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There’s a lot of anti-LGBTQ litigation out there

Sorry to be the bearer of bad news, but this is where we are.

In the wake of the toppling of Roe v. Wade and with Justice Clarence Thomas urging the U.S. Supreme Court to revisit rulings on gay sex and marriage, Texas is the stage for several lawsuits dealing with LGBT rights.

Right now, a half dozen cases on everything from insurance coverage for HIV prevention to employment discrimination and same-sex marriage are wending their way through state and federal courts here. Their outcomes could radically alter rights for lesbian, gay, bisexual and transgender people in Texas and across the country.

The lawsuits all have one thing in common: former Texas solicitor general Jonathan Mitchell.

Best known as the man behind the state law that allows Texans to file civil lawsuits against people who help pregnant people get abortions, Mitchell opened up a law firm in Austin four years ago with the goal of systematically dismantling decades of court rulings he believes depart from the U.S. Constitution.

The Dallas Morning News is tracking six of his cases that originated in Texas and deal with LGBT rights. Here’s a summary of each case.

Gay Marriage

Dianne Hensley vs. State Commission on Judicial Conduct (Third Court of Appeals)
Brian Keith Umphress vs. David Hall, et al. (Northern District of Texas)

Summary: Both of these cases were brought by Texas officials with the authority to perform weddings but who do not want to offer marriages to same-sex couples because they say it violates their religious beliefs.

Insurance Mandates

John Kelley, et al., vs. Xavier Becerra (Northern District of Texas)

Summary: Plaintiffs in this federal lawsuit argue that insurers or self-insured employers should not have to cover certain kinds of preventive medical care because that would force them “to underwrite coverage that violates their religious beliefs.” The suit also targets the Affordable Care Act’s mechanisms for deciding which care private insurers must cover, arguing it gives the federal agencies and other unelected bodies undue control over decisions that should remain with Congress.

Employment Discrimination

Braidwood Management v. EEOC (Fifth Circuit Court of Appeals)

Summary: The case in federal court, filed on behalf of Hotze’s Braidwood Management and the Keller-based Bear Creek Bible Church, argues that religious employers should be able to hire and fire workers based on their sexuality and gender identity.

LGBT Library Books

Leila Green Little, et al. vs. Llano County (Western District of Texas)

Summary: The federal lawsuit, filed by citizens of Llano County, argues their First and Fourteenth Amendment rights were violated when local leaders pulled certain titles from the library’s child and teen sections that they deemed “pornographic.”

‘Save Chick-fil-A’

Patrick Von Dohlen, et al. vs. city of San Antonio (438th District Court in Bexar County)

Summary: This state lawsuit, filed by a handful of would-be Chick-fil-A customers, argues San Antonio violated a state’s so-called Save Chick-fil-A law by booting the fast food chain Chick-fil-A from the local airport based on its charitable donations to Christian groups that oppose LGBT rights. The law, which Gov. Greg Abbott signed in 2019, prohibits governmental entities from taking “adverse actions” against a business or person for their contributions to or memberships in religious organizations, and allows citizens to sue over apparent violations.

Some of these I’ve written about before, but you get the idea on them all. The plan of course is to get one or more of these cases to SCOTUS to have a shot at overturning Windsor and/or Obergefell. I assume that the recent bill passed by the House to offer federal protections to same sex marriage would have some effect, but it’s hard to say how much and I’d rather not find out. The underlying philosophy is that some people, namely Jonathan Mitchell and his fellow travelers, have more rights and legal protections than anyone else. I’m sure you can see why they’re aiming to take this path to achieve those ends. Anyway, I don’t know how this ends but I do know we can’t be sitting idly waiting for it. It would be lovely if we had a Senate that was up to doing something not only about the overall erosion of civil rights but also the radical nature of the federal judiciary these days. Maybe next year, if we’re lucky and can make it till then.

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9 Comments

  1. Kibitzer Curiae says:

    DE-SPINNING NEEDED

    Re: “In the wake of the toppling of Roe v. Wade and with Justice Clarence Thomas urging the U.S. Supreme Court to revisit rulings on gay sex and marriage, Texas is the stage for several lawsuits dealing with LGBT rights.”

    A better formulation would be: When Dobbs was decided, a number of other court cases were pending. Millions likely. We are, after all, a litigious society.

    Take Hensley v Commission on Judicial Conduct, for example.

    She is JP who sued the Commission and lost. The district court granted the defendants’ plea to the jurisdiction and, in the alternative, granted the defendants’ plea in estoppel. The case was docketed in Travis County district court (following a transfer) In July 2020. So, that’s almost two (2) years before Dobbs and has nothing to do with it.

    District Court case number D-1-GN-20-003926
    Appellate case number: No. 03-21-00305-CV
    https://search.txcourts.gov/Case.aspx?cn=03-21-00305-CV&coa=coa03

    Substantively, what’s the big deal? Same-sex couples have plenty of other judges or officiators to choose from. As can be inferred from the party names, the lawsuit is about her complaining about what the commission did to her (and her lost fee revenue for performing the rites for traditional groom-bride pairings). So how does that endanger the legality of same-sex marriage in the Supreme Court?

    As for the ‘Chick-fil-A’ litigation (in which Chick-fil-A is not involved, by the way) that’s already been to the Texas Supreme Court and back. Has nothing to do with Dobbs/abortion either, and a state statute is involved with state-law standing and immunity issues figuring prominently. So no SCOTUS involvement to be anticipated because the state supreme court has the last word on construing state statutes and determining legal standing and scope of “modern” King-can-do-no-wrong immunity in state courts.

    Von Dohlen v. City of San Antonio, No. 20-0725 (Tex. Apr. 1, 2022) (“We hold that petitioners’ live pleading does not demonstrate a waiver of governmental immunity. But because the pleading does not affirmatively negate the existence of jurisdiction, we reverse the court of appeals’ judgment and remand to allow petitioners an opportunity to replead.”)

    The San Antonio Court of Appeals issued its dismissal opinion (based on governmental immunity solely) on August 19, 2020. So that one, too, predates Dobbs by 2+years.

    Okay, for levity, you can now make an April Fool’s Day joke about the supreme Chick-fil-A hand-down on that special date.

  2. Mainstream says:

    @Kibitzer Curiae: “what’s the big deal”? Black folks had “plenty of other” water fountains, public schools, places in the back of the bus to sit. Maybe the indignity of being told you are not good or worthy enough to be served by a public official is sufficient injury. And in some rural communities you might have to drive 50 or 100 miles further to find a judge/minister.

  3. Kibitzer Curiae says:

    ANOTHER GAY ATTACK

    Lauren McGaughy, Ted Cruz says Texas should repeal ban on gay sex. DALLAS MORNING NEWS (July 27, 2022)

    https://www.dallasnews.com/news/politics/2022/07/27/ted-cruz-says-texas-should-repeal-ban-on-gay-sex/ [i.e., the unenforceable Texas sodomy statute]

    “Consenting adults should be able to do what they wish in their private sexual activity, and government has no business in their bedrooms,” Cruz’s spokesman told The Dallas Morning News.

    Also breaking news: Politician accused of playing politics.
    Inane-statement credit goes to: Rep. Jessica González

  4. Kibitzer Curiae says:

    Re: “back of the bus to sit”

    If you are an occasional Metro bus rider like this Kibitzer, it is indeed hard to relate to that because the back is in many ways preferable, esp. the back-most row. And the A/C is likely to be more effective there away from the doors.

    On double-decker Megabus and Flixbus, the top front seats are nice because of the wide-angle view and the natural illumination if you want to read, but the (small) chance of fatal injury is elevated because your body will fly out through the glass or the overpass will crush your skull (if only that) in the unfortunate event of a collision.

    Bottom line: The front/back issue is merely symbolic, and depends on the valuation attached to the seat location, which is neither objective nor universal (unlike the laws of physics governing kinetics and inertia, which affect risk of injury).

    Perhaps we should rather think of the “indignity” of having to ride a public bus for lack of alternatives (which is not a race issue) or the nonavailability of any motor-driven means of conveyance, private or public, an even greater “indignity”. Again, that’s a general mobility issue. Nothing inherently to do with race or sex or copulation and sundry sexual preferences.

    As for the historical dimension, and to get a sense of how terrible a system slavery was, you should read a first-hand account, like TWELVE YEARS AS A SLAVE by Solomon Northup. The book.

    RE: “Maybe the indignity of being told you are not good or worthy enough to be served by a public official is sufficient injury.”

    Ever been to a post office and having had to toe the line and bide your time? Then give up and head to the postal meter machine if that’s an option for your service needs? That’s assuming you didn’t go for self-service in the first place to avoid an anticipated indignity. In any event, there is no allegation that JP Hensley said any such thing about lack of worthiness. Much rather, there was a handout explaining her religious reservations and referral to an alternative option that did not share them (the religious objections) and would perform the official hitching operation for the same (net) fee after application of a referral-based discount. You can look up the specifics in the briefing.

    Re: “in some rural communities you might have to drive 50 or 100 miles further to find a judge/minister.”

    Historically perhaps a problem, but one for which there was an easy fix: There was a way to get hitched without an officiator: It’s commonly called Common Law Marriage (but more technically “informal” under the Family Code). And we still have it. So, as long as you can make your way together to a local bar and announce your present reciprocal decision to be spoused (it used to be husband & wife), you should be good. Cheers! Just a little hanging out and holding out together (hand-holding optional) in addition to the part that hopefully will still be good ever after: the day-in-day-out cohabitation.

    As a practical matter: If you think it’s worth getting married, why wouldn’t you be willing to drive a bit for a proper venue and an officiator to your liking? The marriage business is not a government monopoly in Texas, at least not the ritual part. Not being able to get a license, of course, was once a big issue. Actually, not so long ago. But that’s not what is at issue here.

    STATUTORY REFERENCE:

    TEX. FAM. CODE Sec. 2.401. PROOF OF INFORMAL MARRIAGE.

    (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

    (1) a declaration of their marriage has been signed as provided by this subchapter; or

    (2) the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

  5. Ross says:

    Government officials don’t get to choose which members of the public they serve. If they can’t serve all members of the public, then they need to find another line of work. I have zero sympathy for Hensley. None. She has no valid argument against performing a civil marriage for a same sex couple.

    The Post Office reference was utterly irrelevant.

    Informal marriages are problematic if proof of marriage is required for obtaining benefits, or if the couple moves to a state that does not recognize informal marriages.

  6. Jason Hochman says:

    These cases didn’t come in the wake of toppling Roe v. Wade. They’ve been around for a while.

    As the Plessy v. Ferguson verdict becomes a part of our every day reality–with separate graduations and separate national anthems, and other separate but equal institutions and events, of course there will be a separate but equal sexual preference world established next.

    I am against gay marriage in the sense that I am against any government involvement in marriage. It is up to churches, and, if they define marriage as a man and woman, that’s up to the church, if they wish to add same sex couples to the definition, again, up to the church.

  7. Bill Daniels says:

    Ross is right. If you are marrying people on the side for cash by virtue of your judge job, you should either take all comers, or don’t do it at all. To the broader issue, we are seeing massive push backs and attacks because the left, after putting forward the reasonable argument that gays just want to get married and be left alone like everyone else, didn’t stop there. They poked the bear by tormenting cake makers, and finally touched the 3rd rail, recruiting kids, including kids in classrooms.

    That was too much, and now you are seeing the results, including the election of Youngkin in blue Virginia. Even the effete, liberal, government workers had to say enough is enough when their kids were exposed to gblt and anti-white indoctrination. And the mass importation of Mexicans and Central Americans? Most of them are Catholic…..they probably don’t want their kids exposed to that stuff, either.

  8. Bill Daniels says:

    Jason,

    Here’s why government MUST recognize gay marriage or civil unions……Social Security survivor benefits. If two straight people can enter into a contract to receive survivor benefits from whichever one dies first, then two homosexuals must have the same right. That’s it in a nutshell, right there. It’s not about celebrating their love, promoting homosexuality, or anything else. It’s simple contract law and the equal protection clause in the Constitution.

  9. Ross says:

    Jason, no one makes churches perform marriages for anyone that doesn’t meet the church requirements. Churches are not the only places where people get married. Marriage is not strictly a religious ceremony. There are major long term legal impacts from marriage, from who gets property when one partner dies to tax treatment.

    Bill, no one is recruiting children. Nor are there mass importations of people from South of the border. CBP has tossed a couple of million back over the fence in the past year alone.