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Anti-same sex employee benefits lawsuit moved back to state court

On and on we go.

Nearly three years after the U.S. Supreme Court legalized same-sex marriage nationwide, the city of Houston continues to battle for the rights of its gay workers.

On Tuesday, a judge struck down Houston’s attempts to defend its city benefits policy in federal court. The case will be remanded back to state court, and the city will have to pay the legal fees of the two men suing to overturn the policy, which extends spousal benefits to same-sex marriages.

The outcome of this case will be limited to the city of Houston. Dallas has a similar policy that has not been challenged.

But the fight is a good example of the war waged to erase, erode or at least stop the expansion of LGBT rights since since the 2015 marriage ruling, Noel Freeman said.

“These are people who are never, ever going to give up. They are going to go to their grave hating us,” Freeman, the first city of Houston employee to receive spousal benefits for his husband, told The Dallas Morning News on Wednesday. “And there is no court case … that’s going to change their minds.

“That’s just the way it is.”

[…]

In a last-ditch effort to shift the fight to federal court, Houston asked to move the case to the Southern District Court earlier this year. On Tuesday, Judge Kenneth Hoyt ruled the city did not prove federal court was the proper venue and ordered it to pay Pidgeon and Hicks’ legal fees.

The case will be remanded to Harris County District Court. Married gay city employees will continue to receive benefits for their spouses until a final ruling.

See here for previous coverage of this atrocity, which is still a thing because our feckless State Supreme Court allowed itself to be pressured into giving the case a second chance after previously refusing to consider it. Noel Freeman, who’s a friend of mine, is quite right that the people pursuing this action (including Jared Woodfill) will never give up – if this suit is ultimately ruled against them, they’ll find some other pretext to keep LGBT folks from being treated as full and equal members of society. We all need to oppose the politicians who enable these haters, and support those who favor equality. It’s the only way this will get better.

More on Mark Phariss

I figured it was just a matter of time before someone wrote a feature story about Mark Phariss’ candidacy for State Senate.

Mark Phariss

The man who sued Texas to overturn the state’s ban on gay marriage will run for Senate as a Democrat, vying for the seat that represents much of Collin County.

Mark Phariss told The Dallas Morning News he decided to run after seeing Democrats win in other Republican strongholds, like Virginia and Alabama.

“When I was accepting the fact that I was gay, there were two things I kind of thought I had to give up: One, getting married, and two, running for political office,” Phariss said Tuesday. “I need to quit assuming what people will think. I need to allow them the choice.”

Phariss, a business attorney based in Plano, and longtime partner Victor Holmes, an Air Force veteran, were two of four plaintiffs who sued Texas in 2013 over its ban on same-sex marriage. Their case was in progress when the U.S. Supreme Court extended the right to marry to all same-sex couples in June 2015.

Phariss and Holmes wed just months later. Between the day the two met and the day they could legally call each other “husband,” 18 years had passed.

Phariss will first face Plano resident and engineer Brian Chaput in the Democratic primary on March 6. Whoever wins that race will proceed to the November general election against either Angela Paxton or Phillip Huffines, who are duking it out for the GOP nomination.

Paxton is the wife of Attorney General Ken Paxton, an outspoken opponent of same-sex marriage, and Huffines is the twin brother of Don Huffines, a Republican senator who represents Dallas. If Phariss advances to the general election and wins, he’d be Texas’ first openly gay state senator.

Well, not exactly. That’s because Fran Watson is also running for State Senate, in SD17, and as that is a more purple district than SD08, she arguably has the better chance of earning that distinction. But hey, who knows, maybe both of them will be elected. In that case, they can toss a coin or use the random draw for seniority, which is used for office-selection purposes, to determine who the true “first openly gay state senator” is. I’m sure neither of them would mind having that debate.

SCOTUS declines to hear Houston’s appeal of same-sex marriage lawsuit

Disappointing, but nowhere close to the end of the line.

Denying the city of Houston’s request, the U.S. Supreme Court will not review a June decision by the Texas Supreme Court, which ruled that the landmark decision legalizing same-sex marriage does not fully address the right to marriage benefits.

The high court on Monday announced it would not take up the case — which centers on Houston’s policy to provide spouses of gay and lesbian employees the same government-subsidized marriage benefits it provides to opposite-sex spouses — just months after the city of Houston filed its appeal, arguing the state court’s June decision “disregarded” precedent.

In that decision, the Texas Supreme Court threw out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized marriage benefits, and it unanimously ordered a trial court to reconsider the case. The ruling found that there’s still room for state courts to explore “the reach and ramifications” of marriage-related issues that resulted from the legalization of same-sex marriage.

That’s despite the U.S. Supreme Court’s landmark ruling in Obergefell v. Hodges, which legalized same-sex marriage nationwide in 2015 and noted that now-defunct marriage laws were unequal in how they denied same-sex couples the benefits afforded to opposite-sex couples.

See here for the previous update. What this means is that the district court needs to reconsider the lawsuit in light of the state Supreme Court’s assertion that Obergefell may have made marriage universal, but it did not specifically address the question of whether same-sex marriages are entitled to the same actual rights and benefits as traditional marriage. If all this sounds to you like unfathomable pinhead-ery, in which the concept of marriage is divided into an upper class and an underclass based on biology and the easily offended sensibilities of a couple of old coots, you’re correct. But this is where we are. The city will continue to provide spousal benefits for all its married employees, as it has the right to do, at least for now. The Chron, the Dallas Observer, the Texas Observer, and the Current have more.

Kirkland for Supreme Court

Good.

Steven Kirkland

Houston State District Court Judge Steven Kirkland has announced his candidacy for a seat on the all-Republican Texas Supreme Court, making him the first openly gay candidate to run for the state’s highest civil court.

Kirkland, a Democrat, is seeking Place 2 on the court, which is currently held by Justice Don Willett. Willett was nominated to the U.S. Court of Appeals for the Fifth Circuit by President Donald Trump in September, setting the stage for an open primary if Willett wins Senate confirmation.

“I’m running because the Texas Supreme Court has entered far too many decisions recently that reek of politics and it’s time to change that,” Kirkland said.

Kirkland points to the court’s recent unanimous decision on June 30 in Pidgeon v. Turner, which ruled that the City of Houston should not have extended its benefits policy to same-sex couples as a primary example of a political decision.

Kirkland notes that since the U.S. Supreme Court issued its landmark 2015 decision in Obergefell v. Hodges that legalized same-sex marriage nationwide that “marriage means marriage.”
“They were thumbing their noses at the law and thumbing their noses at the U.S. Supreme Court, all to protect themselves in the Republican primary,” Kirkland said of the ruling.

He’s dead-on right about that, and with any luck our state Supreme Court will get smacked down by the federal one. Kirkland’s candidacy, whatever happens next November, will provide an opportunity to remind everyone what a crappy and craven ruling that was, and that we the people have a chance to do something about it. Kirkland joins his colleague RK Sandill in mounting a statewide race. (Like Sandill, Kirkland is not on the ballot for district court again until 2020.) We need one more to fill out this slate, plus three for the Court of Criminal Appeals. Much as I love these guys, I do hope we get some candidates from outside Harris County as well. OutSmart has more.

Judgmental

The only bench this guy should be allowed on is a park bench.

I am staring INTO YOUR SOUL

Jeff Mateer, a high-ranking official in Texas Attorney General Ken Paxton’s office who President Donald Trump has nominated for a federal judgeship, said in speeches in 2015 that transgender children are part of “Satan’s plan” and argued same-sex marriage would open the floodgates for “disgusting” forms of marriage, according to CNN.

“In Colorado, a public school has been sued because a first grader and I forget the sex, she’s a girl who thinks she’s a boy or a boy who thinks she’s a girl, it’s probably that, a boy who thinks she’s a girl,” Mateer said in a May 2015 speech first reported by CNN, referencing a Colorado lawsuit that involved a transgender girl’s parents suing her school for prohibiting her from using the restroom she preferred. “I mean it just really shows you how Satan’s plan is working and the destruction that’s going on.”

In the same speech, Mateer also criticized the 2015 U.S. Supreme Court decision legalizing same-sex marriage as taking the nation back to a time of “debauchery.”

“I mean, it’s disgusting,” he said. “I’ve learned words I didn’t know. There are people who marry themselves. Somebody wanted to marry a tree. People marrying their pets. It’s just like — you know, you read the New Testament and you read about all the things and you think, ‘Oh, that’s not going on in our community.’ Oh yes it is. We’re going back to that time where debauchery rules.”

All righty then. Note that this wasn’t pulled out of an old email or a paper he wrote in college, it’s from a speech he made at a public event two years ago. Is there any reason to believe that Jeff Mateer would treat everyone who came before his court in a fair and impartial manner? Surely any LGBT person would have good cause to doubt that, but so would anyone who doesn’t share Mateer’s views on, well, pretty much anything. He’s made a career out of claiming that privileges people of his religious faith. “Travesty” is not a strong enough word for making this guy a visiting judge, much less giving him a lifetime appointment to a federal bench. Unfortunately, he’s far from the only such nominee, in Texas and all around the country. The Chron and the Current have more.

City goes to SCOTUS over same-sex spousal benefits

Good.

The City of Houston and Mayor Sylvester Turner filed a petition Friday asking the U.S. Supreme Court to review a decision that came down earlier this summer, concluding that states did not have to provide publicly funded benefits to same-sex couples, according to a news release from the city.

The decision in Pidgeon v. Parker from the Texas Supreme Court on June 30 said states did not have to provide government employee benefits to all married persons, regardless of whether their marriages are same sex or opposite sex.

The Texas court claims the U.S. Supreme Court’s landmark 2015 decision Obergefell v. Hodges, that recognized marriage rights among gay couples did not determine whether same-sex couples have spousal benefits. The court also said the Pavan vs. Smith case does not conclude whether same-sex couples are entitled to spousal benefits.

See here and here for the background, and here for the city’s press release. There is also a lawsuit filed by affected employees against the city to force it to continue paying the benefits, which as this statement indicates the city is doing and intends to continue as long as a court doesn’t order it not to. The Pavan v. Smith case held that “Having chosen to make its birth certificates more than mere markers of biological relationships and to use them to give married parents a form of legal recognition that is not available to unmarried parents, Arkansas may not, consistent with Obergefell v. Hodges, deny married same-sex couples that recognition”. Seems pretty damn clear that the same standard would apply for employee benefits, but as we know some lessons have to be learned the hard way. Kudos to the city for trying to short-circuit this homophobic nonsense.

Pastoral malignancy

Know your enemy.

A day before the Texas Legislature ended its special session this week, a session that included a high-profile fight over a “bathroom bill” that appeared almost certainly dead, David Welch had a message for Gov. Greg Abbott: call lawmakers back to Austin. Again.

For years, Welch, executive director of the Texas Pastor Council, has worked to pass a bill that would ban local policies that ensured transgender individuals’ right to use restrooms in public schools and government buildings that match their gender identity. The summer special session, which was quickly coming to a close, had been Welch and other social conservatives’ second chance, an overtime round after the bill — denounced by critics as discriminatory and unnecessary — failed during the regular session that ended in May.

But with the Texas House unlikely to vote on a bathroom bill, Welch gathered with some of the most conservative Republicans in that chamber to make a final plea. The bill, they argued without any evidence, would prevent men from entering bathrooms to sexually assault or harass women.

“If this does not pass during this special session, we are asking for, urgently on behalf of all these pastors across the state of Texas, that we do hold a second special session until the job is done,” Welch said at the press event, hosted by Texas Values, a socially conservative group.

Though the group of lawmakers, religious leaders and activists were still coming to terms with their failure to get a bill to Abbott’s desk, for Welch’s Pastor Council, the years-long fight over bathroom restrictions has nonetheless been a galvanizing campaign.

The group, which Welch founded in 2003, has grown from a local organization to a burgeoning statewide apparatus with eyes on someday becoming a nationwide force, one able to mobilize conservative Christians around the country into future political battles. If Abbott doesn’t call lawmakers back for another special session to pass a bathroom bill, the group is likely to shift its attention to the 2018 elections.

“Our role in this process shouldn’t be restricted just because people attend church,” Welch told The Texas Tribune. “Active voting, informed voting, is a legitimate ministry of the church.”

[…]

With primary season approaching, members of the Pastor Council are preparing to take their campaign to the ballot box and unseat Republicans who did not do enough to challenge Straus’ opposition to a “bathroom bill.” Steve Riggle, a pastor to a congregation of more than 20,000 at Grace Community Church in Houston and a member of the Pastor Council, said he and others are talking about “how in the world do we have 90-some Republicans [in the 150-member Texas House] who won’t stand behind what they say they believe.”

“They’re more afraid of Straus than they are of us,” he said. “It’s about time they’re more afraid of us.”

First, let me commend the Trib for noting that the push for the bathroom bill was based on a lie, and for reporting that Welch and his squadron of ideologues are far from a representative voice in the Christian community. Both of these points are often overlooked in reporting about so-called “Christian” conservatives, so kudos to the Trib for getting it right. I would just add that what people like Dave Welch and Steve Riggle believe, and want the Lege and the Congress to legalize, is that they have a right to discriminate against anyone they want, as long as they can claim “religious” reasons for it.

As such, I really hope that Chris Wallace and the rest of the business community absorbs what these bad hombres are saying. I want them to understand that the power dynamic in the Republican Party has greatly shifted, in a way that threatens to leave them on the sidelines. It used to be that the Republican legislative caucus was owned and operated by business interests, with the religious zealots providing votes and logistical support. The zealots are now in charge, or at least they are trying to be. Dan Patrick and Ken Paxton and increasingly Greg Abbott are on their side, and now they want to take out Joe Straus and enforce complete control. Either the business lobby fights back by supporting a mix of non-wacko Republicans in primaries and Democrats in winnable November races, or this is what the agenda for 2019 will look like. I hope you’re paying attention, because there may not be a second chance to get this right. The DMN has more.

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.

OutSmart talks to Kim Ogg

Another good read about our new DA, one that goes into her personal background in some depth.

Kim Ogg

John Wright: Your father, Jack Ogg, was a longtime Texas state legislator, and your late mother was well-known for her charity work. What it was like coming out to your parents?

Kim Ogg: It was traumatic. My parents were of the generation—they felt like my being gay was their responsibility, and that they were morally accountable. I had grown up in politics, and I understood that being gay was a political liability to my father and family, and so it was excruciating. Our family broke apart for some time, but we’re so close that what that did was give me time to go grow up, which I did. I had been on my father’s “payroll” from birth to college, but the day I got out of college I was on my own, and I’ve been on my own ever since. My family and I didn’t see each other on anything but holidays after that for some time—almost four years.

Our family broke up, [but then] we came around. I quit being. . . I was a little militant. An example would be that I wore camouflage for almost a whole year. I was at war with the world. And then it turned out that to get and keep a good job, you needed to have a broader wardrobe.

[…]

In 1996, you ran for district judge as a Republican, and longtime antigay activist Steve Hotze endorsed your opponent in the primary. Were you gay-baited in that race?

They didn’t gay-bait me; they gay-crucified me. But they didn’t do it in print. They did it through a telephone and whisper campaign, and they injected a third candidate into the race. I did not interview with Hotze, and I never answered any questions for him, so I never lied about my homosexuality. [But] the whole courthouse knew. It was funny, they didn’t do an antigay mailer, but they did a whisper campaign. It was enough to force me into a primary runoff where extremists usually win, and so the more conservative candidate won.

Twenty years later, in 2016, you were gay-baited again by your Republican opponent, former district attorney Devon Anderson, and it became a major news story.

It was my lifelong fear, being called a lesbian in front of my entire hometown—4.5 million people, on television. It’s like showing up with no clothes on or something—that bad dream that you have. When it finally happened, I knew it was exploitable and could benefit me, but I had to magnify that thing that I was so afraid of. And so we just sent it out to everybody—it was so freeing. It was sort of like coming out to my family. At that point, you don’t have anything left to lose. You have everything to gain. I realized at that moment how much that fear—it wasn’t a false fear—but it felt so good to let it go and just send it out to the world: “Devon Anderson called me a lesbian.” Discrimination, no matter how you dress it up, is wrong. For Devon to have regressed to name-calling was indicative of her losing the election.

When you ran as a Republican in 1996, Republicans attacked you for having voted in Democratic primaries. When you ran as a Democrat in 2014 and 2016, you were criticized for having voted in Republican primaries. Talk about your partisan evolution.

I think the criticism has been that I have been disloyal to both parties, and what I would tell you is that I grew up in the Democratic Party. I was pretty frustrated with [Democrats] in the mid-’90s, and Republicans were promising this big tent, and I thought it sounded reasonable. It didn’t turn out to be true. In the second presidential campaign under George W. Bush, they really utilized gay marriage—it was used as a wedge issue nationally in 2004, and I would say that radicalized me to the Democratic perspective. I was never going to be for a party that stood for hate and that used discrimination as a platform, as a literal political platform. So, for 13 years, I’ve been a Democrat and stayed a Democrat, and I don’t intend to ever change.

There’s more, so go read it. It’s fascinating to me because I didn’t know a lot of this stuff. Partly this is because I wasn’t paying close attention to local politics in the 90s, and partly because Ogg herself didn’t talk about any of it during either of her campaigns. Hearing her talk now about how she was affected by the gay-baiting in the 2016 campaign, mild as it was in comparison to some other examples we’ve seen, is an eye-opener. Check it out.

Anti-spousal benefits plaintiffs ask for injunction

Ridiculous.

Conservative activists are seeking an injunction blocking Houston from paying same-sex spousal benefits to its municipal employees, after Texas’ Supreme Court ruled last week that gay couples may not be entitled to them.

Attorneys filed a motion Friday in District Court in Harris County, which includes Houston.

They also want to recover public funds that America’s fourth-largest city spent on same-sex spousal benefits since November 2013, though how much such “clawbacks” would be worth is unclear.

See here for the background. I looked for a more detailed version of this story, which hit on Friday afternoon, but couldn’t find one. The Supreme Court decision, ludicrous as it was, merely reinstated the plaintiffs’ lawsuit after it had been dismissed, saying there were questions to be addressed. To argue for an injunction – with clawbacks, no less – is an enormous stretch. The animus radiating from this action is so strong it must be giving Justice Kennedy a migraine. I don’t know how this could possibly go anywhere, but then I thought this was a settled matter back when the Supreme Court initially declined to gt involved. I don’t know what to think any more.

Supreme Court sends same-sex marriage benefits question back to lower court

Unbelievable.

The Texas Supreme Court on Friday threw out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized same-sex marriage benefits. The state’s highest civil court ordered a trial court to reconsider the case.

As part of a case challenging Houston’s benefits policy, the Supreme Court suggested a landmark ruling legalizing same-sex marriage does not fully address the right to marriage benefits. Justice Jeffrey Boyd, writing on behalf of the court in a 24-page opinion, said there’s still room for state courts to explore the “reach and ramifications” of the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges.

“We agree with the Mayor [of Houston] that any effort to resolve whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples without considering Obergefell would simply be erroneous,” Boyd wrote.“On the other hand, we agree… that the Supreme Court did not address and resolve that specific issue in Obergefell.”

[…]

During a March hearing, Douglas Alexander, the lawyer who defended Houston’s benefits policy, told the court that the case was moot under Obergefell’s guarantee that all marriages be equally regarded.

Jonathan Mitchell, the former solicitor general for the state and the lawyer representing opponents of the Houston policy, argued that marriage benefits are not a fundamental right and that Obergefell did not resolve questions surrounding such policies.

On Friday, the Texas Supreme Court agreed with that argument, noting that Obergefell requires states to license and recognize same-sex marriages in the same manner as opposite-sex marriages but did not hold that “states must provide the same publicly funded benefits to all married persons.”

That does not mean Houston can “constitutionally deny benefits to its employees’ same-sex spouses,” the court added, but the issue must now be resolved “in light of Obergefell.”

See here and here for the background, and here for a copy of the opinion. I’m going to let ThinkProgress’ Ian Millhiser speak for me here:

The Texas Supreme Court’s decision does not outright declare that [the plaintiffs] should win this case, but it does keep their suit alive by claiming that Obergefell left open an unresolved question.

“The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages,” according to Justice Jeffrey Boyd’s opinion, “but it did not hold that states must provide the same publicly funded benefits to all married persons.”

Texas’ highest civil court claims, in other words, that despite the Supreme Court’s decision that same-sex couples must be allowed to marry “on the same terms and conditions as opposite-sex couples,” a state may be permitted to give same-sex couples a piece of paper declaring them married while denying them the actual legal benefits of marriage.

After reaching this dubious conclusion, the Texas court plays coy, saying that it is merely sending the case back down to a lower court in order to resolve a supposedly open question. “Of course, that does not mean that the Texas DOMAs are constitutional or that the City may constitutionally deny benefits to its employees’ same-sex spouses,” Justice Boyd writes.

One of the plaintiffs in this case, Boyd continues, “contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case. And the Mayor has not yet had the opportunity to oppose it. Both are entitled to a full and fair opportunity to litigate their positions on remand.”

Such a decision makes no sense if you understand the Texas Supreme Court as a court that is trying to resolve legal cases in a timely and efficient manner — but it does make perfect sense if you understand its justices as political actors.

The only way one can reach this conclusion is if one believes there is such a thing as “gay marriage” and “straight marriage”, and that the two are fundamentally different, with the former deserving less respect than the latter. The only way to begin down the path towards that conclusion is to start from a point of antipathy towards same-sex couples, and more broadly towards LGBTQ people. This is exactly what the SCOTUS decision in Obergefell addressed. Everything about this is so much sophist bullshit. It’s wrong, it’s completely out of touch with public opinion, and it’s shameful in a way that I have a hard time finding words for. Mayor Turner’s statement, which reaffirms the city’s commitment to marriage equality, is here, and the Chron, the Statesman, the Current, the Press, Daily Kos, and the DMN have more.

Attorney’s fees awarded to same sex marriage plaintiffs

Justice.

Texas is on the hook for more than $600,000 in fees associated with its unsuccessful fight to defend the state’s ban on same-sex marriage.

Affirming a lower court ruling on the fees, the U.S. 5th Circuit Court of Appeals this week shot down Texas Attorney General Ken Paxton’s challenge to the award amount granted to two same-sex couples who had sued the state.

A three-judge panel of the 5th Circuit ruled that the district court “acted well within its broad discretion” in awarding those legal fees.

The fees stem from a lawsuit filed years ago by Cleopatra DeLeon and her wife, Nicole Dimetman, and Mark Phariss and his husband, Victor Holmes, who challenged the constitutionality of the state’s now-defunct same-sex marriage ban.

The couples were successful at the district court level, where a San Antonio federal judge ruled the state’s ban was unconstitutional because it “violates plaintiffs’ equal protection and due process rights.”

Anticipating an appeal, that ruling was stayed and the the ban was left in place. The lawsuit eventually made its way to the 5th Circuit, where a three-judge panel in early 2015 signaled significant doubt about the constitutionality of Texas’ ban.

Note that the Fifth Circuit never actually lifted the stay that was put in place when the original district court ruling was made in favor of DeLeon-Dimetman and Phariss-Holmes. The plaintiffs asked for the stay to be lifted in February of 2015, but no ruling was made before the Obergefell decision was handed down by SCOTUS, and the state of Texas rendered any further action moot by asking the Fifth Circuit to affirm the lower court ruling thereafter. It’s been more than three years since the lower court ruling, and nearly two years since Obergefell. You can’t rush these things, obviously. As the DMN notes, the money will go to the law firm that represented the plaintiffs, and they have pledged to use those funds for further pro bono cases. So at least one good thing happened yesterday while we were all subjected to more bathroom bullshit from the Legislature.

“Strongly held religious beliefs” do not justify discrimination

This is a very bad idea.

Legislation that would allow county clerks in Texas to decline to issue same-sex marriage licenses if it conflicts with their religious beliefs was tentatively approved Tuesday by the Texas Senate.

State Sen. Brian Birdwell, a Granbury Republican who authored the measure, said the Senate Bill 522 would allow clerks to recuse themselves from issuing a same-sex license and would instead assign their duties to other clerks, a judge or even a special clerk.

The vote was 21-10, mostly along party lines. A final vote is expected within a few days.

“This provides a way for clerks to exercise their profoundly held religious beliefs under the First Amendment, and at the same time protect the rights of couples who are coming in for a marriage license,” Birdwell said. “Right now, there is not an alternate mechanism for a clerk who is not willing to issue a license because of their sincerely held beliefs.”

[…]

Sen. Sylvia Garcia, D-Houston, questioned who the bill was supposed to protect.

“My main concern here is that all the clerks and judges know about the law and are following the law,” Garcia said.

Birdwell responded: “Without this, we’re saying that if you have strongly held religious beliefs, you are not welcome in public office.”

There is so much wrong with what Sen. Birdwell is saying. Warren Jeffs has “strongly held religious beliefs”. Last I checked, no one was seeking to pass a bill to better accommodate those beliefs. Believing in something extra hard doesn’t make it good or just or worthy of respect. A Catholic county clerk with “strongly held religious beliefs” would by this logic want to be able to recuse themselves from issuing a license to anyone who was divorced or to couples that were cohabiting. There’s a perfectly reasonable alternative bill that would address the concern of the deeply religious county clerk without singling out any particular marriage license applicants.

And that’s really the crux of this. The reason for this bill is because some people still don’t approve of same sex marriage and want to be able to express that disapproval in a formal and sanctioned way. That in turn leads to things like desperate legal attempts to redefine “marriage” in a way that makes it something lesser for same sex couples. There’s no way to escape the animus that a bill like this expresses towards same sex couples, which is at the heart of the Obergefell decision. All but a handful of County Clerks were able to do this after that ruling was made, and those who objected initially have since complied with the law. If there is anyone who can’t comply with that law now, then maybe being a County Clerk isn’t the right job for them.

Let the clerks out of it

I approve of this.

The state’s leading LGBT advocacy group has thrown its support behind a bill that would accommodate county clerks with religious objections to same-sex marriage.

Under Senate Bill 911, by state Senator Joan Huffman, R-Sugar Land, marriage licenses in Texas would no longer specify the names of clerks who issue them, instead listing only the counties where they’re obtained.

Chuck Smith, CEO of Equality Texas, said though he hasn’t spoken with anyone from Huffman’s office about SB 911, his group is supporting the bill as “a simple solution.”

“If there are county clerks who want to make a stink, then this proposed legislation cuts their feet off,” Smith said. “Your name isn’t on it [the license]. Nobody would know. Do your job.”

[…]

SB 911 is one of at least four proposals in the 85th Legislature dealing with county clerks and marriage licenses. Others would allow clerks to opt out of issuing licenses to same-sex couples altogether, in some cases forcing them to travel to adjacent counties, which experts say would run afoul of the Obergefell decision.

“The delivery of the service, the access to a license, has to be the same for all people, and if that can be accomplished, we are supportive of that,” Smith said. “I would suggest that [SB 911] is the solution to eliminate any of the other proposed legislation related to county clerks or related to marriage licenses that we would oppose.”

The story notes the Hood County saga, and quotes the Irion County Clerk, who allows that this might satisfy the objections of people like her. I personally don’t think that County Clerks should need to be accommodated in this way since none of this is about them, but whatever. If something as simple as this will get the complainers to knock it off, then I’m all for it.

Supreme Court hears ridiculous same-sex marriage appeal

Was this trip really necessary?

Same-sex couples are entitled to the same treatment as opposite-sex couples, a lawyer for the city of Houston argued before the Texas Supreme Court on Wednesday in a case challenging the city’s benefits policy for married same-sex couples.

As part of Texas Republicans’ ongoing fight against same-sex marriage, justices of the state’s highest civil court heard arguments in a case centered on whether Houston and other governmental entities are required by the U.S. Supreme Court’s landmark 2015 ruling in the case of Obergefell v. Hodges to extend taxpayer-subsidized benefits to same-spouses of government employees.

In Obergefell, the U.S. Supreme Court ruled that bans on marriages between couples of the same sex are unconstitutional and that states must recognize same-sex marriage as legal. Following that ruling, public employers in the state quickly extended benefits for same-sex spouses of public employees.

Arguing that interpretation is too broad, opponents of same-sex marriage have taken up a challenge against Houston’s policy, hoping the Texas court will issue an opinion that narrows the scope of the ruling because they believe marriage benefits are not a fundamental right.

But Douglas Alexander, the lawyer that defended Houston’s benefits policy, told the court on Wednesday that arguments against benefits to same-sex couples are moot under Obergefell’s guarantee that all marriages be equally regarded.

“What we’re saying is that if you extend spousal benefits to opposite sex couples then under Obergefell you also have to extend it to same sex,” Alexander told the court. “Not because there’s a fundamental right to employment benefits or spousal benefits but because there’s a fundamental right that both of those marriages be treated equally.”

See here for the background. I’m not an attorney, but Martin Siegel is. I’m going to hand the microphone to him for a minute:

The Republican officials’ argument depends on minimizing Justice Anthony Kennedy’s landmark opinion in Obergefell, but that opinion rules out their position. The opinion cites the many privileges afforded married couples – favorable tax treatment, property and inheritance rights, hospital access, health insurance, and so on – and expressly condemns the “material burden” that occurs when same-sex couples “are denied the constellation of benefits that the States have linked to marriage.” In fact, one of the specific state laws struck down by the decision concerned one of these benefits: a Michigan law that prevented plaintiffs April DeBoer and Jayne Rowse from adopting and raising special-needs children as married parents in the same family, rather than as separate individuals with no legal relationship.

As any lawyer knows, the opinions of the Supreme Court and the language the justices use in them matter greatly. Day in and day out, lower courts and lawyers apply both to new disputes that, while different factually, are nonetheless covered by the text and clear meaning of earlier opinions. The claim that Obergefell doesn’t resolve whether marriage-related benefits must be provided equally would puzzle any second-year law student.

A second argument advanced specifically by Republican state senators and representatives is that, because the Constitution doesn’t require local governments to give employment benefits to anyone, straight or gay, Texas can give them to one but not the other. Otherwise, Texas would be “subsidizing” gay marriage.

This willfully misses the point. It’s not that gay employees have a constitutional right to employment benefits or subsidies; it’s that they have a constitutional right to equal treatment. Public education is analogous. The U.S. Constitution doesn’t require states to provide public education, but if a state chooses to do so, it can’t segregate students by race. In Obergefell, the Court specifically applied the Fourteenth Amendment’s equal protection clause to strike down laws outlawing gay marriage because, under those laws, “same-sex couples (were) denied all the benefits afforded to opposite-sex couples.”

Education provides a useful comparison, too, because the Republican officials’ miserly approach to Obergefell recalls southern resistance to Brown v. Board of Education in the 1950s and ’60s. Through creative evasions and court battles, officials fought for years to preserve Jim Crow despite the Supreme Court’s mandate to integrate with “all deliberate speed.” In some places, they closed schools and other public accommodations rather than open them to everyone – just as the Republican legislators now justify denying employment benefits to gay spouses by suggesting they could constitutionally deny them to everyone.

Mark Joseph Stern, who is apparently on a tour of Texas this week, thinks the Supreme Court will ultimately dismiss this on procedural grounds. Whatever happens here, the plaintiffs in this case and their Republican enablers are on the losing side of the argument. There is no justification for what they are trying to do. The Supreme Court should have stood by their original decision to not hear this case, but failing that the least they can do is follow the law and give these plaintiffs the stinging defeat they so richly deserve. Texas Monthly has more.

State Supreme Court hears same sex marriage appeal today

Gird your loins.

Almost two years after same-sex marriage was legalized nationwide, Texas Republicans are still fighting the ruling — and they’re getting another day in court.

The Texas Supreme Court is set to hear oral arguments on Wednesday in a Houston case challenging the city’s benefits policy for married same-sex couples. Though such policies have been in place since the U.S. Supreme Court’s landmark 2015 ruling in the case of Obergefell v. Hodges, Texas conservatives are betting the Houston case opens up a path to relitigate the high court’s decision.

“This particular opinion will go to the U.S. Supreme Court and is a potential vehicle for overturning Obergefell given the changing composition of the court,” said Jared Woodfill, one of the lawyers leading the lawsuit filed against Houston on behalf of two taxpayers, and a prominent conservative activist in the city. “Ultimately, I would like to see Obergefell overturned.”

At the center of the Houston case is whether Obergefell, which legalized same-sex marriage across the country, requires the city and other governmental agencies to extend taxpayer-subsidized benefits to same-sex spouses of government employees.

In Obergefell, the U.S. Supreme Court in 2015 ruled that bans on marriages between couples of the same sex are unconstitutional and that states must recognize same-sex marriage as legal. Following that ruling, public employers in the state quickly extended benefits for same-sex spouses of public employees.

But opponents argue that interpretation was far too broad.

Obergefell may require states to license and recognize same-sex marriages, but that does not require states to give taxpayer subsidies to same-sex couples — any more than Roe v. Wade requires states to subsidize abortions or abortion providers,” lawyers challenging the Houston policy wrote in a filing with the Texas Supreme Court.

They argue that the right to marry does not “entail any particular package of tax benefits, employee fringe benefits or testimonial privileges.” (In a separate case against the state’s now-defunct ban on same-sex marriage, the Texas Attorney General’s office actually argued that marriage is a right that comes with benefits the state is entitled to control.)

[…]

For observers, the court’s reversal was an unusual move. And it’s difficult to ignore the politics involved, considering that the legal issues in the Houston case seem to be “tap dancing around what is already a fairly established right,” said Brandon Rottinghaus, a political science professor and Texas Constitution expert at the University of Houston.

“There has been an emerging litmus test for state judges that wasn’t necessarily so apparent 20 years ago,” Rottinghaus said. “Republicans have party control of the court but not necessarily ideological control, and I think these kinds of cases are those that can be used in the future to be a bulwark for conservative activists looking to change even a Republican court to a more conservative direction.”

See here and here for the background, and here for an amicus brief filed on behalf of Equality Texas and a married couple who would be negatively affected by a ruling for the plaintiffs. The Supreme Court is gonna do what the Supreme Court is gonna do, and I’m not in a position to analyze the legal minutiae. What I will emphasize is that not only does this lawsuit go against any common sense idea of fairness – if you’re married, you’re married, and you have the same rights and responsibilities as anyone else who is married; I do know that the underpinning of the Obergefell ruling was a rejection of this argument that same-sex couples are somehow “less than” opposite sex couples – but it’s well against the mainstream of public opinion. Even before Obergefell was handed down, a plurality of Texans supported same sex marriage. I can’t find any more recent results, mostly because it’s not even worth polling on these days. Corporate America has been providing benefits to same-sex couples for years now. This is a settled matter for everyone except pea-brained individuals like Jared Woodfill. I can only hope the Supreme Court is better than this.

There’s more than SB6 to watch out for

Keep an eye out for other anti-LGBT bills, because any of them might pass even if SB6 goes down.

With the media seemingly preoccupied by Lieutenant Governor Dan Patrick’s bathroom bill, three Republican state senators have quietly introduced a sweeping anti-LGBT “religious freedom” measure.

Senate Bill 651, filed last week, would bar state agencies that are responsible for regulating more than 65 licensed occupations from taking action against those who choose not to comply with professional standards due to religious objections.

Eunice Hyon Min Rho, advocacy and policy counsel for the ACLU, said SB 651 would open the door to rampant discrimination against LGBT people, women seeking reproductive health care and others. Rho said the bill could lead to doctors with religious objections refusing to perform medical procedures, teachers not reporting child abuse if they support corporal punishment, or a fundamentalist Mormon police officer declining to arrest a polygamist for taking underage brides.

“This is incredibly broadly written,” said Rho, who monitors religious freedom legislation across the country. “It’s just really alarming. There are no limitations to this bill.”

Rho said only one state, Arizona, has passed a similar law, but unlike SB 651 it includes exceptions related to health care and law enforcement. She also warned that anti-LGBT state lawmakers may be trying to use the bathroom bill as a distraction.

“I think because some of the bills are receiving more attention than others, it’s a way for them to sneak some stuff through with a little bit less fanfare,” Rho said. “This is a tactic we’ve seen in countless states.”

[…]

As of Thursday, nine anti-LGBT bills had been filed in the 2017 session, according to Equality Texas, compared to at 23 in 2015. But there were indications that additional anti-LGBT “religious freedom” proposals are coming before the March 10 filing deadline.

Take a look at that Equality Texas list, and if you’ve gotten yourself into the habit of calling your legislators, add the bad bills there to your recitations. There’s nothing subtle about any of this, but with SB6 taking up all the oxygen, there’s cover for those bills. They would allow discrimination of the Woolworth’s lunch counter kind, and they cannot be allowed to pass.

SB6 will hurt people

It will hurt transgender people, who despite what Dan Patrick would have you think, are people like you and me.

Lieutenant Governor Dan Patrick has said his so-called bathroom bill isn’t discriminatory because transgender people can update their birth certificates to reflect their gender identity.

However, statistics obtained by the Observer from the Department of State Health Services (DSHS) suggest that fewer than 1 percent of transgender Texans have updated their birth certificates, meaning the overwhelming majority could be forced to use restrooms that don’t match their gender identity under Senate Bill 6.

LGBT advocates said the DSHS statistics, which have not before been made public, underscore the obstacles transgender Texans face if they seek to correct their gender markers on state identification documents.

[…]

According to DSHS, a total of 497 Texas natives updated their birth certificates “to reflect a medical or surgical sex change” from 2006 to 2016. Last year, the Williams Institute at UCLA estimated that 125,000 transgender adults reside in Texas.

DSHS spokesperson Chris Van Deusen said the department doesn’t specifically track the number of transgender people who’ve corrected their birth certificates. However, in response to a request from the Observer, the state agency compiled the data based on how many people have updated their birth certificates using a court order.

“A court order is required to change the sex due to a medical or surgical sex change but not for a change due to an error,” Van Deusen said. “We’re reasonably confident this captures all changes to sex on birth certificates due to a court order.”

Texas has no standardized procedure for transgender people to update their birth certificates or driver’s licenses, and judges in only three of the state’s 254 counties — Bexar, Dallas and Travis — routinely issue court orders granting gender-marker changes, according to LGBT advocates. Last year, a Texas appeals court in Harris County rejected a trans man’s petition for a gender-marker change on his driver’s license.

There’s no standard procedure for updating one’s birth records. If you were born in another state, which may or may not even allow for this kind of correction, you may be out of luck. If you’re under 18, you are definitely out of luck. Even if all of these procedural issues could be resolved, this would still be discriminatory. Why should trans people have to go through all of this time and expense to be able to use a public restroom?

By the way, this is somewhat parallel to the experience of gays and lesbians before the Obergefell decision, in that in order to mimic the legal rights and protections granted under the law to straight married couples, they had to jump through dozens of legal hoops, often spending hundreds or thousands of dollars in lawyers’ fees to achieve it. Requiring a class of people to expend time and money on things that everyone else gets to have for free no questions asked is the definition of discrimination.

Trans people have been using bathrooms without any fuss for decades. It was never a problem until Dan Patrick decided it was one. His “remedy” to this non-problem will help no one, but it will hurt many people. There are lots of valid business and economic reasons to oppose SB6, and I thank the people in the business community who have helped lead the fight against it. But at the end of the day, this is about treating people as people. Dan Patrick wants to treat some people as something less. I cannot abide that.

State Supreme Court will take up same sex marriage appeal

Somehow, this wasn’t the worst thing that happened yesterday.

After pressure from Texas GOP leadership, the all-Republican Texas Supreme Court on Friday reversed course and agreed to take up a same-sex marriage case.

Despite the U.S. Supreme Court’s legalization of same-sex marriage in 2015, the state’s highest civil court will reconsider a Houston case challenging the city’s benefits policy for married same-sex couples. The court had previously declined to take up the case on a 8-1 vote, letting stand a lower court decision that upheld benefits for same-sex couples.

But Texas Republicans looking to narrow the scope of the landmark ruling legalizing same-same marriage urged the Texas court to reconsider. Gov. Greg Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton in October filed an amicus brief with the court asking them to reconsider the case.

Oral arguments have been set for March 1.

In asking the Texas Supreme Court to reopen the Houston case, state’s leaders also urged the court to clarify that the case that legalized same-sex marriage, Obergefell v. Hodges, does not “bind state courts to resolve all other claims in favor of the right to same-sex marriage.”

They argued that Obergefell does not include a “command” that public employers “take steps beyond recognizing same-sex marriage — steps like subsidizing same-sex marriages (through the allocation of employee benefits) on the same terms as traditional marriages.”

See here for the background. Hard to know what to make of this, but perhaps we’ll get a better idea at oral arguments. It rather goes without saying that the federal courts may take a dim view of any precedent-altering opinion from our Supremes. I’m going to hope for the best. The Observer, the Statesman, the Current, and the Chron have more.

It’s bill-filing season

And they’re off.

Today is the first day of early filing in the Texas Legislature. Lawmakers in both the House and Senate may begin filing the bills that will be discussed when the legislature convenes in January 10, 2017. So how does that work and what does it mean?

For the most part bills are numbered in the order they are filed. However House Bill 1 and Senate Bill 1 are reserved for the Appropriations Bill (the state’s budget) and the first several bills in each chamber are reserved for the Speaker’s priorities and the Lt. Governor’s priorities, respectively. Last session it was the first 40 bills in the House, so the first bill filed on early filing day was HB 41, and the first 20 bills in the Senate, so the first bill filed was SB 21.

There’s no real particular legislative advantage to filing on the first day. Once the session gets going and bills sent to committees they are typically referred in batches of a couple hundred. The House and Senate will send the few hundred bills filed today to committee in the first couple of days of referral and the dozen or so bills filed tomorrow will follow them the same day or the next. Since the chairs of committees have almost complete discretion about when to schedule bills for hearings, a bill filed today could easily be heard in committee after a bill filed tomorrow or three months from now – or not at all.

So why bother to traipse up to Austin to file a bill the first day?

The bills filed today aren’t an indication of what’s most likely to pass next session, but they are an indication of what will be the major topics of conversation. Today’s bills represent the top priorities for lawmakers – and, since every media outlet that covers the lege will run a “what got filed on the first day of early filing” article they are more so the top priorities of the lawmakers who really know how to capture the media’s attention.

That’s from Daniel Williams’ blog, and he has several other posts devoted to first-day filings. Daniel knows legislative procedures like Scott Hochberg knows school finance, so do yourself a favor and read his blog.

The Trib has a good rundown on what has been filed so far. There are actually a fair number that run the gamut from “not bad” to “really good”, though take heed of Daniel’s advice about how little Day One means. There’s also some demagoguery, and more than a few bills making a repeat attempt at passage, including such things as a statewide ban on texting while driving and a bill to authorize online voter registration. New hot topics include a bill to life the cap on special education enrollment, and a bill to authorize and regulate ride-sharing at the state level. There were more than one of those bills; the one that I’d keep an eye on is SB176 by Sen. Schwertner, who has been talking about this since the Austin rideshare referendum. His press release on the bill, which covers the basics of it, has some bombast over that referendum and a bit of BS about how local regulations of rideshare companies were restricting competition, but the bill itself seems reasonable enough. It’s not too hard to see the writing on the wall for this one, and all things considered this approach seems to be workable. Ask me again after it comes out of committee.

Anyway. There’s plenty more out there, and this is of course just day one. In the end, thousands of bills will be filed, and the vast majority of them will die a quiet death. There will be plenty to keep an eye on between now and sine die. The Chron, the Trib, Trail Blazers, Dallas Transportation, the Current, the Austin Chronicle, the Rivard Report, and Out in SA have more.

Republicans take their desperate shot at limiting same sex marriage

Pathetic.

RedEquality

After coming out on the losing end of a United States Supreme Court decision legalizing same-sex marriage, Texas Republican leaders are now looking to the Texas Supreme Court to narrow the scope of that landmark ruling.

Gov. Greg Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton on Thursday filed an amicus brief with the Texas Supreme Court urging the all-Republican court to reconsider a Houston case challenging the city’s benefits policy for married same-sex couples. It appears they’ve set their eyes on the Houston case as a way to limit the effect of the high court’s ruling.

The Texas Supreme Court has already had a say in the case challenging Houston’s benefits policy, which was extended to same-sex spouses of city employees. In a 8-1 ruling, the court in September declined to take up the case, letting stand a lower court decision that upheld the benefits for same-sex couples.

In asking the Texas Supreme Court to re-open the Houston case, state’s leaders in their brief also urged the court to clarify that the case that legalized same-sex marriage, Obergefell v. Hodges, does not “bind state courts to resolve all other claims in favor of the right to same-sex marriage.”

In Obergefell, the U.S. Supreme Court in 2015 ruled that marriages between couples of the same sex cannot be prohibited by states, overriding Texas’ long-standing ban on same-sex marriage.

Abbott, Patrick and Paxton in their brief argue that Obergefell does not include a “command” that public employers “take steps beyond recognizing same-sex marriage — steps like subsidizing same-sex marriages (through the allocation of employee benefits) on the same terms as traditional marriages.”

See here and here for the background. I have no idea why they think the Supreme Court is any more likely to take this up now than the last time, but what do I know. And if this does somehow make it past the State Supreme Court, I have a feeling the federal courts will be there to swat it back down. I don’t even know what to say at this point, so go read this statement from Equality Texas about this fiasco. The Press and the Current have more.

Republicans join Woodfill’s ridiculous anti-spousal benefits crusade

Shoveling sand against the tide.

RedEquality

Fifty Republican members of the Texas Legislature have signed a court brief arguing that the same-sex spouses of government employees shouldn’t be entitled to health insurance and other benefits.

The “friend-of-the-court” brief was submitted Friday in a lawsuit brought by anti-LGBT activists against the city of Houston in response to then-Mayor Annise Parker’s decision to extend benefits to the same-sex spouses of city employees in 2013.

Last month, the Texas Supreme Court refused to hear the case, Pidgeon v. Parker, with only Justice John Devine dissenting. But Jonathan Saenz, president of the anti-LGBT group Texas Values, and former Harris County GOP chair Jared Woodfill have petitioned the nine-member court for a rehearing.

[…]

The brief argues that while the U.S. Supreme Court ruled in 2015 in Obergefell v. Hodges that same-sex couples have a right to marry, “nothing in that ruling compelled the taxpayers of Texas to pay for a vast array of benefits for same-sex spouses.”

“This Court has the opportunity to diminish federal tyranny and re-establish Texas Sovereignty,” the brief states. “The people have already spoken on the issue through the Texas Legislature. It would be a detriment to their constituents if this elected Court were to remain silent.”

LGBT advocates have said that under Obergefell, if a government employer offers any spousal benefits, it must offer them equally to same-sex and opposite-sex couples. They’ve also said they believe it is unlikely the state’s highest court will reconsider its decision.

See here for the background. The list of Republicans who signed on mostly includes the usual suspects, but there were a few names that disappointed me. Putting that aside, I have to ask, how does this even make sense? Does anyone really think that Obergefell will be interpreted as “OK, fine, you can get married, but you can’t get health insurance or be named the primary beneficiary of a retirement fund unless you get hetero married”? Forget about any cockamamie legal theory for this, what kind of person thinks this makes sense? (By the way, that cockamamie legal theory, as espoused by the one Supreme Court Justice out of nine that originally voted to rehear the appeal, is that hetero marriage counts for more and can be privileged by the state because of procreation; this argument was explicitly rejected by the federal courts and SCOTUS in the Obergefell case. So you can see what kind of a future this would have if it somehow got accepted here.) The Statesman 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.

More on Mississippi’s anti-LGBT law and the effect in Texas

Doesn’t look like we’re going to learn anything from the Mississippi experience.

RedEquality

Reeves’ ruling isn’t likely to deter Texas Republicans who have stated adamantly that Christians and others with sincerely held religious beliefs need extra protection when following their faith, particularly after the U.S. Supreme Court last year allowed gay marriage and the Obama administration earlier this year directed public schools to let transgender students use the bathroom and locker room that corresponds to their gender identity.

Texas Attorney General Ken Paxton has urged legislators to pass a series of targeted “religious liberty” bills, many of which mirror the Mississippi law, including:

  • Protecting small businesses from having to provide goods or services to same-sex couples.
  • Allowing judges to refuse to perform same-sex weddings.
  • Allowing government employees, such as county clerks who issue marriage licenses, to opt out of serving same-sex couples.
  • Exempting religious groups from nondiscrimination laws on hiring and housing.

Legislators can begin prefiling bills in mid-November for the 2017 session, which begins Jan. 10.

Paxton on Friday criticized Reeves’ ruling as “flawed and inconsistent with the Constitution.”

“The law in Mississippi simply affirms the freedom of Americans to peacefully live and work according to their deeply held beliefs, in accordance with the First Amendment. We look forward to the Fifth Circuit upholding that common-sense law on appeal,” Paxton said in a written statement.

[…]

Rebecca Robertson, legal and policy director for the ACLU of Texas, said Reeves’ opinion should send a clear warning to Texas legislators.

“Lawmakers shouldn’t enact laws that they know are constitutionally suspect,” she said. “We do have a history in America of trying to get around people’s constitutional rights and give discrimination the color of law. That is a really unfortunate history that we ought to be ashamed of and try not to replicate.”

If Texas tries to follow Mississippi’s lead, Robertson predicted a costly legal fight followed by a similar ruling.

“When a court says a law is not constitutional, and lawmakers try to do an end run around that, you are going to get a smack down from a federal judge,” Robertson said.

See here for the background. The ruling has yet to be appealed, so there’s no direct consequence for Texas yet. No question in my mind, it’s going to take repeated smackdowns for the message to sink in. Those smackdowns are going to have to come at the ballot box too if we really want to have a lasting effect. the best defense against bad laws being passed is electing people who won’t pass those laws in the first place.

From the “You can dish it out but you sure can’t take it” files

Poor baby.

RedEquality

After years of Texas trying to lure businesses away from other states, New York has struck back — with an ad that paints the Lone Star State as unwelcoming and discriminatory to the LGBT community.

The two-minute ad released by New York’s chief economic development agency highlights the Empire State’s principles of inclusion and equality, claiming these characteristics make it welcoming for all businesses.

Gov. Greg Abbott disputed the ad and pointed to New York’s taxes and regulations as a hostile business environment.

The ad begins against a backdrop of black-and-white video of the Statue of Liberty and immigrants at Ellis Island. A woman’s voice states, “For hundreds of years, New York state has stood as a beacon — a beacon that arose to welcome those unwelcome in other places.”

New York has opened its doors to the LGBT community when others have not, the ad continues. Headlines from newspapers around the country indicate Texas, North Carolina and Mississippi have pushed for discriminatory policies.

[…]

In 2013, former Gov. Rick Perry launched aggressive campaigns in New York, California and Illinois to attract businesses to Texas. In New York, he spent $1 million on TV advertisements that promoted the Lone Star State’s pro-business approach and strong economy.

Abbott has continued his predecessor’s work, even urging British businesses to declare independence on July 4 by moving to Texas.

You can see the video embedded at the Tribune link. First of all, if you’re going to aggressively market your own state as the best place ever for businesses to move to, then you have no grounds for complaint when another state does that to you. I mean, how wimpy is that? The proper response, if one is going to take this path, is to chuckle dismissively and pat New York on the head for being so adorable as to even try to keep up with us. This? It’s just weak. Or, as one of Greg Abbott’s favorite politicians (who, by the way, is from New York) would put it, SAD!

Also, too, and not to put too fine a point on it, but thanks to Greg Abbott and his Republican Party, there’s a whole lot of merit to this accusation, with more on the way next year. Abbott didn’t bother addressing the issue, because honestly what could he say? If we don’t want states like New York attacking us for being hostile to the LGBT community, then maybe we should try not being hostile to the LGBT community. It’s so crazy it just might work.

Mississippi anti-LGBT law struck down

This definitely has consequences for Texas.

RedEquality

A federal judge stopped Mississippi’s controversial “religious freedom” law Thursday night, minutes before it was set to take effect.

In a opinion that cited scripture and Mississippi’s segregationist past, U.S. District Court Judge Carlton Reeves said House Bill 1523, signed by Gov. Phil Bryant in April, was another unfortunate example of Mississippi trying to write discrimination into its laws.

“Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together. But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens,” Reeves wrote in his opinion.

For opponents of the law, Reeves’s ruling was a triumph over a bill that they believe used religion as a Trojan horse to sneak discrimination into state law.

“Our state legislature has no business passing a law that gives protections to one set of religious beliefs over another. When there is no separation of church and state, there is no freedom of religion,” Carol Burnett, a United Methodist minister in Biloxi and plaintiff in one of the lawsuits, said in a statement released after Judge Reeves’s opinion.

[…]

Attorney General Jim Hood, the only Democrat holding statewide office, said he will appeal Reeves’s decision earlier this week saying circuit clerk’s cannot recuse themselves from issuing marriage licenses to gays because, as Hood noted, the clerks were never parties to the suit.

But Hood said he’s undecided about whether he will appeal the decision handed down Thursday night. He said he he has major reservations about the merits of the lawsuit — and the origins of the law.

“I can’t pick my clients, but I can speak for myself as a named defendant in this lawsuit. The fact is that the churchgoing public was duped into believing that HB 1523 protected religious freedoms,” Hood said in a statement.

“Our state leaders attempted to mislead pastors into believing that if this bill were not passed, they would have to preside over gay wedding ceremonies. No court case has ever said a pastor did not have discretion to refuse to marry any couple for any reason. I hate to see politicians continue to prey on people who pray, go to church, follow the law and help their fellow man.”

House Bill 1523 singles out three “sincerely held” religious beliefs as worthy of protection: that marriage is between one man and one woman; that people should not have sex outside such marriages; and that a person’s gender is set at birth. The law protects from litigation anyone who speaks out against gay marriage or transgender individuals because of these beliefs.

It was the second time Reeves ruled against HB 1523 this week. In a separate decision Monday, Reeves indicated that he would invalidate the part that allowed clerks to recuse themselves from issuing marriage licenses to same-sex couples. But that ruling didn’t address any other aspects of the law, which was set to go into effect July 1. Private business owners, such as caterers, and other state officials, such as public school counselors, were still allowed to refuse marriage-related services to gay, lesbian and transgender Mississippians.

Thursday’s ruling, however, invalidates every facet of House Bill 1523. The two lawsuits it addresses, Barber v. Bryant and Campaign for Southern Equality v. Bryant III, took aim at the whole law by arguing it violated the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. These prohibit government from favoring one religion over another and one group of citizens over another, respectively.

“(House Bill 1523) said that those three religious beliefs and no others get preeminence in Mississippi, and if you share one or more of them then you essentially get a free pass to do whatever the hell you want, no matter how discriminatory or offensive it is to your gay and lesbian neighbors,” said Roberta Kaplan, lead attorney on the Campaign for Southern Equality lawsuits.

“And because it has those elements, it is clearly, in our view and Judge Reeves’s view, a violation of this fundamental principle, one of the principles our country really was founded on,” Kaplan said. “It can’t preference one religion over another, it can’t take sides in religious debate, it needs to stay neutral. And that’s exactly what this statute does, it’s kind of a classic establishment clause violation.”

You can see a copy of the ruling here. As Mark Joseph Stern writes in Slate, this is such a bad loss for anti-LGBT activists that it calls into question their entire post-Obergefell strategy. And that is relevant to Texas because as we know those forces have big plans for the next legislative session. I doubt this will make them seriously reconsider anything – as we well know, objective reality is not their strong suit – but it draws a clear roadmap for the plaintiffs and attorneys that will line up to challenge their efforts in court. If this does get appealed, that goes to the Fifth Circuit, so if they uphold Judge Reeves’ decision, it would apply to Texas as well. All in all, a very good thing. Link via Daily Kos.

Republicans gear up for full blown gay panic in 2017

You have been warned.

RedEquality

Still angry about the Supreme Court’s mandate, some conservative lawmakers hope that it is someday overturned. In the meantime, they expect to propose a series of what they call religious liberty bills to blunt its impact. Those efforts worry liberal advocacy groups — Steve Rudner, with Equality Texas, called them “backlash” to the marriage decision — who argue such legislation is discriminatory.

Both sides agree that last year’s landmark ruling ignited a debate over social issues in Texas that will demand the attention of the next Legislature.

Nationwide, celebrations greeted the Supreme Court’s decision to legalize same-sex marriage. But in Texas, whose longtime ban on same-sex marriage was overturned, some lawmakers made it clear that the debate was not over.

Lt. Gov. Dan Patrick quickly condemned the decision as federal overreach. Attorney General Ken Paxton declared “religious liberty” the next fight, charging that “the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely held religious beliefs.”

[…]

A year later, opposition to same-sex marriage for religious reasons has become the focal point of demands that the Texas Legislature act in response.

“I do think that it is very important that we don’t lose sight of the fact that part of religious freedom is that citizens do have that inherent right to not have to do things that put them at odds with their religion,” said state Rep. Cecil Bell Jr., R-Magnolia.

State Sen. Charles Perry, a Lubbock Republican who described the ruling as an “assault on family values,” expects that charge to be a focus when lawmakers convene next year.

“I’m not going to be surprised at whatever level on both sides this is attacked,” Perry said.

While Perry has not seen specific legislation, he hopes the Legislature addresses the rights of businesses to choose whom to work with — such as same-sex couples — and suggested “that’ll be one of the more contentious debates.”

Some laws have already passed: Before the Supreme Court decision last year, the 84th Legislature passed the Pastor Protection Act, which allows clergy members to refuse to conduct same-sex marriages. Some lawmakers have suggested more responses along those lines, such as allowing religious adoption agencies to refuse to place children with same-sex couples or granting tax accommodations to religious organizations.

Bell said he would not be surprised to see proposals to limit the abilities of cities to extend anti-discrimination protections to gay and transgender people. Lawmakers also expect to debate transgender people’s bathroom access.

Perry argues that the federal government has forced Texas to address the issue. “It will unfortunately take up time during the session,” he said. “I hate that, but at the end of the day, it’s important. The underlying principle here is that we had a Supreme Court that overran.”

You know how I feel about this. This is what the Republican Party in Texas is about. I hope the business lobby that has enabled them for decades is happy about it, because they’re going to spend another session trying to stop them from doing anything that will hurt the state and likely wind up losing in court. The rest of us need to be in on that fight as well. I don’t know what’s going to happen, but I do know what will happen if we let it, and it ain’t good.

On Dan Patrick’s hostility to the LGBT community

Ross Ramsey sums up the Dan Patrick tweetorrhea situation and tries to make sense of it.

Not Dan Patrick…yet

Lately, the lieutenant governor has been focused on transgender Texans and which bathrooms they should use — those of their identity or those of the gender listed on their birth certificates. His argument is that perverts — men, to be specific — will find their way into women’s restrooms and locker rooms if the lines that separate the genders are blurred by recognition of transgender rights.

Patrick is not alone in this. It’s a hot issue in conservative circles with recent flashpoints in Houston, where the city’s Houston Equal Rights Ordinance was voted down last year; in North Carolina, where the backlash against a state law has included canceled conventions, concerts and corporate relocations; and in Texas, where the Fort Worth school district’s policy accommodating transgender students raised Patrick’s ire and led him to call for new leadership at the school district.

Patrick was using social media as recently as last Friday to beat the drum on the bathroom policies in Fort Worth schools. He’s been pushing that school district on one hand while shaking the other at federal education officials whose policies line up with Fort Worth ISD’s.

And Patrick is a longtime foe of same-sex marriage. His mis-tweet on that subject — “MARRIAGE= ONE MAN & ONE MAN…” brought him some social media ridicule in February 2014, when he was running for his current job. He meant one man and one woman. His real point was in the next lines: “Enough of these activist judges. FAVORITE if you agree. I know the silent majority out there is with us!”

When the U.S. Supreme Court ruled bans on those marriages are unconstitutional, Patrick responded by asking the state’s top lawyer whether local officials could be forced to perform the ceremonies.

The lieutenant governor has a track record with the LGBT community. They have him marked as an opponent. He seems to have them marked the same way. Whatever else might be said about it, they don’t trust each other.

No wonder they read his Sunday morning post the way they did, assuming the worst. Their mutual history taught them to expect it.

I don’t disagree with Ramsey’s diagnosis, but the whole thing is so bloodless I feel like I’m reading about mannequins. This isn’t a dry policy dispute over tax credits or land use or what have you. It’s about people and their inclusion in society. To put it simply, Dan Patrick does not want LGBT people to exist. He wants them all to go back into the closet where he never has to see or hear or think about them again, or better yet to have their gayness or trans-ness prayed away. It doesn’t get any more fundamental than this. The article doesn’t convey that.

There’s another aspect to this that has to be said: Dan Patrick is wrong. He’s wrong on any number of levels, but most importantly he’s wrong as a matter of basic American values, in that “all men (sic) are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” We have been down this road many times in our history, to remind ourselves that “Life, Liberty and the pursuit of Happiness” apply to all of us, we continue down that road today, and we will still be on that road years from now. Look at it this way: In 20 or 30 years’ time, when today’s children are trying to explain our current events to whatever they’ll be calling the millennials of the future, will Dan Patrick be seen as a brave defender of America’s values, or will he be seen as another incarnation of Bull Connor? I know which outcome I’d bet on.

Paxton sues over Obama directive on transgender bathroom access

A more transparent publicity stunt you would be hard-pressed to find.

Best mugshot ever

Best mugshot ever

Texas, joined by 10 other states, filed a lawsuit Wednesday to stop a federal directive instructing school districts to let transgender students use the bathroom that corresponds with their gender identity, Attorney General Ken Paxton announced Wednesday.

Calling the Obama administration guidelines “outside the bounds of the constitution,” the McKinney Republican said that the state was taking action to protect a school district near the Oklahoma border that had passed a policy earlier this week requiring students to use bathrooms according to the gender cited on their birth certificates.

“Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy puts the safety of their students first,” said Paxton. “Unfortunately the policy placed them at odds with federal directives handed down earlier this month. That means the district is in the crosshairs of Obama administration which has maintained it will punish anyone who doesn’t comply with their orders.”

The other states in the lawsuit are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. Paxton said they had joined because the issue was of national importance.

“It represents just the latest example of the current administration’s attempt to accomplish by executive fiat what they couldn’t accomplish democratically in Congress,” he said.

The Obama administration guidelines stated transgender students have the right to use their preferred bathrooms in public schools because of Title IX, a federal statute that prohibits discrimination on the basis of gender at education institutions that receive federal funding. It does not have the force of law, though school districts could risk losing federal money if they do not comply.

Harrold superintendent David Thweatt, who joined Paxton at the Austin news conference, said his school board had passed the policy out of concern for the “safety, security, and dignity of the children.” None of the 100 students currently enrolled there identify as transgender, he said.

Concerns about the safety of allowing transgender people to access the bathrooms that correspond to their gender identities draw deep skepticism from LGBT advocates. With virtually no evidence of attacks coming from such policies in any states, they say, efforts like those ramping up in Texas instead serve to further stigmatize transgender people and perpetuate violence against them.

When asked Wednesday, neither Paxton nor Thweatt could point to instances where allowing transgender students access to the bathrooms that correspond to their gender identities had threatened anyone’s safety.

We all know why that’s true, right? Paxton had previously sent a letter to the feds asking for some “clarifications” on the directive, which was clearly some laying of groundwork for the lawsuit. It’s not the first time Paxton has expressed a deep interest in people’s potty usage, nor is he the first Republican to do so. To get some idea of how ridiculous this all is, Andrea Grimes digs in a bit:

Harrold ISD passed its policy, which according to Paxton makes “accommodations for special circumstances on a case-by-case basis,” on Monday. That’s two days ago. The Obama administration issued its guidelines nearly two weeks ago.

Apparently one of President Obama’s many skills is oppressing people from the past, using time travel. What a mighty coincidence that, on May 23, Harrold ISD, which says it has no transgender students, decided to pass a papers-please bathroom policy that affects none of its students. And then on May 25, Harrold just happened to become the lead plaintiff in an 11-state federal lawsuit against the federal government, arguing that guidelines Obama issued before Harrold even had a bathroom policy violate Harrold’s right to have whatever non-existent policy it wanted, two weeks before.

When I pressed the Harrold ISD superintendent on the curious timing of the policy’s passage, he responded: “We passed the policy because we believe in it. We think it’s necessary to protect the security and safety and dignity of children.”

Well, speaking of security and safety — from what, exactly? At Wednesday’s presser, reporters put pressure on Paxton to cite any examples of transgender people of any age doing harm to others in public facilities. Because it would be impossible, even for a great legal mind like Paxton’s, to present evidence for something that doesn’t actually happen, the AG spun questions back to familiar territory: defending the Constitution, bad Barack Obama, the evil fed, etc.

She documents the more recent previous cases of potty panic from the state GOP, which shows no sign of letting up. Think Progress adds on:

The entire lawsuit is based on a false premise. As Paxton explained at the beginning of Wednesday’s press conference, the federal government’s directives “open all school bathrooms to people of both sexes.” The lawsuit similarly suggests that the guidance requires that “persons of both sexes have a right to use previously separate sex intimate facilities.”

Drawing this conclusion requires both a deliberate misreading of the guidance and a rejection of who transgender people are. The letter issued earlier this month by the Department of Justice (DOJ) and Department of Education (DOE) specifically affirms that “Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.” It simply adds that when doing so, schools must allow transgender students to participate in accordance with their gender identity.

The Texas lawsuit doesn’t even use the word “transgender” except when quoting from other documents, and it uses scare quotes to mock the concept of “gender identity” throughout. After describing the guidance as a “massive social experiment” that runs “roughshod over commonsense policies protecting children and basic privacy rights,” it proceeds to layout an unrecognizable understanding of gender identity.

The suit also claims that the guidance requires “seismic changes” to how the schools operate, because they must allow students to “choose the restrooms, locker rooms, and other intimate facilities that match their chosen ‘gender identity’ on any given day.”

The notion that a gender identity can be chosen or that it can flipflop by the hour ignores the definition provided by the DOJ and DOE — that it is “an individual’s internal sense of gender.” The guidance also repeatedly refers to providing treatment that is “consistent” with students’ gender identity, something that could not be done but for the assumption that their identity is, in fact, consistent.

[…]

The lead counsel on the case is Austin Nimocks. Before working for Paxton, Nimocks was senior counsel for the Alliance Defending Freedom (ADF), where he helped them repeatedly lose caseschallenging marriage equality. ADF is behind multiple other lawsuits challenging the transgender guidance and has also persuaded schools to pass anti-trans policies like Harrold’s by promising to provide free counsel.

Despite the losing record Nimocks brings to the case, he may prevail at the district court level. The only judge on the bench in the federal district court in Wichita Falls, where Harrold ISD is located and where the suit was filed, is Judge Reed O’Connor. In 2014 and early 2015, when federal judges were ruling in favor of same-sex marriage across the country, O’Connor was one of the only judges — and indeed, one of the last judges anywhere — who ruled against it.

So there may be a step or two backwards before we can move forward. Though who knows, maybe it will be harder than even Ken Paxton thinks to get a judge to buy his mishmash of baloney and fact-free fearmongering. I look at it this way: The reason why the courts began ruling against same-sex marriage bans is that the argument against same-sex marriage ultimately boiled down to discredited studies claiming that children raised by same-sax couples did worse than other children, and a general animus towards the whole idea. The former couldn’t stand courtroom scrutiny, and the latter was ruled to be an insufficient cause for a law that targeted a class of people. This is a different kind of case here, since it’s the plaintiffs who are seeking restrictions, but I think this basic principle will eventually play out in the courts. There’s no justification for the anti-trans laws, and I am confident that the courts will, by and large, rule that way. It may yet take awhile, and Ken Paxton may get the legal victory to go with the political bonanza that he hopes to reap, but in the end I believe justice will prevail. The Chron, the Current, Trail Blazers, the AusChron, and the Press has more.

Supreme Court dismisses effort to dissolve state’s first same-sex marriage

I could be wrong, but I believe this closes the books on all the same-sex marriage litigation from last year.

RedEquality

The Texas Supreme Court on Friday tossed out Attorney General Ken Paxton’s effort to undo the union of the first gay couple to legally wed in Texas. The court-ordered same-sex marriage of two Austin women had occurred months before such unions were legalized by the U.S. Supreme Court.

In light of the U.S. Supreme Court’s landmark June ruling that same-sex marriage is protected by the U.S. Constitution, the state’s highest civil court dismissed Paxton’s request as moot.

The case dates back to February 2015 when Austin residents Sarah Goodfriend and Suzanne Bryant were legally wed after obtaining a marriage license from the Travis County clerk under direction from state District Judge David Wahlberg.

At the time, Texas’ constitutional ban on marriage was still in effect. But Wahlberg ordered Travis County Clerk Dana DeBeauvoir to issue the license under special circumstances because Goodfriend was diagnosed with ovarian cancer a year earlier. Wahlberg ordered the county to “cease and desist relying on the unconstitutional Texas prohibitions against same-sex marriage.”

Although Wahlberg’s court order was specific to the Austin couple, Paxton challenged the marriage before the Texas Supreme Court, which later blocked Wahlberg’s ruling to prevent other same sex couples from obtaining marriage licenses. A day after the couple wed, Paxton asked the court to overturn the order and void the marriage license to “avoid the legal chaos” that could arise.

See here and here for the background. Paxton had dropped his appeal of a similar case in July, after the Obergfell ruling; I had thought at the time that he’s also drop this one, but clearly he did not. Three of the Supreme Court justices were critical of the judge who granted the license and of the attorney who represented the plaintiffs, and I can see where they’re coming from on that, but in the end that didn’t matter. The marriage is valid, as it should be and should have been, and this is now a settled question. There are still plenty of battles to wage, but we can cross this one off the list.

I now pronounce you man and machine

Yeah, no.

Chris Sevier says he’s being denied his right to marry – his computer.

The persistent Tennessee lawyer – who has carried his challenge to same-sex marriage to courthouses across the nation – has filed a lawsuit in federal court in Houston saying he and his 2011 MacBook were rejected for a marriage license in Harris County.

He is suing the Harris County District Clerk, Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton, saying his 14th Amendment right to marry is being denied. Sevier has filed similar challenges for the right to marry a machine in Tennessee and Utah.

Paxton’s office, however, is asking U.S. District Judge Alfred H. Bennett to hit the delete button on the lawsuit.

His office filed court papers asking that the lawsuit be dismissed, arguing that the U.S. Supreme Court’s landmark Obergefell decision in June allowing same-sex marriage does not extend to man and machine.

“The right to marry one’s computer is not an interest, objectively, deeply rooted in the nation’s history and tradition such that it qualifies as a protected interest,” Paxton’s brief argued.

You will, I’m sure, be shocked to learn that the plaintiff is an activist who believes that same-sex marriage has “hijacked the Constitution”, whatever that means. I had thought it would be impossible to make an argument against same-sex marriage that is stupider than the “man on dog” and box turtle claims of the recent past, but clearly I was wrong.

Once again with “religious freedom” legislation

I have three things to say about this.

RedEquality

State Rep. Matt Krause, R-Fort Worth, says he plans to re-file legislation next session that would supplement the state’s existing law to allow business owners to refuse services to people whose lifestyles clash with their religious beliefs.

“Nobody should be forced to go against their conscience or religious beliefs,” he said.

One of the key principles upon which the country and state were founded is the protection of religious beliefs, he said.

But just like in the 2015 legislative session, Krause is expected to face opposition from groups in the state’s business community. Bill Hammond, president and CEO of the Texas Association of Business, said corporations would look to other states when it is time to relocate if Krause’s vision becomes a reality.

“You have to weigh the negative impact on Texas if this were to become the law of the land,” Hammond said. “It’s flustering to see.”

Krause said next legislative session, he again would seek to change the state constitution – which requires a two-thirds vote of the Legislature and voter approval at the ballot box, a much more difficult hurdle to clear than just the simple majority need to pass regular bills – because religious freedom deserves constitutional protection.

“I wanted to put it in the constitution to make it even stronger,” Krause said. “It is still something I think is very important.”

Hammond said the constitutional amendment would be harder to undo if a future legislature decided that the policy is harmful or discriminatory.

1. Of course a constitutional amendment would be harder to undo. That’s the reason why the 2005 Double Secret Illegal Anti-Gay Marriage amendment was pushed through. We could have gone decades before there was a two thirds majority in both houses to repeal that, and the same would be true for Krause’s anti-equality measure. The good news is that even at current levels, there isn’t a two-thirds majority of Republican legislators in either house (*), so the task of blocking it is eminently doable. Yes, there are a few Democrats out there who can’t be counted on – and yes, I’m looking at you, Sen. Lucio – but we only need to block it in one chamber, and the prospects of picking up at least a seat or two in the House are pretty good. So while the threat of ordinary legislation making it through is very real, the bar for a constitutional amendment is likely too high to clear.

2. Let’s be very clear about this: Despite what Krause and others like him my say, a right to systematically refuse service, housing, employment, or whatever else – the list goes on and on – to a group of people is a right to discriminate, and a right to discriminate against someone is a right to discriminate against anyone. And I’m sorry, but if your sincerely-held beliefs tell you that you must not treat some group of people as fellow human beings, then your sincerely-held beliefs are immoral and wrong.

3. Have I mentioned lately that the business lobby could put its considerable resources towards defeating legislators like Matt Krause and electing ones that better represent their interests? Because they totally could if they really wanted to. Perhaps the North Carolina experience will provide them sufficient incentive to do so.

Paxton’s hack hire

What else do you expect?

Best mugshot ever

Best mugshot ever

When Texas Attorney General Ken Paxton named Jeff Mateer as his new first assistant earlier this month, conservatives lauded him for a legal background that’s highlighted by his work on religious-liberty cases.

But Mateer’s background is drawing fire from those who champion gay rights and church-state separation, particularly since the Republican attorney general’s record already includes advising clerks that they could cite their faith as a reason to refuse to issue same-sex marriage licenses.

Mateer isn’t backing away from views that prompt those concerns, saying in a Friday statement to the Express-News, “It’s vitally important to ensure that the state is prohibited from interfering with the free exercise of religion and I look forward to defending these liberties in my new role.”

He quoted the late U.S. Supreme Court Justice William Rehnquist’s description of a wall of separation between church and state as a “misleading metaphor.”

Robert Salcido Jr., president of the League of United Latin American Citizens Council 22198 in San Antonio, wrote in an open letter to Paxton that Mateer’s appointment “presents the appearance the Texas Attorney General is moving the church into a public office. It further suggests your office is setting a course targeting the LGBTQ citizens of Texas to deny our civil rights gains.”

The council – which focuses on fostering positive communication between the lesbian, gay, bisexual, transgender, queer (LGBTQ) and Latino communities – “will monitor his actions and when necessary take appropriate legal action to protect our community,” Salcido wrote. “We will also ensure that the broader community around the state that is committed to extending civil rights to all Texans is informed of your office’s actions.”

The Texas Freedom Network, which describes its mission as monitoring the “far right,” and Americans United for Separation of Church and State said Mateer made an alarming comment during a 2013 speech.

“I’ll hold up my hundred-dollar bill and say, ‘For the first student who can cite me the provision in the Constitution that guarantees the separation of church and state verbatim, I’ll give this hundred-dollar bill. … It’s not there. … The protections of the First Amendment protect us from government, not to cause government to persecute us because of our religious beliefs,” he said then, according to the network.

Kathy Miller, network president, said in a statement last week that it is “deeply troubling to see the irresponsible appointment of a foot soldier in the culture wars who has explicitly argued that this key constitutional principle protecting religious freedom in America is essentially a myth.”

The Observer reported on this last week. Look, we know who and what Ken Paxton is, and we know what he’s about. All he cares about are primary voters and making sure his conservative credentials are sufficiently burnished to ensure that none of his colleagues feel the need to distance themselves from him. It’s the main thing he’s good at. TFN has more.

One State Bar complaint against Paxton dismissed

A little bit of good news for our embattled AG, but not much.

The State Bar of Texas has dismissed one of two pending complaints against Attorney General Ken Paxton.

The dismissed complaint, filed in February by attorney and blogger Ty Clevenger, requested that the bar investigate and penalize Paxton for his failure to register as a financial adviser while steering business to a friend’s investment firm.

[…]

In a letter explaining the move, Assistant Disciplinary Counsel Rita Uribe said the bar dismissed the complaint because “it is the subject of a pending criminal complaint.” If Paxton is convicted, she added, he will be “subject to compulsory discipline.”

Here’s Clevenger explaining why that is unsatisfactory to him.

Best mugshot ever

Best mugshot ever

As I explained in my February 11, 2016 blog post, my grievance against Mr. Paxton had far less to do with Mr. Paxton than the state bar itself.  Time and again, I’ve watched the state bar protect politically-connected attorneys, some of whom have committed serious crimes. And now the practice continues.

According to a March 9, 2016 letter from OCDC, my grievance was dismissed because the allegations are “the subject of a pending criminal case against [Mr. Paxton].”  But as I noted in the appeal that I filed this morning, nothing in the disciplinary rules prevents OCDC from prosecuting attorney misconduct charges concurrently with criminal charges.

On the contrary, “[t]he processing of a Grievance, Complaint, Disciplinary Proceeding, or Disciplinary Action is not, except for good cause, to be delayed or abated because of substantial similarity to the material allegations in pending civil or criminal litigation.” Texas Rule of Disciplinary Procedure 15.02. Granted, a delay or abatement differs from an outright dismissal, but the spirit of the rule certainly implies that OCDC should not dismiss a case simply because a related criminal case is pending. In fact, the OCDC prosecuted my grievance against former Robertson County District Attorney John Paschall concurrently with the overlapping criminal charge.

Under normal circumstances, however, the OCDC will not prosecute a politically-prominent attorney. In this case, the OCDC dismissed a grievance filed by Erica Gammill against Mr. Paxton in 2014 because that grievance supposedly failed to state a disciplinary violation (even though Mr. Paxton had already admitted his guilt in writing and under oath).  After Mr. Paxton got indicted for the very same allegation, I re-filed Ms. Gammill’s grievance along with a copy of the indictment.

And now the OCDC refuses to investigate because a criminal case is pending, which makes this a classic Catch 22.  If you file a grievance against a politician lawyer before he gets indicted, the state bar will dismiss the grievance — no matter how damning the evidence — on the grounds that you failed to state a violation. But if you file the grievance after he gets indicted, then the state bar will dismiss your grievance because a criminal case is pending.  Is it any wonder that my profession has such a miserable reputation?

There are good reasons for prosecuting the cases concurrently. First, the burden of proof differs between a disciplinary charge and a criminal charge. If the special prosecutors fail to prove Mr. Paxton’s guilt beyond a reasonable doubt, the OCDC might nonetheless prove him culpable on the preponderance of the evidence. Second, the four-year limitations period for a disciplinary charge will expire this summer, i.e., before Mr. Paxton’s criminal case goes to trial.  Maybe the Board of Disciplinary Appeals will do the right thing and reverse the OCDC, but the board sided with the OCDC the first time it buried this case.

I’d be very curious to hear what the attorneys who read my blog think about this. In the meantime, there is another complaint pending against Paxton, having to do with his bogus “advice” to County Clerks on how to evade the Supreme Court ruling on same-sex marriage. That one isn’t tied to an indictment, and the Board of Disciplinary Appeals reinstated it after an initial dismissal. So maybe one way or another the State Bar will have to take action.