be his last, I’m sure, but as the first it sure seems like a rearguard action.

RedEquality

The state of Texas is suing the Obama administration for giving medical leave benefits to certain same-sex couples, according to an announcement Wednesday from Attorney General Ken Paxton.

The lawsuit comes in response to a rule change announced by the president last month, which grants paid time off to legally married same-sex couples, even if they are living in a state, like Texas, that does not recognize gay marriage. The rule change to the federal Family and Medical Leave Act, or FMLA, is scheduled to take effect March 27.

“The newly revised definition of ‘spouse’ under the FMLA is in direct violation of state and federal laws and the U.S. Constitution,” Paxton said in a written statement.

The federal rule change would apply only to federal employees. Currently, same-sex couples cannot get married in Texas, so only couples who were legally married elsewhere would be eligible for the benefits.

Gay rights advocates criticized the lawsuit.

“I think there are a lot of people who would like to know why the attorney general cares if loving, committed couples are recognized as loving, committed couples,” said Daniel Williams, legislative director for Equality Texas, a group that lobbies for lesbian, gay, bisexual and transgender people.

A copy of the lawsuit is here. Seems to me this action would affect a fairly small number of people. How many federal employees are there in Texas – do Texas National Guard members count? – and how many of them are in same sex relationships? But we know it’s not about the numbers for Paxton but the principle, which is the irrational animosity towards LGBT people. One would think that an adverse-to-Texas ruling from SCOTUS in June would render this moot. One would also hope that this might spur the Fifth Circuit to either issue its own ruling or take action on the request to lift the stay. In the meantime, I agree with Neel Lane.

Neel Lane, an attorney representing gay couples in the Texas marriage equality case, criticized Paxton’s action.

“It appears Atty. Gen. Paxton has decided to follow his predecessor’s practice of wasting taxpayer money by filing hopeless politically-motivated lawsuits against the federal government that are doomed to fail,” Lane said.

“In this case, Paxton is persecuting law-abiding citizens who simply happen to be gay or lesbian,” he said, adding that the civil rights fights of 50 years ago proved that such a “tactic may work in the short term, but eventually we will all condemn his actions for what they are.”

Indeed.