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July 6th, 2015:

Here come the lawyers

I don’t see how the squadron of anti-equality attorneys has a case in the wake of Obergfell, but they’re gonna try their best to muck things up anyway.

RedEquality

Now, conservative attorneys are gearing up to defend [government employees who refuse to recognize gay marriage because of religious objections], saying they are confident existing laws will ensure their religious freedom. But the legal arguments they are likely to make are complex, legal experts say, and could test the courts’ capacity to balance gay rights and religious freedom.

As indicated in Paxton’s opinion, there are no blanket protections for county clerks and other government employees who reject same-sex marriage in their official capacity. Instead, the strength of religious claims are considered on a case by case basis.

County clerks, for example, must prove they are refusing to issue same-sex marriage licenses because doing so would violate a “sincerely held religious belief” — a legal standard courts are accustomed to considering, said Jeremy Dys, senior counsel at the Plano-based Liberty Institute, which specializes in religious freedom litigation.

Conservative attorneys suggest these cases can be resolved by guaranteeing that the government official is offered a “reasonable accommodation.” In cases of a county clerk refusing to issue same-sex marriage licenses on religious grounds, that task could be delegated to a deputy clerk or another qualified staff member who has no objections, said Mat Staver, founder and chairman of the conservative Liberty Counsel, a national nonprofit that offers pro bono legal assistance on religious freedom issues.

“What’s happening is that you’re allowing individuals to participate in the change that occurred by the Supreme Court on Friday and you’re allowing individuals who have a religious objection to be able to have that religious objection,” Dys said.

Gay rights attorneys and civil rights groups like the American Civil Liberties Union agree that there is room for religious accommodations for government officials — so long as those accommodations do not discriminate against specific groups, like same-sex couples, by intentionally burdening them.

There is a distinction between a county clerk’s freedom to express religious beliefs and the freedom to impose those beliefs on others in “the execution of their duties,” said Justin Nichols, a San Antonio-based attorney who focuses on gay and lesbian-related legal matters.

He added that reasonable accommodations for county clerks who object to issuing same-sex marriage licenses must ensure that same-sex couples still have the ability to obtain a license in their county without delay and aren’t required to travel to another county to exercise their constitutional rights.

“That’s like saying you can always get a public school education that’s not segregated if you just go to another county,” Nichols said.

Religious freedom hawks and gay rights activists are also at odds about the rights of judges and justices of the peace to refuse to perform marriage ceremonies for same-sex couples.

In his opinion, Paxton wrote that so long as other individuals authorized to perform same-sex ceremonies are willing to conduct them, judges and justices of the peace can refuse on religious grounds; they are not outright preventing a same-sex couple from participating in a ceremony.

But others asserted that the risk of litigation for judges and justices of the peace lies in picking and choosing between performing marriage ceremonies for heterosexual couples and same-sex couples.

“A judge or justice of the peace is authorized to perform a marriage but is under no obligation to do so,” Harris County Attorney Vince Ryan, a Democrat, wrote in a memo Wednesday to the county clerk, local judges and justices of the peace. “However, once the judge elects to undertake the performance of marriages, the service must be offered to all (including same-sex couples) in a non-discriminatory manner.”

You can see a copy of Ryan’s opinion on judges and JPs here. Ryan is an unsung hero here in Harris County. Unlike a lot of County Clerks who apparently had their heads in the sand, Ryan was ready for the SCOTUS ruling and had an opinion on what it meant for the Harris County Clerk ready to go the same day. There’s no way Stan Stanart would have issued a same-sex marriage license that Friday if Ryan hadn’t forced his hand. Keep that in mind when he’s up for re-election next year.

As far as the religious objections of County Clerks and their employees go, I say public officials and employees are there to serve the public – all of the public, not just the public they approve of. If there’s someone in a County Clerk’s office that can’t bear the idea of issuing a marriage license to a same-sex couple, then they need to find another job. If the county in question can accommodate them by placing them somewhere else – Stanart brought up the example of an employee who was moved elsewhere because she objected to issuing liquor licenses – that’s fine, but if not, then they are welcome to look elsewhere. “Reasonable accommodation” does not mean “any and all possible accommodation”. If you can’t perform your job duties, someone else will.

What worries me is the possibility that the Fifth Circuit, being the giant bag of suck that it is, may decide that if it’s not an “undue burden” for a woman to have to travel to another state to get an abortion, it’s no biggie for a gay couple to go a county or two over to get hitched. I mean, as long as Travis County exists you can still get your license, right? I know, the SCOTUS decision in Obergfell didn’t allow for any such consideration, but then Roe v. Wade was a pretty clear ruling too, and look where we are now. My point is, these guys are going to make some form of argument that as long as this right is available somewhere, it doesn’t have to be available everywhere, and I fear some idiot judge will buy it.

The problem is that the standard of religious beliefs being “sincerely held” is unsustainable, as the various guerrilla actions by the Satanic Temple should make clear. If that’s all it takes, then anyone can carve out any exception for themselves as long as they believe in it hard enough. Lots of people used to “sincerely believe” that God intended the races to be separate and thus interracial marriage should be illegal because the Bible said so, no matter how much the current batch of Pharisees insists that this is totally different. The Bible will always say what people like that want it to say. That should not give them any special rights as a result.

Paxton’s cronies

This guy really is a piece of work.

Ken Paxton

When seeking a job at the Texas attorney general’s office, it’s less about what is on your résumé than who you know.

In Attorney General Ken Paxton’s first weeks in office, he filled his higher ranks with at least 14 people connected to him and other prominent Republicans — quiet “appointments” that his office defends in spite of state law, which requires that jobs be advertised when they’re filled from outside the agency.

An American-Statesman review of more than 1,800 pages of personnel files reveals that hiring procedures were relaxed or altogether ignored for those who had worked for Paxton, former Gov. Rick Perry or U.S. Sen. Ted Cruz. Records show several were hired weeks before they had even applied for the jobs, if an application was completed at all.

Meanwhile, people whose résumés didn’t include political connections often faced months of red tape, interviews and vetting — just the sort of competition that state law envisions for coveted state jobs.

It is not uncommon for elected officials to ignore a decades-old law meant to prevent political patronage in Texas, but the number of Paxton’s so-called appointees is notable, and correspondence obtained under the Texas Public Information Act suggests Paxton was promising lucrative jobs to his political allies months before he took office.

[…]

The Statesman asked three state agencies how state law might allow for “high-level appointments,” as Paxton’s office called them. None would provide answers.

The Texas Workforce Commission, the designated arbiter for job postings, deferred to the attorney general’s office, which stopped answering questions from the Statesman for this story. The Texas Legislative Council, whose lawyer assists legislators in drafting laws, deferred first to the attorney general’s office, then back to the Texas Workforce Commission.

The commission’s spokeswoman, Lisa Givens, said her office provides no guidance or oversight to ensure state officials are following the law. They just take what other agencies send them and post it.

“We don’t enforce the rule,” she said. “We accept the postings. There’s no enforcement in this provision.”

Givens did note, however, the statute says “any agency, so that would be any agency.”

Because the law is 25 years old, wrapped into two omnibus revisions of chunks of state law, it has received little attention in recent years. But earlier this year the Senate Research Center, providing context for another bill, was succinct in its interpretation: “State agencies are required to list job openings with the Texas Workforce Commission.”

“The job posting requirement is black and white,” said Craig McDonald of Texans for Public Justice, the left-leaning watchdog group whose ethics complaint against Paxton spurred an ongoing grand jury investigation into possible securities violations.

“In Texas, cronyism is allowed,” McDonald said. “But you have to at least follow the rules.”

Still, an official determination on whether Paxton broke the law can only come from the attorney general himself.

Isn’t that special? Read the whole thing, it’s a nice piece of reporting. There’s not much else that can be done, though perhaps if he’s still claiming to caer about ethics, perhaps Greg Abbott could add this to the Lege’s to do list in 2017. Beyond that, if nothing else this serves as further evidence, as if it were needed, that Paxton has the ethical and moral compass of a Russian hacker. His downfall, when it finally happens, is going to be epic.

Circling back to city finances

I have three things to say about this.

BagOfMoney

This time, [City Finance Director Kelly] Dowe insists, the $126 million deficit he projects for the budget year that starts next summer is not going to disappear, as past projected shortfalls have. There are no more payments to defer, he says, no more valuable city-owned land to sell.

As a result, the city could be facing layoffs and cuts to services within a year – perhaps pool closures, restricted library hours and parks going to seed, and perhaps worse.

“We have an unsustainable financial model,” Councilman Dave Martin said. “We cannot continue to do this. If we continue down this path, we’ll be belly up.”

Dowe and his boss, Mayor Annise Parker, know Houstonians are confused as to why their government would face layoffs and service cuts while the region’s economy booms.

There are several reasons for this, all a decade or more in the making.

The city has been spending more than it brings in for years, a structural gap driven chiefly by soaring pension costs and, in recent years, a spike in debt payments. Houston typically bridges this gap by budgeting conservatively, being happily surprised when tax revenues exceed projections during the year, then using those “extra” dollars to balance the next year’s budget.

To balance the current budget for the fiscal year that started last week, council approved taking $86 million from last year’s leftover savings, the largest such transfer in a decade.

“Obviously we carry the reserves over from year to year. That’s money that’s not generated or not expected to be generated in the next budget cycle,” said Controller Ronald Green, the city’s elected financial watchdog. “Clearly, if you want to be technical, it is not a structurally balanced budget.”

This history of disappearing deficits has made some council members skeptical of just how dire current projections are. Dowe acknowledged that he originally projected an enormous shortfall for the current budget, which wound up being balanced without layoffs or service cuts.

But he also ticked off a litany of reasons that he says will make another easy fix harder in the future.

First, the city has run into a cap on property tax revenues that voters imposed a decade ago. Houston can collect more property taxes each year than the year prior, but is limited to the combined rates of inflation and population growth.

The city now knows exactly what it will collect each year from its largest source of revenue, and no number of new skyscrapers or townhomes will change that. The typical way the city has wound up with “extra” money at the end of each year is thus gone. Without the cap, the city would have had another $53 million to spend this year.

[…]

Each of the next two years also will bring a $50 million payment to the police pension, triggered under the pension board’s contract with the city because sluggish investment returns have eroded its funding level.

Without an increase in revenue, Dowe said, the only option is to cut services.

“Debt is what it is, pensions are what they are,” he said. “We will continue to get more efficient, we will continue to cut costs where we can, but in the long term it would be hard to say you wouldn’t affect services with the outlook we have.”

Debt payments for past public projects have risen by more than half over the last five years, to $346 million this year, and are projected to reach $411 million by 2020. Pensions are devouring $308 million of the city’s main operating fund this year, nearly three times what is spent on parks and libraries combined.

1. There’s no serious solution to this problem that doesn’t include repealing the revenue cap. Every candidate running for office runs on a promise of promoting economic growth and prosperity. Houston has had that these past few years, but thanks to the cap we’re being penalized for it. Fifty-three million dollars is a lot of money and would do a lot to reduce the scope of the problem we’re facing, and that’s just for this year. You want to argue that we don’t have a revenue problem in Houston I’ll be sympathetic, but that doesn’t mean that throwing away extra revenue like this makes any sense. There is no good reason not to use all available resources.

You may argue that the people won’t go for it, and you may be right. What evidence we have from limited polling certainly suggests that’s a strong possibility. To that I say, how about a little leadership from those who want to be Mayor? Politicians love to talk about “making the tough choices”, yet somehow choices like this never seem to be on the table. To be fair, at least some Mayoral candidates have mentioned this – I know Chris Bell has, I’ll have to check on some others – and Mayor Parker has brought it up as well. Any candidate who says they want to make “tough choices” but doesn’t consider this is to my mind not to be taken seriously.

2. Similarly, I don’t know how anyone can look at the debt figures and not support ReBuild Houston. One of the defining purposes of ReBuild Houston was to pay down existing debt and reduce the amount of future debt needed to pay for infrastructure. Put aside the extra revenue stream that ReBuild Houston represents, why would you want to add to the debt burden at this time? I’m not against using debt to invest in the city’s infrastructure, but now is not a very good time for it. What exactly is the case for going back to a bond-based system of paying for street and drainage improvements?

3. Finally, the pension issue. The choices are the same as they’ve always been – try to convince the Legislature to grant the city the authority to make changes to the pension plan; try to negotiate a different agreement with the firefighters; suck it up and figure out how to pay what we owe. I’m not sure why anyone thinks they’d be more successful at #1 than Mayor Parker has been, and I can’t imagine anyone advocating for #3. Maybe I’m missing something, I don’t know. I don’t know what else there is to say on this.

Metro and your smartphone

Nice.

HoustonMetro

As Metropolitan Transit Authority officials planned for the new system – which will affect practically every bus ride in the region – they have also focused on offering new services. One of those, a system that allows bus riders to text a code listed at each bus stop and receive a reply with the time of the next bus arriving, will debut in August, at the same time sweeping changes come to Metro’s bus routes.

The second new feature, an application to allow riders to buy fares and display them on their smartphones, will be ready in October or November, said Denise Wendler, Metro’s chief information officer.

Officials last month approved a $244,090 contract with GlobeSherpa for the smartphone payment system. Wendler said it would take 60 to 90 days to unveil the first phase, available only to purchase regular fares and day passes. A second phase would enable riders to buy fares specific to park and ride and to pay with online tools such as Apple Pay and Google Wallet.

The new text and smartphone payment systems are intended not only to provide better service for existing riders, but to attract new Metro users, officials said.

Metro does already have a smartphone app, the TRIP app, available on its RiderTools page. That will clearly need an update once the new bus system is rolled out. I suspect the text-to-find-the-time-of-the-next-bus service will be easier to use. As for the pay-by-smartphone app, it’s a great idea that I hope does help increase ridership. Not everyone carries cash, not everyone has a Q card, but lots of people have smartphones, and as long as you do you can catch a ride. I look forward to hearing what kind of numbers they see from this.