When Mayor Parker announced that legally married same sex spouses would be eligible to be added to city employees’ health insurance plans, I was certain that there would be legal action taken against that decision. The Harris County GOP has now supplied the legal action.
The city of Houston’s recent policy change extending health and life insurance benefits to same-sex married couples is on hold after two Harris County Republicans, led by the county’s GOP chairman, sued the city and Mayor Annise Parker on Tuesday.
The lawsuit, filed in state district court by Houstonians Jack Pidgeon and Larry Hicks, claims the policy violates Houston’s city charter, the state’s Defense of Marriage Act and the Texas Constitution.
“This is one of the most egregious acts by an elected official I’ve ever seen,” said Jared Woodfill, chairman of the Harris County Republican Party. Woodfill is the lead lawyer on the lawsuit. “They just decided to, unilaterally, as a lame duck, thumb their nose at the will of the people and just spit on the U.S. Constitution.”
Woodfill said state District Judge Lisa Millard signed a temporary restraining order late Tuesday, halting the new policy until the matter goes before a judge on Jan. 6.
City Attorney David Feldman defended the new policy when it was announced in November and said Tuesday nothing has changed.
“We’re comfortable with our legal position,” he said. Feldman cited the U.S. Supreme Court’s ruling earlier this year overturning the federal Defense of Marriage Act, federal agencies’ subsequent decisions to recognize legal same-sex marriages and other relevant case law to support the legality of the policy.
Feldman said he expects the lawsuit to be thrown out because Pidgeon and Hicks do not appear to have legal standing since they are not directly affected by the policy.
Josh Blackman, a professor of constitutional law at the South Texas College of Law, said the men’s standing would have to be decided by a judge.
“You can only sue if you’re affected by a law, and generally paying taxes to the city does not give you standing,” he said. “But under Texas law, there are some cases where you can. This may be one of those cases.”
Woodfill said the Harris County Republican Party passed a resolution supporting the lawsuit before it was filed on Tuesday. He said he expects Pidgeon and Hicks will be able to challenge the policy.
“There’s an exception carved out for an illegal act, which is what the mayor has done here,” Woodfill said.
Texpatriate was first to blog this and to note that the judge had issued a temporary restraining order. Via his link to the Quorum Report you can see copies of the lawsuit and TRO. I do disagree with his connection of the judge’s granting the TRO with her lack of a Democratic opponent in November. I’m not naive enough to believe that judges are untainted by politics, but neither am I cynical enough to believe that taking politics into account is the expected default.
Beyond that, I see this as being basically the same as the state’s struthian legal strategy in the gay divorce case, which is to claim that legally married same-sex couples must check their rights at the state line. I suppose that could work at the state level, but given the SCOTUS ruling on DOMA and perhaps the federal lawsuit over Texas’ constitutional ban on same sex marriage, it’s hard to see that being viable for long. Politically, I do agree with Texpatriate that this is mostly about firing up the rubes but that it will be a net loser for the local GOP, in the short term future if not immediately. It is perhaps telling that AG and gubernatorial candidate Greg Abbott has so far stayed out of this, just as he backed off his threat to sue the city of San Antonio over its recently passed non-discrimination ordinance. Jared Woodfill can stamp his feet and hold his breath all he wants, but change is coming whether he likes it or not and sooner than he thinks. The Houston GLBT Political Caucus has a statement condemning the lawsuit, HCC Trustee Carroll Robinson and TSU poli sci prof Michael Adams predict a Houston victory in the litigation, and PDiddie, BOR, Hair Balls, John Coby, Texas Leftist, and the Observer have more.
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