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July 2nd, 2015:

Texas throws in the towel with the Fifth Circuit

Hallelujah.

RedEquality

The 5th Circuit should affirm a lower court ruling that overturned Texas’ long-standing ban on same-sex marriage, Scott Keller, the state’s solicitor general, wrote in a letter to the appellate court. That letter was in response to the appellate court’s request that the state and the plaintiffs advise the court on the next steps in the Texas case.

Citing the Supreme Court’s ruling, a three-judge panel of the 5th Circuit then affirmed a lower court ruling that the state’s ban is unconstitutional.

Same-sex marriage “is the law of the land and, consequently, the law of this circuit and should not be taken lightly by actors within the jurisdiction of this court,” wrote circuit Judge Jerry E. Smith, adding that the Supreme Court ruling also required the state to recognize same-sex marriages performed in other states.

[…]

Though it was clear that the Supreme Court would have the final word on the matter, the parties in the Texas case had hoped the 5th Circuit would still rule on their case.

But after the high court legalized same-sex marriage, the attorney for the Texas same-sex couples, Neel Lane, asked the 5th Circuit to affirm Garcia’s ruling and direct him to wrap up the case.

In a letter to the court, Lane wrote that Garcia’s final judgment should prohibit the state from enforcing the state statute that banned same-sex marriage, any related provisions in the Texas Family Code, and “any other laws or regulations prohibiting a person from marrying another person of the same sex or recognizing same-sex marriage.”

Additionally, Lane asked that the courts “take any and all steps necessary to enforce” that final judgment.

In siding with the same-sex couples, the 5th Circuit directed Garcia to enter his final judgment on the case by July 17.

The Fifth Circuit’s opinion is here. There wasn’t any actual doubt about how this would be resolved at this point, but this gesture does save everyone some time and energy. It also highlights just how much all that “saber-rattling” has been little more than posturing for the rubes. They know the gig is up, they just don’t want to have to say it out loud.

Other signs of progress:

A local woman who wed her partner in a same-sex marriage in Hawaii last year has legally changed her name in Nueces County.

Bridget and Molly Brundrett married in Hawaii last October because the Aloha State already recognized same-sex unions. When they returned to Corpus Christi, Molly tried to legally take her wife’s last name. She took her Hawaii marriage license to the local Department of Motor Vehicles to legally change her name but was turned away. She says a female employee at the DMV office even threatened to have her arrested if she didn’t leave.

That was last November.

Fast forward to this week — and it’s a different story.

Following the SCOTUS ruling on same-sex marriage last Friday, same-sex marriage is now recognized in Texas.

On Monday, the couple went to the DMV office off Interstate 37 with their Hawaii marriage license in hand and it was accepted. In fact, they say the DMV employees cheered for them.

“We actually walked up and she started applauding and cheering. It was like – oh my God, my first one! It was very moving. It was very sweet. They took our pictures,” said Molly.

That’s what marriage equality is all about – you get to have the same choices and options as anyone else. I hope this means that Connie Wilson can get her Texas drivers license, too. Congratulations, y’all.

UPDATE: The Fifth Circuit ruling applies to Louisiana and Mississippi too, though Louisiana Governor Bobby Jindal continues to be a jerk about it.

Outsourcing inmates again

We’ve been down this road before.

go_to_jail

For the first time in three years, the Harris County sheriff began transferring busloads of inmates this week to other correctional facilities to avoid overcrowding at the state’s largest jail.

The jail population is currently at 93 percent of its 9,434-bed capacity, Harris County Sheriff Ron Hickman said Monday. He said part of the problem may stem from two recent back-to-back storms with flooding that delayed magistrate courts and consequently stalled the release of some low-level offenders.

Hickman also indicated that judges who set monetary bail for inmates have influenced the rising numbers because 62 percent of the jail’s occupants are awaiting trial.

The fluctuating jail population, he said, is out of his control. “In large part, the jail population is controlled by the courts, who determine which offenders will be released pending adjudication and which will be detained until trial,” Hickman said.

[…]

Hickman said another round of storms and flooding could cause the jail population to climb again.

“A singular event, like another bad rain and floodwaters, would cause us to shut courts down which would back prisoners up on the capacity side of our storage, and we’d be in violation of jail standards again,” he said.

The sheriff said he had very few options for dealing with the high numbers.

See here for previous blogging on this topic. This may be a temporary situation exacerbated by all the damn rain we’ve been having, but we wouldn’t be in this position if the overall jail population hadn’t been trending up. If we want to avoid being vulnerable to the vicissitudes of the TDCJ and the weather gods, there are three things we can do.

1. Bail reform. There are too many people sitting in jail awaiting trial. Some of them belong there, but some of them don’t. Less onerous bail amounts, and more personal recognizance bonds, would solve this problem.

2. Expand Medicaid. OK, I know, there’s nothing Harris County can do about this, and our state leaders are a bunch of deranged lunatics on the subject. Be that as it may, as we well know the Harris County Jail is the country’s largest mental health hospital. Many of the people in the jail getting treatment for mental illness can only get that treatment when they are in jail. You know what would change that? If they had health insurance. How could they get that insurance? If they were eligible for Medicaid. We’ve been over this before, too. The state of Texas and it’s Republican-fueled refusal to expand Medicaid are a big cause of Harris County’s jail overcrowding. Every taxpayer in the county is paying for that.

3. Review and possibly expand the existing early release and ankle monitor programs that were put in place by then-Sheriff Garcia and the courts. Direct deputies to issue citations instead of making arrests for minor violations. None of these would likely be very big, but every little bit helps, and they are options that Sheriff Hickman himself has some control over. Surely that’s worth consideration. Hair Balls has more.

San Antonio wants a do-over on Uber and Lyft

Maybe the third time will be the charm.

Uber

Mayor Ivy Taylor said Friday that there’s a demand for transportation-network companies in San Antonio and signaled that she wants to work a new deal that would allow Uber and Lyft to restart operations here.

Taylor told the City Council during an all-day retreat that she has directed City Manager Sheryl Sculley to develop a plan for bringing the transportation-network companies, or TNCs, back to San Antonio while the council is on summer break next month. The council met for team-building Friday at Hardberger Park on the North Side.

“We’ve never wanted them to leave,” Taylor said in a Friday interview. “We’ve always wanted Uber and Lyft to be here.”

The ride-hailing firms, however, disagreed. After operating in San Antonio for about a year without regulation, the companies shuttered when the City Council approved policies that the companies found too onerous.

City officials thought they’d come to an agreement with the companies when they approved the updated ordinance, but unresolved concerns over how background checks on drivers would be conducted ultimately drove the companies out of town. The taxi industry lauded the council’s decision, saying “public safety” won the day.

[…]

Lyft

“I am directing the city manager to develop a framework for operating agreements which would allow for TNCs to return to San Antonio during a pilot period,” she said. “This framework will be brought to council for review the second week of August and action thereafter. I have asked Councilman (Roberto) Treviño to be the council representative during this process.

“It is important that we get this issue resolved soon, and I do not want the work to stop during the month of July. Safety will still be a top priority for all of us, and that won’t change.” she said.

Taylor said a data-driven discussion about the merits of the firms’ background checks had been missing from previous discussions. She said she wants to delve deeper into that.

Uber spokeswoman Debbee Hancock said Friday that company officials are looking forward to restarting discussions in San Antonio.

“We are heartened to hear that Mayor Taylor has made it a top priority to bring back ridesharing this summer,” she said. “And we are excited to continue working with the mayor and City Council to make this a reality.”

See here and here for some background. Bexar County Judge Nelson Wolff is a fan of Uber and Lyft, and the other cities in the county have explored having them operate in the non-SA parts of the county, so there was some pressure on Mayor Taylor beyond the tech/millennial community in town to revisit this. We’ll see what happens. The Rivard Report and the Current have more.

Texas blog roundup for the week of June 29

The Texas Progressive Alliance is still celebrating love’s victory as it brings you this week’s roundup.

(more…)

On to the benefits

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

RedEquality

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

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

[…]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

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

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

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

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