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State Health Services department finally amends that death certificate

Good.

Complying with a federal court order, Texas has issued an amended death certificate acknowledging a Conroe man as the husband of a same-sex spouse who had died in January. The men had been married in New Mexico in 2014, when Texas still banned gay marriage.

Shortly after the change was made Thursday night, state lawyers asked U.S. District Judge Orlando Garcia to cancel next week’s hearing on whether Attorney General Ken Paxton should be held in contempt of court for his agency’s role in prolonging John Allen Stone-Hoskins’ fight to be listed as the husband on his spouse’s death certificate.

Garcia ordered the document to be changed Wednesday, saying the state’s refusal to amend the death certificate violated his permanent injunction, issued in July, that barred state officials from enforcing Texas laws on gay marriage, including a ban on recognizing same-sex marriages performed in other states.

Garcia issued the injunction shortly after the U.S. Supreme Court overturned all state bans on gay marriage.

In the same order Wednesday, Garcia directed Paxton and Kirk Cole, interim commissioner of the Department of State Health Services, to appear in his San Antonio courtroom at 10 a.m. Wednesday to determine if they should be held in contempt of court for violating his injunction.

[…]

In a brief filed in Garcia’s court late Thursday, lawyers for the attorney general’s office urged the judge to cancel next week’s hearing, arguing that it would be inappropriate to hold Paxton and Cole in contempt of court.

A contempt finding would require clear proof that Paxton and Cole violated “a definite and specific order of the court,” the brief said. Garcia’s injunction, however, related to the right of same-sex couples to marry, not how a Texas agency should follow state regulations on issuing death certificates, the brief said.

“Whether a newly-recognized federal constitutional right is retroactive is a complex, fact-specific inquiry that is resolved in subsequent legal proceedings,” the brief said.

Requiring Paxton to appear at a contempt hearing is “particularly striking,” the brief said, because he was merely doing his job by providing legal advice to Cole’s agency.

“The attorney general has not refused to amend any death certificate,” the brief said. “There is absolutely no authority for the proposition that a constitutional officer of a state may be held in contempt for good-faith representation of a client in discharging his constitutional duty.”

Garcia’s decision to cancel Wednesday’s hearing could be influenced by an Austin man’s request to attend the hearing as an interested party. William Wallace’s attempts to amend his late husband’s death certificate for the past 1½ months also was rejected by state officials, his lawyer said.

See here for the background. Personally, I think Judge Garcia should go ahead and have the hearing. Paxton may have just been advising DSHS, but he was clearly giving them bad advice that gave them a way to deny John Stone-Hopkins’ rights, at a time when he didn’t have much time left to fight for them. He did the same thing with County Clerks after the Obergfell ruling, and while it wasn’t an outright call for resistance and in the end had little practical effect, the point is that he clearly has shown a lot of disrespect for the court’s ruling. I think he should have to explain himself in front of the judge, if only to ensure he doesn’t ever do this again.

And here’s why that lesson needs to be applied.

Ken Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, wrote in a letter to U.S. District Judge Orlando Garcia today that the Department of State Health Services continues to deny accurate birth certificates to the children of same-sex couples.

Upton and his clients, Susan Leigh Jorgensen and Robin Bass Jorgensen, plan to attend a hearing next week on a contempt motion against Paxton and Kirk Cole, the interim health department commissioner, over their refusal to issue an amended death certificate to John Stone-Hoskins listing him as the husband of James Stone-Hoskins. James Stone-Hoskins died in January after the couple married in New Mexico last year.

On Wednesday, Garcia ordered Cole to issue an amended death certificate to Stone-Hoskins, who has terminal cancer, and set a hearing for next Wednesday in San Antonio. Stone-Hoskins received the amended death certificate Thursday.

“While it appears the defendants have issued the specific corrected death certificate you ordered, they are by no means complying with the permanent injunction you entered against them in this matter,” Upton wrote in his letter to Garcia, adding that the state health agency has “steadfastly refused” to do so.

Upton said his clients, whose second child was born Aug. 4, were most recently denied an accurate birth certificate Aug. 5. Upton believes the high court’s June 26 ruling in Obergefell v. Hodges, along with a subsequent order from Garcia enjoining state officials from enforcing Texas’ same-sex marriage ban, require that the state allow gay couples to have both names on birth certificates.

Also writing a letter to Garcia on Friday was Elizabeth Brenner, an attorney for William Kenneth Wallace, who’s been denied a death certificate listing him as his late husband’s spouse. According to Brenner’s letter, Wallace has gone to the health department’s vital statistics office numerous times in person over the last month and a half, but each time he was turned away — most recently on July 27.

Brenner’s letter requests permission to appear at the contempt hearing as an interested party.

As you may recall, there was some motion in the Lege to fix birth certificates for children of same-sex couples, but it didn’t make it through. I’d rather we had a legislative fix for this than a judicial one, but what matters is getting it fixed. We’ll see what Judge Garcia thinks of all this. The Dallas Voice has more.

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2 Comments

  1. mollusk says:

    I read the motion to reconsider. I am a lawyer. I am deeply embarrassed that our attorney general not only rendered the advice that his office apparently did, but that it continues to insist that it is right in doing so. I would be deeply surprised if this policy wasn’t with Ken Paxton’s express approval, if not his express orders.

    One line in the response really pops out: “This underlying, closed proceeding (DeLeon) is about the legality of same-sex marriage in Texas, not whether the U. S. Supreme Court’s order in Obergefell applies retroactively to death certificates.” They then try to weasel out by granting the one amended death certificate specifically ordered; somehow I seriously doubt that the others have been – though I can’t tell from looking at the court’s docket entries today (Saturday).

    James Obergefell brought suit specifically to be listed as a surviving spouse on John Arthur’s death certificate; they were legally married out of state at a time when Ohio did not recognize same sex marriage.

    Here in Texas, Judge Garza’s original opinion in DeLeon said: “The Court enjoins Defendants from enforcing Article I, Section 32 of the Texas Constitution, 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.” In a footnote, he emphasized that it was not limited to just the parties to that case.

    The final judgment he signed on July 7 says: “Any Texas law denying same-sex couples the right to marry, including Article I, §32 of the Texas Constitution, 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, violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §1983; (and) Defendants are permanently enjoined from enforcing Texas’s laws prohibiting same-sex marriage…” (my emphasis).

    Mr. Stone-Hoskins’ most recent attempts to get the amended certificate even attached a copy of the Obergefell opinion.

    I just don’t know how it could possibly be clearer. I truly feel sorry for the assistant AGs tasked with submitting that “we’re not sure if these particular angels were dancing on the head of that particular pin” response and appearing before Judge Garza. That ought to be one very interesting contempt hearing.

    I wonder what the over/under is on Ken Paxton personally showing up, as ordered.

  2. David Fairfield says:

    Paxton should just shut up. He’s making it worse for himself by claiming he did not personally refuse the document, but advised the state health department on the matter ( the result of which the document change was denied ). Furthermore, he is claiming a problem of a retroactive nature which does not exist. He knows the law, he’s deliberately giving orders to decline a dying mans request to put his affairs in order, just because he is gay. The document would not have been amended without a direct court order to do so, and then it happened within a day…which means that it could have been done 30 days ago when first requested (they did cash his check, though). This poor man could have had 30 of his 60 to 90 days left to live with peace of mind instead of this added stress. What an incredible injustice just for personal spite. The contempt hearing absolutely should take place. I don’t know that of all the heartless hateful things happening as a result of ssm, that this is’t the worst thing. So far.