Paxton drops another same sex marriage appeal

Another step forward.


Texas Attorney General Ken Paxton plans to dismiss an appeal challenging a Travis County judge’s February ruling that found the state’s ban on gay marriage to be unconstitutional.

The U.S. Supreme Court’s June 26 decision declaring gay couples have a fundamental right to marry left no legal controversy to be decided by Texas’ highest civil court, the attorney general’s office said Monday.

Once the appeal to the Texas Supreme Court is dropped, Travis County Probate Judge Guy Herman will be able to continue a case asking him to determine if an eight-year relationship between two Austin women should be recognized as a common-law marriage.

Paxton’s office, however, has not yet decided whether to continue a separate appeal in a Travis County case that allowed two Austin women to get married in February.

The Travis County cases are among the final loose ends remaining in the legal battle over gay marriage in Texas.


The Travis County marriage cases began Feb. 17, when Herman found the state’s ban on same-sex marriage to be unconstitutional as part of an estate fight in which Austin resident Sonemaly Phrasavath sought to have her longtime relationship with another woman, Stella Powell, declared a common-law marriage. Powell died last summer of colon cancer.

Two days later, state District Judge David Wahlberg ordered the Travis County clerk’s office to issue a marriage license to Sarah Goodfriend and Suzanne Bryant, citing Goodfriend’s poor health.

At Paxton’s request, the Texas Supreme Court temporarily blocked both rulings in February, and then began accepting legal briefs on how it should ultimately rule.

During a Monday hearing on the common-law marriage case, a lawyer for Paxton told Herman that the appeal would be dropped in that case. Herman then set an Oct. 5 hearing to determine if Phrasavath and Powell were in a common-law marriage.

“We’re going to treat it like any other common-law marriage case in Texas, which is all we’ve ever wanted,” said Brian Thompson, lawyer for Phrasavath.

See here and here for background on the Phrasavath and Powell case, and here for more on the Goodfriend and Bryant case, including a link to the Supreme Court injunction. I have to assume Paxton will drop that appeal as well, since it’s hard to see any legal grounds he’d have for continuing to pursue it.

As far as other legal loose ends go, I have yet to see any further news regarding the injunction against granting FMLA benefits to federal employees with same sex spouses in Texas. I feel certain this will go away with the filing of a motion, but either that hasn’t happened yet or I just haven’t been able to find a story about it. Here in Houston, the lawsuits that were filed over Mayor Annise Parker’s executive order allowing spousal benefits to all legally married city employees – one filed by three city employees seeking to force this action, and two other filed by agitators seeking to stop it; see here for the latest update – have now been dismissed. According to a Facebook update on Noel Freeman’s wall (Freeman being one of the original plaintiffs), “the case was closed today with this last entry: FINAL ORDER LIFTING STAY, DISSOLVING PRELIMINARY INJUNCTION, AND DISMISSING CASE AS MOOT granting 15 Unopposed MOTION to Lift Stay, Unopposed MOTION To Dissolve Preliminary Injunction, Unopposed MOTION to Dismiss 13 Preliminary Injunction and Dismiss Case as Moot Pursuant to Rule 41(a)(2). Case terminated on 7/6/2015. (Signed by Judge Sim Lake)”. Spousal benefits are now available to all city of Houston employees, as they should be.

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2 Responses to Paxton drops another same sex marriage appeal

  1. PDiddie says:

    And the hits just keep on comin’.

    “Texas Attorney General Ken Paxton, whose admitted violations of state securities laws will go before a grand jury this month, has also figured in a federal investigation of a Dallas-area technology company suspected of defrauding investors.”

  2. Robbie Westmoreland says:

    From the order of dismissal in Freeman, Estrada and Reeser v Parker and the City of Houston, 4:13cv3755 in the Southern District of Texas:
    “This Court finds that Obergfell and DeLeon, are dispositive of this matter, the Defendants have indicated their intention to comply with the federal decisions, and that Plaintiffs claims are thus rendered moot.
    THEREFORE, it is so ordered this case is dismissed pursuant to Federal Rule of Civil Procedure 41(a)(2), the parties to bear their own respective costs and fees.”
    Obergfell was the Supreme Court case, of course, and DeLeon was the case at the Fifth Circuit appealed from Western Texas ruling Texas’s prohibition of same sex marriage unconstitutional.

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