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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.

Feds officially file appeal in transgender bathroom directive lawsuit

This may be the last stop.

With two weeks left, the Obama administration has asked a federal appeals court to throw out a lower court’s decision that suspended policies designed to protect transgender people’s access to restrooms — a sign the current leadership of the Justice Department will close shop mid-fight on one of its signature LGBT issues.

Federal lawyers said in a brief filed Friday with the US Court of Appeals for the Fifth Circuit that the previous ruling was incorrect and overly broad.

[…]

With their remedies waning in the lower court — and time running out — the Justice Department’s Civil Division made three arguments to the Fifth Circuit.

The Justice Department said the case is not ripe for judicial review because the government did not violate the Administrative Procedure Act, as Texas and the other states claimed. The guidance for schools and workplaces are not final acts by any agency, the appeal says, and therefore did not require a rule-making process under the APA.

Federal lawyers further contend the states lack standing to bring the case because they “can ignore [the guidance] without legal consequence.” They note that enforcement stems from civil rights laws, not the guidance itself. In the past, the states have bristled at that argument, noting in briefs and oral arguments that the government cited the guidance when threatening to sue school districts that banned transgender students from certain facilities.

Finally, the Justice Department argues that the lower court, under Judge O’Connor, erred by ruling too broadly. O’Connor did so by in applying the injunction nationwide, rather than just within the states that brought the lawsuit, the government lawyers say.

See here and here for the background. As Kerry Eleveld notes, Judge O’Connor cited the fact that this directive did not go through the federal rule-making process in his injunction against it, but other directives, including the health directive that O’Connor also injuncted, did go through that process. As always, it sucks to have to depend on the Fifth Circuit for anything, but there’s not much choice. We’ll see what happens.

Feds to appeal transgender bathroom directive

Good.

RedEquality

The U.S. Department of Justice (DOJ) plans to appeal a Texas judge’s injunctionbarring the Obama administration from implementing guidelines aimed at protecting transgender students against discrimination.

DOJ attorneys announced in court documents Friday that they’ll file formal notice that they’re appealing the injunction to the 5th U.S. Circuit Court of Appeals on or before October 20.

U.S. District Judge Reed O’Connor issued the nationwide preliminary injunction in August, in response to a request from the Texas Attorney General’s Office, which is challenging the guidelines on behalf of more than a dozen states.

“DOJ has a number of strong procedural arguments,” said Ken Upton, senior counsel at the LGBT civil rights group Lambda Legal. “It will be interesting to see what the 5th Circuit does.”

[…]

Upton said it could be March or April before the 5th Circuit rules on whether to overturn the injunction. But as soon as the notice of appeal has been filed, the DOJ can request that the injunction be placed on hold while the 5th Circuit considers the case — a request that could be granted within weeks. If the DOJ obtains a stay of the injunction, the Obama administration could resume implementing the guidance.

A request for a stay of the injunction would first have to go to O’Connor, who would be likely to deny it, Upton said. But the DOJ could then request a stay from the 5th Circuit and, if necessary, the U.S. Supreme Court.

“Given the way the injunction binds the government agencies and DOJ, I think there is a good chance they might get a stay,” Upton said.

After O’Connor issued the injunction, DOJ attorneys filed a motion requesting that he clarify its scope. O’Connor heard arguments on the motion September 30 but has not yet ruled. The DOJ had requested that O’Connor do so by October 3.

Upton said he believes Friday’s filing — in which the DOJ announced it plans to file a notice of appeal this week — was intended “to nudge the judge to rule on the clarification motion before their appeal time runs out on October 20.”

“I think you could call it a friendly reminder that if he doesn’t rule by Thursday he’s going to lose jurisdiction of the case and it’s going to the 5th Circuit as is,” Upton said.

See here for the background. On Thursday, they followed through.

Federal officials say they will ask the U.S. 5th Circuit Court of Appeals to overturn an injunction issued by Fort Worth-based U.S. District Judge Reed O’Connor. On Tuesday, O’Connor reaffirmed that his ruling blocking the guidelines applied nationwide, not just in the 13 states that filed suit against the federal government.

O’Connor issued the original ruling in August on the same day millions of Texas children headed back to school, preventing the federal government from enforcing the guidelines as the case went through the courts.

In a 38-page order, O’Connor sided with Texas and 12 other states challenging the federal directive, saying the “status quo” should remain in place nationwide until the court rules on the case, or a federal appeals court provides further guidance, because the administration had not followed proper rule-making procedure in crafting the guidelines.

O’Connor did not, however, rule on the merits of the case, noting “the resolution of this difficult policy decision is not … the subject of this order.”

See here for more on the affirmation that the ruling was intended to be nationwide. It’s always dicey having to put one’s faith in the Fifth Circuit doing the right thing, but this is where we are, and the stakes are high. I suppose even if the Fifth Circuit fails to stop the madness, another lawsuit in a different circuit might generate a conflicting opinion, which would force SCOTUS to get involved sooner than I’m sure it wants to. Trail Blazers and Daily Kos have 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.

UT will not push UIL on transgender athletes

Unfortunate.

Despite objections from LGBT advocates, UIL’s longstanding informal policy is set to become official August 1 — when it takes effect as an amendment to the league’s constitution.

The amendment, initially approved by UIL’s Legislative Council last year, wasoverwhelmingly ratified by representatives from member districts in February.

However, LGBT advocates hoped officials at the University of Texas at Austin, which oversees UIL, would veto the amendment since it appears to conflict with the school’s policy against discrimination based on gender identity.

UT-Austin officials confirmed they were reviewing the proposed UIL amendment in April, but university spokesman J.B. Bird indicated this month they have no plans to halt its implementation because underlying legal questions about accommodations for trans students remain unsettled.

Bird noted that Texas Attorney General Ken Paxton recently filed suit against the Obama administration over federal guidance saying public schools must allow trans students to use restrooms and other facilities “consistent with their gender identity.”

“I think that’s definitely causing the university to look very carefully at what’s happening around us … since we’re a state agency, and we have the state pursuing these actions ” Bird said.

Paul Castillo, a Dallas-based staff attorney for the LGBT civil rights group Lambda Legal, said that by allowing the UIL amendment to take effect, the university is violating Title IX of the U.S. Education Amendments, which prohibits discrimination based on sex in federally funded education programs.

The U.S. Department of Education has repeatedly said Title IX protects trans students.

“They are violating Title IX by sitting on their hands and waiting for litigation to play itself out,” Castillo said of UT. “They’re putting their own funds at risk, but beyond that, as a university system, they should take a stand.”

See here, here, here, and here for the background. All that is needed here is for UT, and by extension the UIL, the follow the guidelines of the NCAA and International Olympic Committee, and thus not violate Title IX. Clearly, we are going to have to do this the hard way.

Ken Paxton does not approve of transgender bathroom policies

Big surprise, right?

Best mugshot ever

Best mugshot ever

Texas Attorney General Ken Paxton on Tuesday issued an opinion saying the Fort Worth school superintendent who made headlines for formulating guidelines to accommodate transgender students exceeded his authority. Paxton also said that a portion of the guidelines instructing district employees not to out transgender students to their parents might violate state law.

Citing a part of the Texas education code, Paxton wrote that school district boards of trustees — not superintendents — are required to adopt policies while superintendents can only implement those policies “by developing administrative regulations.”

Attorney general opinions are not legally binding, and Paxton’s interpretation has no direct legal impact on the Fort Worth district.

[…]

The district has indicated that the board of trustees was not asked to vote on the policy because it is an “administrative guideline” — a policy that superintendents can implement without official board approval — that stemmed from a non-discrimination policy updated in 2011.

To ensure privacy of students, particularly in cases when the student has not disclosed gender identity status to a parent or guardian, Fort Worth ISD’s guidelines include a protection of privacy for transgender students, directing school personnel to only share information about the student’s gender identity and expression on a “need-to-know basis or as the student directs.”

In his opinion, Paxton indicated that portion of the guidelines violates state law to the extent that they “limit parental access to information about their child and operate to encourage students to withhold information from parents.” Policies dealing with “parental involvement with students’ gender identity choices” must be “addressed” by the school board before they are implemented, he said. He added that the guidelines “relegate parents to a subordinate status.”

In response to Paxton’s opinion, a spokesman for Fort Worth ISD said the district’s legal counsel was reviewing the opinion. “She will advise the superintendent as appropriate,” he added.

Scribner has stood by the guidelines and confirmed he will stay in his post. School board trustees have reiterated that they were in the loop on the policy change, with at least two saying they were surprised the issue had escalated.

Paxton was asked for this opinion by Dan Patrick, whose obsession with bathrooms is well established. I didn’t have a chance to read this opinion – which as we all know does not carry the force of law – when it first came out, but then thankfully John Wright spared me the need.

But nowhere in his nonbinding opinion does Paxton address the question of restroom use, and a closer review of the document reveals Patrick’s “victory” to be mostly hollow.

In the opinion, Paxton wrote that the guidelines violate state law by limiting when school officials can disclose a student’s gender identity to parents. However, FWISD representatives have already stated — in a brief to Paxton’s office cited in a footnote of the opinion — that they plan to revise the parental notification provisions to bring them into line with the Education Code.

David Mack Henderson, president of LGBT advocacy group Fairness Fort Worth, said Tuesday he expects those changes “will render General Paxton’s unenforceable opinion moot.”

Even before Patrick and other Republican lawmakers stormed into Fort Worth in April to call for Scribner’s resignation over the guidelines, school board Trustee Matthew Avila told the Observer that officials were likely to tweak the parental notification provisions, which LGBT advocates agree are on shaky legal ground.

“Generally, parents have a right to access their children’s information and control their upbringing,” Lambda Legal senior counsel Ken Upton said.

FWISD’s brief to Paxton’s office lists exceptions to this rule, including for child abuse investigations, and notes that a 2002 AG’s opinion determined there are “very narrow and unusual circumstances” in which student information can be withheld from parents. FWISD’s brief states that “absent such circumstances, District personnel involve parents in all student matters, including gender identity issues.”

With regard to a second question posed by Patrick, Paxton found that Scribner violated the Education Code by implementing the Transgender Guidelines without a vote from the school board — but only in the context of the parental notification provisions, which account for roughly four paragraphs of the eight-page document.

“While a superintendent is authorized to recommend policies to be adopted by the board, chapter 11 requires that policy decisions, like those addressing parental involvement with students’ gender identity choices, be addressed by the board of trustees prior to the development of any related administrative regulations,” Paxton wrote.

FWISD officials have said Scribner acted within his authority to implement the guidelines because they are an extension of the district’s 2012 nondiscrimination policy, which includes gender identity. The Education Code gives superintendents the authority to “ensure the implementation of the policies created by the board.”

So there’s less to this than meets the eye. Mostly, it’s an invitation for someone who has a kid in FWISD to file a lawsuit, much as Paxton has filed a lawsuit against the feds over their advisory on bathroom access. I firmly believe that in the end forces of darkness and cowardice like Paxton and Patrick will lose, but it will not be quick or easy getting there. There will be setbacks, and people will be hurt along the way. The only message these guys will ever comprehend is at the ballot box. Trail Blazers, Texas Monthly, and the Current have more.

Lawsuit filed against North Carolina anti-equality law

That was fast.

It took only one day for North Carolina’s legislature to pass the country’s most sweeping anti-LGBT bill (HB2), and only four days after that for Lambda Legal and the ACLU of North Carolina to file a lawsuit challenging it.

The suit takes direct aim at the law’s ban on transgender people using bathrooms that match their gender identity by highlighting the experiences of two transgender men, Joaquín Carcaño and Payton Grey McGarry. A third plaintiff, lesbian Angela Gilmore, further challenges the other anti-LGBT provisions in the law. All three are part of the state university system in some capacity.

Carcaño works for UNC-Chapel Hill’s Institute for Global Health and Infection Disease, while McGarry is a full-time student at UNC-Greensboro. Both have undergone hormone therapy and regularly use the men’s restrooms, which they would now be prohibited from doing under HB2. Because they both spend time in buildings with only sex-segregated restrooms, this creates a real obstacle.

“Using the women’s restroom is not a viable option for Mr. Carcaño, just as it would not be a viable option for non-transgender men to be forced to use the women’s restroom,” the suit explains. “Forcing Mr. Carcaño to use the women’s restroom would also cause substantial harm to his mental health and well-being. It would also force him to disclose to others the fact that he is transgender, which itself could lead to violence and harassment.”

Additionally, “The idea of being forced into the women’s restroom causes Mr. Carcaño to experience significant anxiety as he knows that it would be distressing for him and uncomfortable for others. He fears for his safety because of the passage of HB2.” McGarry expresses similar concerns.

As a result, both Carcaño and McGarry would be significantly burdened. Carcaño would have to leave campus to find a local business with a men’s room or find a gender-neutral bathroom in another building, stigmatizing him and interfering with his ability to perform his job duties. Likewise, McGarry would have to find single-use restrooms outside the buildings where he has class, which would “disrupt his ability to attend class and would interfere with his educational opportunities.”

Because North Carolina law does allow transgender people to change their birth certificate if they’ve undergone sex reassignment surgery, there is room under HB2 for transgender people to legally access bathrooms, but that exception does not work for either plaintiff. Such surgeries “may not be medically necessary, advisable, or affordable for any given person,” the suit notes, adding that for McGarry, “surgery is not medically necessary for him.”

As an associate dean at North Carolina Central University, Gilmore and her wife also face consequences. The suit notes that because they have the same first name, they often have to disclose their lesbian relationship. They often travel to Charlotte and will now no longer be protected by the city’s sexual orientation nondiscrimination protections, which HB2 preempts. In regards to the claims that HB2 makes bathrooms safer, the suit also notes, “As a non-transgender woman who always uses the facilities designated for women in both public and private spaces, the passage of H.B. 2 does not make Ms. Gilmore feel safer in these facilities.”

See here for the background. As the story notes, transgender men were the subject that no one discussed during the anti-HERO campaign in Houston last year. It’s good that they’re the focal point of this litigation, and as you can see from my embedded image, taking to social media to get their word out. There’s already been some backlash from the business community, enough to help spook the governor of Georgia into vetoing that state’s anti-equality bill, so with a bit of luck this may not only be the death of this awful law, it may also serve as a disincentive for other states to copy the idea. I hope. Daily Kos has more.

School districts vote to approve new UIL policy restricting transgender athletes

Unfortunate.

Despite strong opposition from LGBT advocates, representatives from Texas school districts have overwhelmingly endorsed a proposal aimed at barring transgender boys and girls from participating in athletics alongside their cisgender peers.

District superintendents and athletic directors voted 409-25 in favor of using birth certificates to determine student athletes’ gender, according to results obtained by the Observer through a request under the Texas Public Information Act.

The legislative council of the University Interscholastic League (UIL), the governing body for Texas high school sports, recommended the amendment in October, and district representatives’ ballots were due this month. According to UIL, if the amendment is approved by Texas Education Commissioner Mike Morath, it would take effect in August.

“Because of the very detailed process UIL goes through, it’s usually a pretty clear-cut decision by the time it gets to the commissioner,” said Debbie Ratcliffe, director of media relations for the Texas Education Agency.

LGBT advocates say the amendment runs afoul of the UIL Constitution and Title IXof the U.S. Education Amendments of 1972.

The UIL is part of the University of Texas at Austin, and its constitution prohibits the legislative council or member districts from passing amendments that conflict with UT policy, which bans discrimination based on gender identity.

Both the council and the districts “had a duty to reject the amendment,” said Paul Castillo, a Dallas staff attorney for the LGBT civil rights group Lambda Legal.

Meanwhile, the federal Department of Education has said Title IX’s prohibition against sex-based discrimination applies to trans students, meaning the amendment could expose districts to legal liability, a federal investigation and loss of funds.

“These discriminatory athletic policies, they stigmatize transgender students by singling them out,” Castillo said. “Transgender students already face high rates of physical and verbal harassment at schools.”

See here for the background. It’s just a matter of time before a lawsuit gets filed over this, and I don’t know what the response will be if and when Title IX funds get threatened. I just hope it doesn’t get too messy or expensive when the trouble starts and this thing needs to get fixed. The Trib has more.

Paxton asks to be excused from contempt hearing

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

Best mugshot ever

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

State Health Services department finally amends that death certificate

Good.

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the inbox and the febrile mind of Jared Woodfill:

RedEquality

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

Read Judge Millard’s order here.

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

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

Lawsuit for same sex benefits for state employees filed

It’s all about being proactive.

RedEquality

Sensing that state officials will be reluctant to comply with a potential U.S. Supreme Court ruling in favor of same-sex marriage, an LGBT civil rights group filed a federal lawsuit Thursday seeking to force Texas to provide equal benefits to the same-sex spouses of public employees.

Lambda Legal filed the suit on behalf of Deborah Leliaert and Paula Woolworth against the board and executive director of the Employee Retirement System of Texas, in U.S. district court in Austin.

Leliaert and Woolworth, who live in Denton County and have been together 14 years, were married in California in 2008. Leliaert serves as vice president for university relations and planning at the University of North Texas.

After Woolworth retired, Leliaert sought to enroll her in spousal insurance benefits at UNT in 2014, but was denied by ERS, which told her that “spouse and participant cannot have the same gender.” The lawsuit alleges Texas’ same-sex marriage bans violate the guarantees of due process and equal protection under the U.S. Constitution. But Lambda Legal senior counsel Ken Upton Jr. indicated that with the high court expected to decide that issue later this month, the suit is designed to serve as an enforcement action.

“Many officials across the state, in various capacities, have signaled they will be in no hurry to comply with the [Supreme Court] decision,” Upton said, adding that some will undoubtedly look to Attorney General Ken Paxton for guidance. “A pending lawsuit against the board of trustees and the executive director of the ERS will give us the ability to get relief for all the public employees and their dependents immediately, instead of waiting for the AG.”

Upton said in addition to state employees, the lawsuit could bring equal benefits to public school teachers, since the Teacher Retirement System of Texas operates under the same laws.

“We asked, if we could bring one enforcement action that would have the greatest effect, what would it look like?” Upton said. “Texas is a large state. Denying employment benefits to public employees is the biggest bang for the buck we could think of in one lawsuit.”

Click the link to see a copy of the lawsuit. Waiting for Paxton to take any action is clearly a loser’s game, as Lone Star Q documents.

In a press release marking the signing of the so-called “Pastor Protection Act,” Paxton said the bill—which merely reaffirms existing protections under state and federal law—is “not enough.”

“We now have much more work to do to ensure that all Texans can practice their faith and, among other things, recognize traditional marriage without being punished, harassed or discriminated against for their beliefs,” Paxton wrote. “What about the wedding photographer, the event planner, the caterer, the bed and breakfast owner, cake baker or any other Texas small business owner who is threatened or sued for carrying out their work according to their faith? What about the religiously-affiliated adoption agency that believes it should only place a child in a home with traditional marriage? What about the private school that teaches traditional marriage but is told it is an ‘issue’? Will that school lose its 501c3 tax-exempt status, as was suggested by the U.S. Solicitor General while arguing against traditional marriage in the Supreme Court?”

I’m not surprised by any of this. I suspect more than one lawsuit – probably a lot more than one – will be needed, but this is as good a place as any to start.

What do we expect from the Fifth Circuit and SCOTUS on same sex marriage?

Some people are very optimistic.

RedEquality

Same-sex marriage will arrive in Texas before Easter, according to an attorney for two couples who are challenging the state’s marriage bans in federal court.

Daniel McNeel Lane Jr., of Akin Gump Strauss Hauer & Feld in San Antonio, made the prediction as he prepared for oral arguments in the case at the 5th U.S. Circuit Court of Appeals in New Orleans on Friday.

[…]

“I don’t think it will be stayed, certainly not by the Supreme Court, I don’t think it will be reviewed by the Supreme Court, and I think we’ll have marriage equality by Easter,” Lane told the Observer on Friday. “That’s my prediction. … That’s my strong feeling.”

On the same day as oral arguments at the 5th Circuit, the U.S. Supreme Court will meet to decide whether to hear same-sex marriage cases from four other states, which could pave the way for a nationwide ruling in favor of marriage equality as early as June. As of Tuesday, when same-sex marriage takes effect in Florida, Texas will be one of only 14 states where it’s still prohibited.

“Whatever the Supreme Court does, we will still make our arguments, the 5th Circuit is likely still to rule, and let the chips fall where they may. I’m sure that’s what our panel’s view will be,” Lane said. “The two will not be connected, and this court knows that if it affirms Judge Garcia, and finds that residents of this state have a right to marry the person they love, regardless of gender … it’s likely that that freedom, that equality, that justice, will come very swiftly, and the tide of that equality will never be turned back.”

Kenneth D. Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, which is handling the Louisiana marriage case, said marriage equality in the 5th Circuit before Easter is “certainly one possibility.” But Upton added, “There are a couple of things that could throw a wrench in that prediction.”

Upton said if the 5th Circuit panel rules in favor of marriage equality, it’s possible the state of Texas would appeal the decision to the 15-member court en banc—which would be “a more hostile setting.”

“I don’t think the panel would stay it, but if the 5th Circuit grants rehearing before the entire court, the panel decision is automatically vacated,” Upton said. “So, I suspect Abbott’s office would play that card since they have nothing to lose.”

Upton said the 5th Circuit panel could also simply decide to wait for the high court.

“If they [Supreme Court justices] grant any petitions, and because they aren’t staying cases anymore, I think any subsequent court of appeals case will be held to see what the ultimate answer is,” he said.

Lambda Legal has asked the high court to review the Louisiana case even though the 5th Circuit hasn’t decided it yet—a type of request that’s rarely granted but that will also be considered Friday. Upton said whether the Supreme Court agrees to hear the Louisiana case, one of the other four cases or some combination, he thinks Friday’s proceedings in New Orleans will be upstaged by what happens in Washington.

“The arguments in the 5th [Circuit] will not be the real story that day,” he said. “It will be [the Supreme Court]. I feel pretty sure they will grant something that day.”

That’s not all the Supreme Court is being asked to do.

Idaho’s governor and attorney general are asking the U.S. Supreme Court to make same-same marriage illegal in the state, nearly four months after a federal appeals court affirmed that it was unconstitutional for Idaho to prohibit same-sex couples from getting married.

Gov. Butch Otter’s petition, filed Tuesday, said the 9th Circuit Court of Appeals was wrong when it maintained that banning same-sex marriage violates couple’s equal protection under the Fourteenth Amendment. Otter asked the Supreme Court to take up the issue once and for all, saying the state’s ban on same-sex marriage was not about discrimination against gay couples — rather, it was about the children.

“[Idaho’s] view of marriage is biologically based and primarily child-centered,” the petition reads. “And it holds that the principal (though not exclusive) purpose of marriage is to unite a child to his or her biological mother and father whenever possible, and when not possible, to a mother and father.”

“The time has come for this court to resolve a question of critical importance to the States, their citizens and especially their children: Whether the federal Constitution prohibits a State from maintaining the traditional understanding and definition of marriage as between a man and a woman,” the petition reads.

SCOTUS will be busy today.

On Friday, Supreme Court justices will meet in private to consider whether to act on cases that could provide a nationwide answer on whether same-sex marriages must be allowed. On the same day, a federal appeals court will consider bans in Texas, Mississippi and Louisiana.

“It’s an incredible confluence of events,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “It’s the culmination of many years of work.”

[…]

The justices this week will be considering petitions from five states where lower-court judges, bucking a nationwide trend, upheld laws banning same-sex marriage and barring the recognition of such unions performed in states where they are legal.

In all but one case, even the winning side has asked the Supreme Court to accept the cases and settle the issue during its current term, which will conclude at the end of June.

Without explanation, the justices in October passed up that chance. But that was before a panel of the U.S. Court of Appeals for the 6th Circuit in Cincinnati ruled that there was no constitutional right to marriage that must be extended to gay couples and that states were free to define marriage as they wished.

Because four other regional appeals courts have ruled the other way, “the court is more likely to decide the issue now than when it denied review last October,” Kyle Duncan, a Washington lawyer defending Louisiana’s bans, said in an e-mail.

The Supreme Court does not have to announce its decision on the petitions Friday. But generally the justices must accept a case by the end of January in order to hold oral arguments and rule by June.

If they do not, same-sex marriages will probably remain legal in the majority of states through 2015 and banned in the rest.

Well, that ought to settle the “legal by Easter” matter quickly. I feel optimistic, but boy howdy are the stakes high. And as we’ve seen in the Legislature, there are still plenty of avenues available at this time for the forces of bigotry to roll back progress. We’ll see what happens. Hair Balls has more.

Republicans will push pro-discrimination bills

I have three things to say about this.

RedEquality

Two days after the Plano City Council approved an ordinance prohibiting discrimination against LGBT people, a Texas legislator filed a proposed constitutional amendment that would limit the ability of cities to enforce such laws.

On Wednesday, Rep. Jason Villalba (R-Dallas) filed House Joint Resolution 55, which is similar but not identical to Senate Joint Resolution 10, filed last month by Sen. Donna Campbell (R-New Braunfels).

Rep. Jeff Leach (R-Plano), one of several lawmakers who sent a letter to the Plano City Council opposing the nondiscrimination ordinance, also announced on Twitter Tuesday that he’s drafting a bill “to protect Texas business owners from unconstitutional infringements on their religious liberty.” As of Thursday morning, Leach’s bill hadn’t been filed, and he didn’t return a phone call seeking comment.

Nevertheless, a month before the session begins, the flurry of legislation suggests that, thanks in part to the legalization of same-sex marriage across much of the nation, conservatives will challenge gays rights in the name of religious freedom in the 84th Texas Legislature.

The resolutions from Campbell and Villalba would amend the Texas Constitution to state that government “may not burden” someone’s “sincerely held religious belief” unless there is a “compelling governmental interest” and it is the “least restrictive means of furthering that interest.”

Experts say such an amendment would effectively prevent cities that have passed LGBT-inclusive nondiscrimination ordinances from enforcing them. In addition to Plano, those cities include Austin, Dallas, Fort Worth, Houston and San Antonio.

That’s because business owners could claim exemptions from the ordinances if they have sincerely held religious beliefs—such as opposition to same-sex marriage—making it legal for them to fire employees for being gay or refuse service to LGBT customers.

“It blows a hole in your nondiscrimination protections if people can ignore them for religious reasons,” said Jenny Pizer, senior counsel at the LGBT civil rights group Lambda Legal.

But Pizer and others said an even bigger problem could be the amendments’ unintended consequences.

Daniel Williams, legislative specialist for Equality Texas, said in addition to the First Amendment, the state already has a statute that provides strong protections for religious freedom—known as the Religious Freedom Restoration Act, or RFRA. But Williams said the proposed constitutional amendments would supplant RFRA and go further, overriding exceptions in the statute for things like zoning regulations and civil rights laws.

[…]

Williams noted that similar resolutions from Campbell have failed in previous sessions. Amending the state Constitution requires two-thirds support in both chambers as well as a majority public vote.

“That’s a very high bar, and the Legislature’s a deliberative body,” Williams said.

But Williams said the key to defeating the legislation this go-round will be economic arguments.

“This would have a detrimental affect on businesses that are looking to relocate to Texas,” he said. “Businesses that want to relocate to Texas will think that their LGBT employees and the family members of their LGBT employees are not going to be welcome.”

1. Between equality ordinances, plastic bag bans, payday lender regulations, and anti-fracking measures, the obsession that Republican legislators may have this session with nullifying municipal laws may overtake their obsession with nullifying federal laws. I continue to be perplexed by this obsession.

2. We are all clear that these “freedom to discriminate” bills are, intentionally or not, also about the freedom to discriminate against Jews or blacks or whoever else you don’t like, right? I mean, every time they get pinned down on it, proponents of such bills admit as much. I don’t suppose it has ever occurred to the Donna Campbells of the world that one of these days they themselves could be on the receiving end of such treatment, if someone else’s sincerely held religious beliefs hold that antipathy towards LGBT folks is an abomination before God. I’m just saying.

3. Assuming Speaker Straus maintains the tradition of not voting, the magic number is fifty, as in fifty votes in the House are needed to prevent any of these travesties from making it to your 2015 ballot. There are 52 Democrats in the House, plus one officially LGBT-approved Republican, so there are three votes to spare, assuming no other Republicans can be persuaded to vote against these. We know that there are four current House Dems that voted for the anti-gay marriage amendment of 2005. One of them, Rep. Richard Raymond, has since stated his support for marriage equality. Another, Rep. Ryan Guillen, may be persuadable. The current position of the others, Reps. Joe Pickett and Tracy King, are unknown. Barring any absences or scheduling shenanigans, we can handle three defections without needing to get another R on board. This is the key.

(Yes, eleven votes in the Senate can also stop the madness. Unfortunately, one of those votes belongs to Eddie Lucio. I’d rather take my chances in the House.)

Unfair Park and Hair Balls have more.

What will the clerks do?

Some of Texas’ county clerks are making plans to accommodate same-sex marriage license applicants in the event that federal judge Orlando Garcia lifts the stay on his ruling that tossed out the state’s ban on same-sex nuptials. Some other clerks are planning to be jerks about it.

RedEquality

Jeff Nicholson, chief deputy for Tarrant County Clerk Mary Louise Garcia, a Republican, said Tuesday he consulted with the DA’s office about the issue after receiving an inquiry from a citizen.

“They advised us very explicitly that the lifting of the stay by Garcia in San Antonio, which is a different district than the one we’re in, doesn’t have any effect on us,” Nicholson told the Observer. “I think the DA’s position is here, until this is very clearly decided, that Texas law is Texas law, and we’re going to sit tight.”

Ken Upton, Dallas-based senior counsel at the LGBT civil rights group Lambda Legal, said clerks in other states, including Kansas and Missouri, have taken similar positions.

“I don’t think there is anything keeping them from issuing the licenses once the stay is lifted, but an argument could be made that they aren’t required to do so until it [the outcome of the case] becomes final,” Upton said.

Ken Upton is nicer about this than I would be. I think that’s a chickenshit move, and I’d be happy to see any clerk that refused to follow the law get slapped with a contempt of court charge. Judge Garcia’s ruling invalidated a provision of the state constitution, which last I checked applied to all of the state. And why are they consulting with the DA’s office? Are there no qualified civil attorneys available to advise the Tarrant County Clerk? Sheesh.

Fortunately, same-sex couples from Fort Worth will be able to obtain licenses in Dallas, where Democratic clerk John Warren said he’s prepared to issue them.

“You take an oath to uphold the law, and if the law changes, you’ve got to do it,” Warren said. “If the law says I can’t, then I won’t. If the law says I can, then I will.”

Republican Bexar County Clerk Gerhard C. “Gerry” Rickhoff said in addition to keeping his office open ’round-the-clock, he’s considering setting up tables in Main Plaza to accommodate same-sex couples. Rickhoff said he’s also lined up district judges to waive a 72-hour waiting period before ceremonies can occur, as well as officiants to conduct them.

“There’s a pent-up demand to stop these civil rights violations that are pretty evident,” Rickhoff said. “I would imagine they’ll be driving into San Antonio in droves, and that’s what we’re prepared for. Nobody will be turned away. We’ll work until there’s nobody left.”

Democratic Travis County Clerk Dana DeBeauvoir said her office will also be ready to extend its hours if Garcia lifts the stay.

DeBeauvoir said she’s also prepared to “flip the switch” on changes to a database that would replace “bride” and “groom” with “Person 1” and “Person 2.”

Now that’s the way you do it. Harris County Clerk Stan Stanart says he’ll ask the AG’s office for advice and will do what they tell him, which is slightly less weaselly than Tarrant County Clerk Garcia. I don’t know what Judge Garcia will say or when he might say it, but this is coming whether some squeamish bureaucrats are ready for it or not. Those that aren’t need to grow up and get with the program or get out of office.

Yet another lawsuit against Texas’ ban on same sex marriage

And then there were ten.

RedEquality

Texas now has at least 10 pending lawsuits challenging the state’s bans on same-sex marriage — believed to be the most of any state.

An Austin lesbian widow is the latest to challenge the marriage bans after her late partner’s family sought to exclude her from the estate — an all-too-common scenario in Texas.

Sonemaly Phrasavath says she and her wife, Stella Powell, were together for 10 years, according to a report from KXAN-TV.

They had a domestic partnership and planned to start a family when Powell was diagnosed with cancer last year. Powell died in June before they were able to notarize her will, but Phrasavath is now seeking to have their relationship recognized as a common-law marriage in Texas.

Phrasavath is represented by gay attorney Brian Thompson, a board member for Equality Texas.

[…]

The case is headed to court in January. Although it’s possible Phrasavath will get a favorable ruling from the probate judge, it’s also likely that Republican Attorney General Greg Abbott’s office would intervene and appeal the decision, as it has done in several other cases challenging the marriage bans.

And new AG Ken Paxton will pick up where Abbott leaves off. They’ll appeal and obstruct until they run out of options. Sonemaly Phrasavath and Stella Powell’s story is one of many being told on the new Texas for Marriage site that I wrote about yesterday. Lambda Legal has a description of the nine other current lawsuits involving Texas’ discriminatory law. Our state will be a much better place when that abomination is finally dead and buried.

Jared Woodfill sues again

Dude is obsessed.

RedEquality

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

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

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

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

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

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

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

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

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

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

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

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

Suing for same-sex death benefits

Married people receive death benefits when their spouses die. Unless your marriage isn’t recognized as legal by the state you live in. That’s the basis of this lawsuit.

RedEquality

An Austin woman filed a federal lawsuit Wednesday seeking to halt the Social Security Administration’s practice of withholding spousal benefits from gay couples who reside in states, like Texas, that ban same-sex marriage.

Kathy Murphy’s lawsuit argued that the practice perpetuates discrimination and unconstitutionally deprives same-sex couples of equal treatment under the law.

“With increasing frequency, state and federal executives and courts — including the United States Supreme Court — have recognized the patent discrimination and affront to dignity faced by same-sex couples whose families are denied the protections of marriage,” the lawsuit said.

Murphy and Sara Barker, Austin residents since 1984, were married in Massachusetts, where same-sex unions are legal, in 2010 after 30 years as a couple.

But after Barker died of cancer in 2012 at age 62, Murphy was denied spousal and death benefits because the Social Security agency determines whether couples are married based on the laws of the state where they live, not where they were married, according to the lawsuit, filed in U.S. District Court for the District of Columbia.

“SSA’s incorporation of discriminatory state laws tells same-sex couples living in those states that their valid marriages are unworthy of federal recognition and equal treatment,” said the lawsuit, filed by lawyers with Lambda Legal, a national gay-rights legal advocacy organization.

Texas Politics has a copy of the suit. There are three other federal lawsuits against Texas’ same sex marriage ban that have been filed and are still active in the courts. One is DeLeon v. Perry, in which the ban was ruled unconstitutional and is awaiting an appellate hearing from the Fifth Circuit. The other two were filed in Austin and are separate from DeLeon despite Greg Abbott’s efforts to combine them. I’m assuming the two Austin suits have been combined, but I couldn’t verify that. Yet another lawsuit, this one filed in state court and having to do with parental and custodial rights, also resulted in a ruling that declared Texas’ ban on same-sex marriage to be unconstitutional. That one is awaiting appeal in the state’s Fourth Circuit Court of Appeals. One would think this one would be straightforward given all that has gone on before it, but you never know. The one thing we do know is that Greg Abbott can’t wait to “just do his job”, which in this case involves defending the federal government. So ironic. Anyway, here’s Lambda Legal’s blog post and press release about the lawsuit, and Lone Star Q has more.

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

RedEquality

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

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

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

Next steps in the Texas same sex marriage lawsuit

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

Abbott inserts himself in Houston same sex benefits lawsuit

Not a surprise.

Still not Greg Abbott

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

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

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

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

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

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

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

City moves anti-same sex spouse benefits lawsuit to federal court

Interesting.

RedEquality

Mayor Annise Parker and the city of Houston have moved a lawsuit challenging same-sex benefits out of Republican Judge Lisa Millard’s court after she allegedly halted the benefits without giving the city proper notice.

City Attorney David Feldman filed a “Notice of Removal” on Friday saying the lawsuit belongs in U.S. district court instead of state court because it raises federal questions, including the guarantees of equal protection and due process under the U.S. Constitution. The notice of removal says Millard, who presides over the 310th State District Family Court, failed to notify Parker and the city before holding a hearing at 5 p.m. on Dec. 17 — the same day the lawsuit was filed — and issuing an order halting the benefits.

The plaintiffs in the lawsuit, Harris County Republicans Jack Pidgeon and Larry Hicks, allege the same-sex benefits violate the city’s charter and Texas’ bans on same-sex marriage. The plaintiffs are represented by Harris GOP chair Jared Woodfill, an attorney who has said the suit belongs in Millard’s court because it relates to statutes banning same-sex marriage in the Texas Family Code.

According to a legal expert, the notice of removal filed by the city on Friday automatically moves the case into federal court for the time being. To get it back in state court, the plaintiffs would have to ask a federal judge to remand it.

See here and here for the background. The story speculates, and I am inclined to agree, that the purpose of this maneuver is to get this lawsuit joined with the second lawsuit and deal with them both together. How that plays out, since the two lawsuits against the city are asking for the exact opposite things, will be something to watch. PDiddie has more.

Lambda Legal sues Houston over same sex spouse benefits

I didn’t see this coming.

RedEquality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

Lambda Legal challenges Texas Military Forces on benefits

Good.

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

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

[…]

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

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

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

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

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

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

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

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

How long before marriage equality comes to Texas?

As is so often the case, the state of Texas will lag behind the rest of the country on the issue.

On the right side of history

If DOMA is struck down, questions will be raised about states that don’t recognize same-sex marriages and if it matters where a couple lives to receive federal benefits, [Ken Upton, a senior staff attorney in the Dallas office of Lambda Legal, the national LGBT civil rights group] said. Those questions won’t be answered until after the decision has been handed down.

One thing is clear, though: Contrary to popular belief, a favorable DOMA ruling wouldn’t require states like Texas to recognize same-sex marriage.

“I’m not sure this is going to completely answer all the questions if the court takes it up, but it’s going to move us a lot further down the road,” Upton said. “In terms of marriage, it won’t have any affect on that. The Supreme Court’s decision in DOMA cases is not going to tell states they do or don’t have to marry someone. It’s just going to tell the federal government if you’re legally married, you have to recognize it.”

Texas and the other states with marriage amendments have two potential paths to marriage equality — repeal the bans before passing marriage equality legislatively or at the ballot box, or await a future Supreme Court ruling forcing them to recognize same-sex marriages.

Most advocates believe the court will force Texas along with other holdout states to recognize same-sex marriage in about a decade as more and more states legalize the practice.

Equality Texas Executive Director Chuck Smith said the likely outcome would be a majority of states approving same-sex marriage, leading Congress or the Supreme Court “to make a decision on a national level.”

“I don’t think it’ll be all that long,” Smith said. “I think it’s certainly probable within a five- to 10-year timeframe.”

Smith said Texas’ marriage amendment could be repealed, but it would take educating voters, as well as electing more politicians who support marriage equality. Repealing the amendment would require a two-thirds majority vote of both the state House and state Senate to place it on the ballot, then approval from a simple majority of voters.

“It is possible if there is intense, on-the-ground work convincing Texas that public opinion is on our side,” Smith said. “So it would be a significant amount of electoral change in order to legislatively change marriage in Texas. That’s not impossible, but it just takes work.”

I don’t think a legislative solution is likely to be viable. Don’t get me wrong, I’m happy that Rep. Garnet Coleman introduces a bill to repeal Texas’ awful Double Secret Illegal Anti-Gay Marriage constitutional amendment, but it’s precisely because this bit of bigotry has been enshrined in our state’s constitution that I don’t think it can be removed by the same means. I can envision a legislative majority on marriage equality during this decade if I’m feeling optimistic, but a two-thirds supermajority? Not in the foreseeable future, possibly not in my lifetime. The numbers are improving, but there’s still a long way to go. No, one way or another I believe it will be settled in a courtroom. My assumption has always been that when and if DOMA is struck down by the Supreme Court, sooner or later someone will file a lawsuit in Texas arguing that the state’s law discriminates against those who don’t have the wherewithal to travel to a more enlightened state to get married, and that this represents an unequal situation that cannot be allowed to stand. How long that might take – I assume it too would ultimately be decided by SCOTUS – I have no idea. But first things first. Let’s hope SCOTUS does the right thing on DOMA, and we’ll go from there.