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July 1st, 2015:

Ready to engage in the next fight

No rest for the righteous.

RedEquality

On Monday, national and state gay rights leaders and the plaintiffs who sued for marriage equality convened in front of the Texas Capitol to make a different kind of vow: The fight for lesbian, gay, bisexual and transgender people is not over. The next frontier, they said, is pushing for more protections against discrimination in areas including employment and housing.

“In many states, including my home state of Ohio and right here in Texas, you can get married but then suffer consequences,” said Jim Obergefell, the lead plaintiff in the landmark case that legalized same-sex marriage. “You can get married and then lose your job, lose your home and so much more because we are not guaranteed nondiscrimination protections. … Friday’s historic ruling is a victory, but it’s just the beginning.”

Obergefell was joined Monday by a coalition of from the Human Rights Campaign, a prominent LGBT civil rights organization; Democratic state Rep. Celia Israel of Austin; Equality Texas; two same-sex couples who filed suit over Texas’ same-sex marriage ban; and others who announced that they would be part of a statewide campaign for nondiscrimination protections.

[…]

Texas is a huge part of a national strategy to pursue nondiscrimination ordinances because it’s the largest state in the country that offers no statewide protections for LGBT residents, Equality Texas executive director Chuck Smith said Monday.

Democratic proposals for statewide nondiscrimination laws have been non-starters in the Republican-controlled Legislature, where conservatives have tried to override local ordinances. Among opponents of the nondiscrimination ordinances are Lt. Gov. Dan Patrick and Gov. Greg Abbott, who as the former state attorney general said such ordinances violate freedom of speech and religion.

This has left Texas with a patchwork of local protections against discrimination in employment, housing and other public areas like buses and restaurants.

At least nine Texas cities with a population of more than 100,000 have passed some nondiscrimination rules or legislation.

[…]

In defending the need for more protections for LGBT residents, Mark Phariss, one of the plaintiffs in the Texas gay marriage case, likened those protections to the Americans with Disabilities Act that prohibits discrimination against people with disabilities like Abbott, who has used a wheelchair since he was paralyzed from the waist down in a 1984 accident.

At the time of his accident, Abbott was not protected against discrimination “as a result of that disability,” said Phariss, who attended law school with Abbott and said he visited him in the hospital after his accident.

“That has been fixed. The ADA now provides protections for Americans who are disabled, just like Greg, from being discriminated against in their workplace and in public accommodations,” Phariss said. “And that is the exact same protection that we seek for ourselves — nothing more, nothing less.“

Of course, Abbott opposes the ADA, too. All of his accommodation needs have been met, so what does he care about anyone else? Enacting NDOs in more cities and eventually at the state and national level are important and need to be done, but as noted before there are other fights as well, including the birth certificate issue for adoptees and transgender folks, transgender issues in general, and just making sure the laws that are on the books now, including marriage quality, get enforced. Towards that end, Sen. Rodney Ellis sent a letter to the DOJ.

Sen. Rodney Ellis, D-Houston, on Monday sent a letter to U.S. Attorney General Loretta Lynch asking the department to “monitor the implementation of Obergefell and intervene, if necessary, to ensure that Texas officials do not flout the Supreme Court’s ruling and blatantly discriminate against same sex couples.”

[…]

In his letter, Ellis blasted Paxton for the guidance and said “religion must not be relied upon as an excuse to discriminate and refuse to fulfill the duties of government taxpayer-funded jobs.”

“Where does this end?” he asks. “Will judges be able to argue that they should not have to recognize or authorize divorces if it offends their religious sensibilities? Could a judge refuse to sentence a defendant to the death penalty under his or her belief that ‘thou shalt not kill’ means just that?”

A copy of Sen. Ellis’ letter is here. Slippery slope can be tendentious and sometimes ridiculous, but when the state’s top lawyer encourages local officials to ignore a Supreme Court ruling, it’s hardly unfair to ask these questions. And nothing would make me laugh harder than having DOJ observers camp outside Ken Paxton’s office. All Paxton needs to do to make this go away is promise to obey the law. That may be tricky for a guy with Paxton’s past history to promise, but it is what he needs to do.

SCOTUS gives polluters a win

Alas.

Martin Lake coal plant

Martin Lake coal plant

t emissions of mercury and other hazardous air pollutants, but it may only be a temporary setback for regulators.

The justices split 5-4 along ideological lines to rule that the Environmental Protection Agency failed to take cost into account when it first decided to regulate the toxic emissions from coal- and oil-fired plants.

The EPA did factor in costs at a later stage, when it wrote standards that are expected to reduce the toxic emissions by 90 percent. But the court said that was too late.

The rules, which took effect in April, will remain in place while the case goes back to a lower court for the EPA to decide how to account for costs, environmental advocates say.

They were supposed to be fully in place next year. The issue was whether health risks are the only consideration under the Clean Air Act.

[…]

Writing for the court, Justice Antonin Scalia said the EPA was unreasonable in refusing to consider costs at the outset. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito.

In dissent, Justice Elena Kagan said it was enough for EPA to consider costs later in the process.

“Over more than a decade, EPA took costs into account at multiple stages and through multiple means as it set emissions limits for power plants,” Kagan said.

She was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

The EPA said it is reviewing the court’s decision and will determine any appropriate next steps once a review is completed.

“EPA is disappointed that the Supreme Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance,” EPA spokeswoman Melissa Harrison said.

Indeed, more than 70 percent of power plants already have installed controls to comply with the rules, said Vicki Patton, an attorney at the advocacy group Environmental Defense Fund.

“EPA already has an economic analysis that it can rely on to demonstrate that the public health benefits of the standards far outweigh the costs,” Patton said.

See here and here for the background. I would obviously have preferred a win here, but at least the EPA will get another shot at this. As noted in the story and acknowledged by ERCOT, most power plants are already there, and there are (in Texas, at least) no new coal-fired plants about to come on line. As Vox explains, the national effect of this ruling is likely to be minimal as well.

That’s the only thing at stake here: how long these 22 plants get to keep spewing [hazardous air pollutants, HAPs]. That’s not nothing — especially to the vulnerable populations exposed to those toxic pollutants — but it amounts to a mopping-up operation.

You might note an irony here. The entire Supreme Court case is premised on the fact that [mercury and air toxins, MATS] regulations are “the most expensive ever.” Industry claims it’s outrageous that EPA didn’t consider these extraordinary costs, which it says could cause blackouts and destroy the power sector and leave the US a smoking ruin.

Oh, but, by the way, while we were debating this, the power sector went ahead and complied with the regulations. Notice any blackouts? Any big bankruptcies in the power sector? Any economic devastation? No. As usual with air pollution rules, when the power sector quits complaining and starts complying, the costs turn out to be much lower than anyone anticipated. This case was a fight over a question that’s already been settled by facts on the ground.

So there’s that. The bad news is that the coal-fired plants we have now in Texas are chock full of mercury and other toxins, which they release into the atmosphere every day. So every extra day we have to wait for the new rules means that much more poisonous filth in our environment. Isn’t that nice? Daily Kos, Kevin Drum, and Ed Kilgore have more.

One more holdout concedes

Hood County and its outspoken County Clerk bow to the inevitable.

Counties issuing same sex marriage licenses

A Texas county clerk said on Tuesday her office will issue marriage licenses to same-sex couples, reversing a previous decision that was based on religious objections.

Some counties in other socially conservative states such as Kentucky have declined to issue such licenses since the U.S. Supreme Court said on Friday the U.S. Constitution provides same-sex couples the right to marry. The controversy could result in a new round of lawsuits over gay marriage.

Katie Lang, clerk of Hood County, southwest of Fort Worth, said staffers will issue the licenses although she will not do so based on her Christian beliefs, which she believes are protected under the Constitution.

“I am grateful that the First Amendment continues to protect the sincerely held religious beliefs of public servants like me. That has not changed since last Friday,” Lang said.

Hood County will begin processing same-sex marriage applications when it receives the appropriate forms, she said.

Lang had previously drawn attention for her mule-headed defiance, so it’s a particular pleasure to see her cave. As both Somervell County Salon and the Dallas Voice note, she’s not exactly being honest about her earlier actions, but at this point I don’t care. The point is that her office is doing its duty. Everything else is details.

Overall, we’re not quite at half of Texas counties being in compliance, but the vast majority of people live in a county where a same-sex marriage license is now available.

The Austin-based group Equality Texas has been tallying Texas counties that have confirmed they are issuing the newly legal marriage licenses, and the number as of Tuesday afternoon was 115. It’s an inexact count, but it lines up with a tally taken by the Dallas Morning News on Friday.

Project coordinator and Equality Texas legislative specialist Daniel Williams said that doesn’t mean none of the remaining 139 counties are issuing licenses — only that a substantial number are not.

“For the most part, there seems to be confusion about how to do it,” Williams said. “In some cases the counties have data systems that have to interact with the [federal] Bureau of Vital Statistics forms, and they’re having difficulty getting the systems to line up.”

When the Houston Chronicle called around to about a dozen county clerks, many echoed that conundrum. Seven counties were still waiting on software updates, and they relied on a variety of manufacturers, both in and out of state, who they said were working with a severe backlog because of the quantity of requests for updated digital forms.

“Some counties were prepared for this and some were overwhelmed and were taken unaware,” Williams said.

Many depend on software products from Plano-based Tyler Technologies or San Antonio-based Property Info, and are waiting on the companies to issue updates.

Officials in Hill County, north of Waco, said they were waiting on an updated design for their physical marriage license from Wichita Falls-based Bear Graphics. None of the three companies was immediately available for comment Tuesday.

However, even counties waiting on products to issue same-sex marriage licenses said they would be ready as soon as possible. Most estimated they’d be ready within days. Some predicted early next week.

The embedded image is from Williams’ Facebook page. As of last night, with Hood County in the fold, the count was at 117, covering 84% of the state’s population. At this point I’m not aware of any other Lang-level disobedience – it’s all just waiting for the upgrades, which may or may not reflect a certain amount of disorganization or unpreparedness, but at least isn’t willfulness. My guess at this point would be that by this time next week we should be at or pretty close to full compliance. Stay tuned.

HBU contraceptive coverage decision overturned

Good.

The U.S. Court of Appeals for the Fifth Circuit has turned back a challenge brought by several Texas religious organizations that oppose offering insurance contraceptive coverage to their employees, concluding that the plaintiffs have no right to challenge the conduct of third parties.

The recent decision also found that U.S. Supreme Court’s controversial 2014 Hobby Lobby decision was of “no help” to the plaintiffs, which included East Texas Baptist University and the Catholic Diocese of Beaumont, among others. That 5-4 high court decision held that corporations opposed to offering contraceptive coverage to their employees are exempt under the Religious Freedom Restoration Act [RFRA].

[…]

In his decision, Judge Jerry Smith wrote that the Fifth Circuit was joining several other circuit courts in finding that the ACA’s contraception coverage mandate doesn’t present a substantial burden to the plaintiffs’ religious freedom.

“Although the plaintiffs have identified several acts that offend their religious beliefs, the acts they are required to perform do not include providing access to contraceptives. Instead, the acts that violate their faith are those of third parties,” Smith wrote, reversing the trial court decisions in the cases.

“Because RFRA confers no right to challenge the independent conduct of third parties, we join our sister circuits in concluding that the plaintiffs have not shown a substantial burden on their religious exercise,” Smith wrote.

While the plaintiffs complain that sending in a notion of opposition will authorize or trigger payments for contraceptives, that is “not so,” wrote Smith, who explained that “the ACA already requires contraceptive coverage.”

Smith also noted that the Hobby Lobby decision mentions that certain religious organizations have already been “effectively exempted” through the ACA’s accommodation.

“Thus, Hobby Lobby is of no help to the plaintiffs’ position, and the requirement to offer a group health plan does not burden their religious exercise,” Smith wrote.

See here for some background, and here for a copy of the opinion. As Think Progress reminds us, Judge Smith is a very conservative Reagan appointee who is a reliable vote against abortion rights, so it’s not a case of getting lucky with the three-judge panel. The full circuit may be asked to review this, and it will certainly go to SCOTUS, though as RH Reality Check notes, every appeals court so far has sided with the feds on this. So there’s some hope that the dreadful Hobby Lobby decision will not expand any farther in scope. Hair Balls has more.