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Republicans join Woodfill’s ridiculous anti-spousal benefits crusade

Shoveling sand against the tide.

RedEquality

Fifty Republican members of the Texas Legislature have signed a court brief arguing that the same-sex spouses of government employees shouldn’t be entitled to health insurance and other benefits.

The “friend-of-the-court” brief was submitted Friday in a lawsuit brought by anti-LGBT activists against the city of Houston in response to then-Mayor Annise Parker’s decision to extend benefits to the same-sex spouses of city employees in 2013.

Last month, the Texas Supreme Court refused to hear the case, Pidgeon v. Parker, with only Justice John Devine dissenting. But Jonathan Saenz, president of the anti-LGBT group Texas Values, and former Harris County GOP chair Jared Woodfill have petitioned the nine-member court for a rehearing.

[…]

The brief argues that while the U.S. Supreme Court ruled in 2015 in Obergefell v. Hodges that same-sex couples have a right to marry, “nothing in that ruling compelled the taxpayers of Texas to pay for a vast array of benefits for same-sex spouses.”

“This Court has the opportunity to diminish federal tyranny and re-establish Texas Sovereignty,” the brief states. “The people have already spoken on the issue through the Texas Legislature. It would be a detriment to their constituents if this elected Court were to remain silent.”

LGBT advocates have said that under Obergefell, if a government employer offers any spousal benefits, it must offer them equally to same-sex and opposite-sex couples. They’ve also said they believe it is unlikely the state’s highest court will reconsider its decision.

See here for the background. The list of Republicans who signed on mostly includes the usual suspects, but there were a few names that disappointed me. Putting that aside, I have to ask, how does this even make sense? Does anyone really think that Obergefell will be interpreted as “OK, fine, you can get married, but you can’t get health insurance or be named the primary beneficiary of a retirement fund unless you get hetero married”? Forget about any cockamamie legal theory for this, what kind of person thinks this makes sense? (By the way, that cockamamie legal theory, as espoused by the one Supreme Court Justice out of nine that originally voted to rehear the appeal, is that hetero marriage counts for more and can be privileged by the state because of procreation; this argument was explicitly rejected by the federal courts and SCOTUS in the Obergefell case. So you can see what kind of a future this would have if it somehow got accepted here.) The Statesman has more.

Jared Woodfill never stops never stopping

Here we go again.

RedEquality

Fifteen months after the U.S. Supreme Court made marriage equality the law of the land, anti-LGBT groups in Texas are still fighting the decision.

Jonathan Saenz, president of the right-wing lobby group Texas Values, and Houston anti-LGBT activist Jared Woodfill announced Tuesday that they’re again asking the Texas Supreme Court to hear their lawsuit seeking to block the same-sex spouses of government workers from receiving health care and other benefits.

[…]

In their motion for a rehearing, Saenz and Woodfill argue that Obergefell should be interpreted narrowly because it violates states’ rights under the 10th Amendment, has no basis in the Constitution and threatens religious freedom.

“It is clear that the current Supreme Court will continue to use its power to advance the ideology of the sexual revolution until there is a change of membership,” Saenz and Woodfill wrote. “It is well known that the homosexual rights movement is not content with the judicial imposition of same-sex marriage in all 50 States; it is also seeking to coerce people of faith who oppose homosexual behavior into participating in same-sex marriage ceremonies.”

Ken Upton, senior counsel for the LGBT civil rights group Lambda Legal, told theObserver that Saenz and Woodfill are “more to be pitied than censored.”

“Obergefell requires the government to treat all married couples the same,” Upton said. “Obergefell doesn’t say that a government employer has to offer any married couple spousal benefits, but if it chooses to do so it must offer the same benefits to all married couples not just the different-sex ones. The government does not get to privilege straight couples over gay couples.”

If the Texas Supreme Court were to take the case and rule in favor of Saenz and Woodfill, the city of Houston could appeal the decision directly to the U.S. Supreme Court, Upton said.

“But let’s be realistic,” he added. “The Texas Supreme Court is not going to grant rehearing. My take is that the Texas Supreme Court is done with marriage. I don’t think there’s much appetite to re-engage that discussion.”

See here for the background. Some things call for logic and reason, some for scorn and derision, and for some all one can do is stare in slack-jawed amazement. That’s all I’ve got on this one.

More on Mississippi’s anti-LGBT law and the effect in Texas

Doesn’t look like we’re going to learn anything from the Mississippi experience.

RedEquality

Reeves’ ruling isn’t likely to deter Texas Republicans who have stated adamantly that Christians and others with sincerely held religious beliefs need extra protection when following their faith, particularly after the U.S. Supreme Court last year allowed gay marriage and the Obama administration earlier this year directed public schools to let transgender students use the bathroom and locker room that corresponds to their gender identity.

Texas Attorney General Ken Paxton has urged legislators to pass a series of targeted “religious liberty” bills, many of which mirror the Mississippi law, including:

  • Protecting small businesses from having to provide goods or services to same-sex couples.
  • Allowing judges to refuse to perform same-sex weddings.
  • Allowing government employees, such as county clerks who issue marriage licenses, to opt out of serving same-sex couples.
  • Exempting religious groups from nondiscrimination laws on hiring and housing.

Legislators can begin prefiling bills in mid-November for the 2017 session, which begins Jan. 10.

Paxton on Friday criticized Reeves’ ruling as “flawed and inconsistent with the Constitution.”

“The law in Mississippi simply affirms the freedom of Americans to peacefully live and work according to their deeply held beliefs, in accordance with the First Amendment. We look forward to the Fifth Circuit upholding that common-sense law on appeal,” Paxton said in a written statement.

[…]

Rebecca Robertson, legal and policy director for the ACLU of Texas, said Reeves’ opinion should send a clear warning to Texas legislators.

“Lawmakers shouldn’t enact laws that they know are constitutionally suspect,” she said. “We do have a history in America of trying to get around people’s constitutional rights and give discrimination the color of law. That is a really unfortunate history that we ought to be ashamed of and try not to replicate.”

If Texas tries to follow Mississippi’s lead, Robertson predicted a costly legal fight followed by a similar ruling.

“When a court says a law is not constitutional, and lawmakers try to do an end run around that, you are going to get a smack down from a federal judge,” Robertson said.

See here for the background. The ruling has yet to be appealed, so there’s no direct consequence for Texas yet. No question in my mind, it’s going to take repeated smackdowns for the message to sink in. Those smackdowns are going to have to come at the ballot box too if we really want to have a lasting effect. the best defense against bad laws being passed is electing people who won’t pass those laws in the first place.

From the “You can dish it out but you sure can’t take it” files

Poor baby.

RedEquality

After years of Texas trying to lure businesses away from other states, New York has struck back — with an ad that paints the Lone Star State as unwelcoming and discriminatory to the LGBT community.

The two-minute ad released by New York’s chief economic development agency highlights the Empire State’s principles of inclusion and equality, claiming these characteristics make it welcoming for all businesses.

Gov. Greg Abbott disputed the ad and pointed to New York’s taxes and regulations as a hostile business environment.

The ad begins against a backdrop of black-and-white video of the Statue of Liberty and immigrants at Ellis Island. A woman’s voice states, “For hundreds of years, New York state has stood as a beacon — a beacon that arose to welcome those unwelcome in other places.”

New York has opened its doors to the LGBT community when others have not, the ad continues. Headlines from newspapers around the country indicate Texas, North Carolina and Mississippi have pushed for discriminatory policies.

[…]

In 2013, former Gov. Rick Perry launched aggressive campaigns in New York, California and Illinois to attract businesses to Texas. In New York, he spent $1 million on TV advertisements that promoted the Lone Star State’s pro-business approach and strong economy.

Abbott has continued his predecessor’s work, even urging British businesses to declare independence on July 4 by moving to Texas.

You can see the video embedded at the Tribune link. First of all, if you’re going to aggressively market your own state as the best place ever for businesses to move to, then you have no grounds for complaint when another state does that to you. I mean, how wimpy is that? The proper response, if one is going to take this path, is to chuckle dismissively and pat New York on the head for being so adorable as to even try to keep up with us. This? It’s just weak. Or, as one of Greg Abbott’s favorite politicians (who, by the way, is from New York) would put it, SAD!

Also, too, and not to put too fine a point on it, but thanks to Greg Abbott and his Republican Party, there’s a whole lot of merit to this accusation, with more on the way next year. Abbott didn’t bother addressing the issue, because honestly what could he say? If we don’t want states like New York attacking us for being hostile to the LGBT community, then maybe we should try not being hostile to the LGBT community. It’s so crazy it just might work.

Mississippi anti-LGBT law struck down

This definitely has consequences for Texas.

RedEquality

A federal judge stopped Mississippi’s controversial “religious freedom” law Thursday night, minutes before it was set to take effect.

In a opinion that cited scripture and Mississippi’s segregationist past, U.S. District Court Judge Carlton Reeves said House Bill 1523, signed by Gov. Phil Bryant in April, was another unfortunate example of Mississippi trying to write discrimination into its laws.

“Religious freedom was one of the building blocks of this great nation, and after the nation was torn apart, the guarantee of equal protection under law was used to stitch it back together. But HB 1523 does not honor that tradition of religion freedom, nor does it respect the equal dignity of all of Mississippi’s citizens,” Reeves wrote in his opinion.

For opponents of the law, Reeves’s ruling was a triumph over a bill that they believe used religion as a Trojan horse to sneak discrimination into state law.

“Our state legislature has no business passing a law that gives protections to one set of religious beliefs over another. When there is no separation of church and state, there is no freedom of religion,” Carol Burnett, a United Methodist minister in Biloxi and plaintiff in one of the lawsuits, said in a statement released after Judge Reeves’s opinion.

[…]

Attorney General Jim Hood, the only Democrat holding statewide office, said he will appeal Reeves’s decision earlier this week saying circuit clerk’s cannot recuse themselves from issuing marriage licenses to gays because, as Hood noted, the clerks were never parties to the suit.

But Hood said he’s undecided about whether he will appeal the decision handed down Thursday night. He said he he has major reservations about the merits of the lawsuit — and the origins of the law.

“I can’t pick my clients, but I can speak for myself as a named defendant in this lawsuit. The fact is that the churchgoing public was duped into believing that HB 1523 protected religious freedoms,” Hood said in a statement.

“Our state leaders attempted to mislead pastors into believing that if this bill were not passed, they would have to preside over gay wedding ceremonies. No court case has ever said a pastor did not have discretion to refuse to marry any couple for any reason. I hate to see politicians continue to prey on people who pray, go to church, follow the law and help their fellow man.”

House Bill 1523 singles out three “sincerely held” religious beliefs as worthy of protection: that marriage is between one man and one woman; that people should not have sex outside such marriages; and that a person’s gender is set at birth. The law protects from litigation anyone who speaks out against gay marriage or transgender individuals because of these beliefs.

It was the second time Reeves ruled against HB 1523 this week. In a separate decision Monday, Reeves indicated that he would invalidate the part that allowed clerks to recuse themselves from issuing marriage licenses to same-sex couples. But that ruling didn’t address any other aspects of the law, which was set to go into effect July 1. Private business owners, such as caterers, and other state officials, such as public school counselors, were still allowed to refuse marriage-related services to gay, lesbian and transgender Mississippians.

Thursday’s ruling, however, invalidates every facet of House Bill 1523. The two lawsuits it addresses, Barber v. Bryant and Campaign for Southern Equality v. Bryant III, took aim at the whole law by arguing it violated the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. These prohibit government from favoring one religion over another and one group of citizens over another, respectively.

“(House Bill 1523) said that those three religious beliefs and no others get preeminence in Mississippi, and if you share one or more of them then you essentially get a free pass to do whatever the hell you want, no matter how discriminatory or offensive it is to your gay and lesbian neighbors,” said Roberta Kaplan, lead attorney on the Campaign for Southern Equality lawsuits.

“And because it has those elements, it is clearly, in our view and Judge Reeves’s view, a violation of this fundamental principle, one of the principles our country really was founded on,” Kaplan said. “It can’t preference one religion over another, it can’t take sides in religious debate, it needs to stay neutral. And that’s exactly what this statute does, it’s kind of a classic establishment clause violation.”

You can see a copy of the ruling here. As Mark Joseph Stern writes in Slate, this is such a bad loss for anti-LGBT activists that it calls into question their entire post-Obergefell strategy. And that is relevant to Texas because as we know those forces have big plans for the next legislative session. I doubt this will make them seriously reconsider anything – as we well know, objective reality is not their strong suit – but it draws a clear roadmap for the plaintiffs and attorneys that will line up to challenge their efforts in court. If this does get appealed, that goes to the Fifth Circuit, so if they uphold Judge Reeves’ decision, it would apply to Texas as well. All in all, a very good thing. Link via Daily Kos.

Republicans gear up for full blown gay panic in 2017

You have been warned.

RedEquality

Still angry about the Supreme Court’s mandate, some conservative lawmakers hope that it is someday overturned. In the meantime, they expect to propose a series of what they call religious liberty bills to blunt its impact. Those efforts worry liberal advocacy groups — Steve Rudner, with Equality Texas, called them “backlash” to the marriage decision — who argue such legislation is discriminatory.

Both sides agree that last year’s landmark ruling ignited a debate over social issues in Texas that will demand the attention of the next Legislature.

Nationwide, celebrations greeted the Supreme Court’s decision to legalize same-sex marriage. But in Texas, whose longtime ban on same-sex marriage was overturned, some lawmakers made it clear that the debate was not over.

Lt. Gov. Dan Patrick quickly condemned the decision as federal overreach. Attorney General Ken Paxton declared “religious liberty” the next fight, charging that “the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely held religious beliefs.”

[…]

A year later, opposition to same-sex marriage for religious reasons has become the focal point of demands that the Texas Legislature act in response.

“I do think that it is very important that we don’t lose sight of the fact that part of religious freedom is that citizens do have that inherent right to not have to do things that put them at odds with their religion,” said state Rep. Cecil Bell Jr., R-Magnolia.

State Sen. Charles Perry, a Lubbock Republican who described the ruling as an “assault on family values,” expects that charge to be a focus when lawmakers convene next year.

“I’m not going to be surprised at whatever level on both sides this is attacked,” Perry said.

While Perry has not seen specific legislation, he hopes the Legislature addresses the rights of businesses to choose whom to work with — such as same-sex couples — and suggested “that’ll be one of the more contentious debates.”

Some laws have already passed: Before the Supreme Court decision last year, the 84th Legislature passed the Pastor Protection Act, which allows clergy members to refuse to conduct same-sex marriages. Some lawmakers have suggested more responses along those lines, such as allowing religious adoption agencies to refuse to place children with same-sex couples or granting tax accommodations to religious organizations.

Bell said he would not be surprised to see proposals to limit the abilities of cities to extend anti-discrimination protections to gay and transgender people. Lawmakers also expect to debate transgender people’s bathroom access.

Perry argues that the federal government has forced Texas to address the issue. “It will unfortunately take up time during the session,” he said. “I hate that, but at the end of the day, it’s important. The underlying principle here is that we had a Supreme Court that overran.”

You know how I feel about this. This is what the Republican Party in Texas is about. I hope the business lobby that has enabled them for decades is happy about it, because they’re going to spend another session trying to stop them from doing anything that will hurt the state and likely wind up losing in court. The rest of us need to be in on that fight as well. I don’t know what’s going to happen, but I do know what will happen if we let it, and it ain’t good.

On Dan Patrick’s hostility to the LGBT community

Ross Ramsey sums up the Dan Patrick tweetorrhea situation and tries to make sense of it.

Not Dan Patrick…yet

Lately, the lieutenant governor has been focused on transgender Texans and which bathrooms they should use — those of their identity or those of the gender listed on their birth certificates. His argument is that perverts — men, to be specific — will find their way into women’s restrooms and locker rooms if the lines that separate the genders are blurred by recognition of transgender rights.

Patrick is not alone in this. It’s a hot issue in conservative circles with recent flashpoints in Houston, where the city’s Houston Equal Rights Ordinance was voted down last year; in North Carolina, where the backlash against a state law has included canceled conventions, concerts and corporate relocations; and in Texas, where the Fort Worth school district’s policy accommodating transgender students raised Patrick’s ire and led him to call for new leadership at the school district.

Patrick was using social media as recently as last Friday to beat the drum on the bathroom policies in Fort Worth schools. He’s been pushing that school district on one hand while shaking the other at federal education officials whose policies line up with Fort Worth ISD’s.

And Patrick is a longtime foe of same-sex marriage. His mis-tweet on that subject — “MARRIAGE= ONE MAN & ONE MAN…” brought him some social media ridicule in February 2014, when he was running for his current job. He meant one man and one woman. His real point was in the next lines: “Enough of these activist judges. FAVORITE if you agree. I know the silent majority out there is with us!”

When the U.S. Supreme Court ruled bans on those marriages are unconstitutional, Patrick responded by asking the state’s top lawyer whether local officials could be forced to perform the ceremonies.

The lieutenant governor has a track record with the LGBT community. They have him marked as an opponent. He seems to have them marked the same way. Whatever else might be said about it, they don’t trust each other.

No wonder they read his Sunday morning post the way they did, assuming the worst. Their mutual history taught them to expect it.

I don’t disagree with Ramsey’s diagnosis, but the whole thing is so bloodless I feel like I’m reading about mannequins. This isn’t a dry policy dispute over tax credits or land use or what have you. It’s about people and their inclusion in society. To put it simply, Dan Patrick does not want LGBT people to exist. He wants them all to go back into the closet where he never has to see or hear or think about them again, or better yet to have their gayness or trans-ness prayed away. It doesn’t get any more fundamental than this. The article doesn’t convey that.

There’s another aspect to this that has to be said: Dan Patrick is wrong. He’s wrong on any number of levels, but most importantly he’s wrong as a matter of basic American values, in that “all men (sic) are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” We have been down this road many times in our history, to remind ourselves that “Life, Liberty and the pursuit of Happiness” apply to all of us, we continue down that road today, and we will still be on that road years from now. Look at it this way: In 20 or 30 years’ time, when today’s children are trying to explain our current events to whatever they’ll be calling the millennials of the future, will Dan Patrick be seen as a brave defender of America’s values, or will he be seen as another incarnation of Bull Connor? I know which outcome I’d bet on.

Paxton sues over Obama directive on transgender bathroom access

A more transparent publicity stunt you would be hard-pressed to find.

Best mugshot ever

Best mugshot ever

Texas, joined by 10 other states, filed a lawsuit Wednesday to stop a federal directive instructing school districts to let transgender students use the bathroom that corresponds with their gender identity, Attorney General Ken Paxton announced Wednesday.

Calling the Obama administration guidelines “outside the bounds of the constitution,” the McKinney Republican said that the state was taking action to protect a school district near the Oklahoma border that had passed a policy earlier this week requiring students to use bathrooms according to the gender cited on their birth certificates.

“Harrold Independent School District fulfilled a responsibility to their community and adopted a bathroom policy puts the safety of their students first,” said Paxton. “Unfortunately the policy placed them at odds with federal directives handed down earlier this month. That means the district is in the crosshairs of Obama administration which has maintained it will punish anyone who doesn’t comply with their orders.”

The other states in the lawsuit are Alabama, Arizona, Georgia, Louisiana, Maine, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin. Paxton said they had joined because the issue was of national importance.

“It represents just the latest example of the current administration’s attempt to accomplish by executive fiat what they couldn’t accomplish democratically in Congress,” he said.

The Obama administration guidelines stated transgender students have the right to use their preferred bathrooms in public schools because of Title IX, a federal statute that prohibits discrimination on the basis of gender at education institutions that receive federal funding. It does not have the force of law, though school districts could risk losing federal money if they do not comply.

Harrold superintendent David Thweatt, who joined Paxton at the Austin news conference, said his school board had passed the policy out of concern for the “safety, security, and dignity of the children.” None of the 100 students currently enrolled there identify as transgender, he said.

Concerns about the safety of allowing transgender people to access the bathrooms that correspond to their gender identities draw deep skepticism from LGBT advocates. With virtually no evidence of attacks coming from such policies in any states, they say, efforts like those ramping up in Texas instead serve to further stigmatize transgender people and perpetuate violence against them.

When asked Wednesday, neither Paxton nor Thweatt could point to instances where allowing transgender students access to the bathrooms that correspond to their gender identities had threatened anyone’s safety.

We all know why that’s true, right? Paxton had previously sent a letter to the feds asking for some “clarifications” on the directive, which was clearly some laying of groundwork for the lawsuit. It’s not the first time Paxton has expressed a deep interest in people’s potty usage, nor is he the first Republican to do so. To get some idea of how ridiculous this all is, Andrea Grimes digs in a bit:

Harrold ISD passed its policy, which according to Paxton makes “accommodations for special circumstances on a case-by-case basis,” on Monday. That’s two days ago. The Obama administration issued its guidelines nearly two weeks ago.

Apparently one of President Obama’s many skills is oppressing people from the past, using time travel. What a mighty coincidence that, on May 23, Harrold ISD, which says it has no transgender students, decided to pass a papers-please bathroom policy that affects none of its students. And then on May 25, Harrold just happened to become the lead plaintiff in an 11-state federal lawsuit against the federal government, arguing that guidelines Obama issued before Harrold even had a bathroom policy violate Harrold’s right to have whatever non-existent policy it wanted, two weeks before.

When I pressed the Harrold ISD superintendent on the curious timing of the policy’s passage, he responded: “We passed the policy because we believe in it. We think it’s necessary to protect the security and safety and dignity of children.”

Well, speaking of security and safety — from what, exactly? At Wednesday’s presser, reporters put pressure on Paxton to cite any examples of transgender people of any age doing harm to others in public facilities. Because it would be impossible, even for a great legal mind like Paxton’s, to present evidence for something that doesn’t actually happen, the AG spun questions back to familiar territory: defending the Constitution, bad Barack Obama, the evil fed, etc.

She documents the more recent previous cases of potty panic from the state GOP, which shows no sign of letting up. Think Progress adds on:

The entire lawsuit is based on a false premise. As Paxton explained at the beginning of Wednesday’s press conference, the federal government’s directives “open all school bathrooms to people of both sexes.” The lawsuit similarly suggests that the guidance requires that “persons of both sexes have a right to use previously separate sex intimate facilities.”

Drawing this conclusion requires both a deliberate misreading of the guidance and a rejection of who transgender people are. The letter issued earlier this month by the Department of Justice (DOJ) and Department of Education (DOE) specifically affirms that “Title IX’s implementing regulations permit a school to provide sex-segregated restrooms, locker rooms, shower facilities, housing, and athletic teams, as well as single-sex classes under certain circumstances.” It simply adds that when doing so, schools must allow transgender students to participate in accordance with their gender identity.

The Texas lawsuit doesn’t even use the word “transgender” except when quoting from other documents, and it uses scare quotes to mock the concept of “gender identity” throughout. After describing the guidance as a “massive social experiment” that runs “roughshod over commonsense policies protecting children and basic privacy rights,” it proceeds to layout an unrecognizable understanding of gender identity.

The suit also claims that the guidance requires “seismic changes” to how the schools operate, because they must allow students to “choose the restrooms, locker rooms, and other intimate facilities that match their chosen ‘gender identity’ on any given day.”

The notion that a gender identity can be chosen or that it can flipflop by the hour ignores the definition provided by the DOJ and DOE — that it is “an individual’s internal sense of gender.” The guidance also repeatedly refers to providing treatment that is “consistent” with students’ gender identity, something that could not be done but for the assumption that their identity is, in fact, consistent.

[…]

The lead counsel on the case is Austin Nimocks. Before working for Paxton, Nimocks was senior counsel for the Alliance Defending Freedom (ADF), where he helped them repeatedly lose caseschallenging marriage equality. ADF is behind multiple other lawsuits challenging the transgender guidance and has also persuaded schools to pass anti-trans policies like Harrold’s by promising to provide free counsel.

Despite the losing record Nimocks brings to the case, he may prevail at the district court level. The only judge on the bench in the federal district court in Wichita Falls, where Harrold ISD is located and where the suit was filed, is Judge Reed O’Connor. In 2014 and early 2015, when federal judges were ruling in favor of same-sex marriage across the country, O’Connor was one of the only judges — and indeed, one of the last judges anywhere — who ruled against it.

So there may be a step or two backwards before we can move forward. Though who knows, maybe it will be harder than even Ken Paxton thinks to get a judge to buy his mishmash of baloney and fact-free fearmongering. I look at it this way: The reason why the courts began ruling against same-sex marriage bans is that the argument against same-sex marriage ultimately boiled down to discredited studies claiming that children raised by same-sax couples did worse than other children, and a general animus towards the whole idea. The former couldn’t stand courtroom scrutiny, and the latter was ruled to be an insufficient cause for a law that targeted a class of people. This is a different kind of case here, since it’s the plaintiffs who are seeking restrictions, but I think this basic principle will eventually play out in the courts. There’s no justification for the anti-trans laws, and I am confident that the courts will, by and large, rule that way. It may yet take awhile, and Ken Paxton may get the legal victory to go with the political bonanza that he hopes to reap, but in the end I believe justice will prevail. The Chron, the Current, Trail Blazers, the AusChron, and the Press has more.

Supreme Court dismisses effort to dissolve state’s first same-sex marriage

I could be wrong, but I believe this closes the books on all the same-sex marriage litigation from last year.

RedEquality

The Texas Supreme Court on Friday tossed out Attorney General Ken Paxton’s effort to undo the union of the first gay couple to legally wed in Texas. The court-ordered same-sex marriage of two Austin women had occurred months before such unions were legalized by the U.S. Supreme Court.

In light of the U.S. Supreme Court’s landmark June ruling that same-sex marriage is protected by the U.S. Constitution, the state’s highest civil court dismissed Paxton’s request as moot.

The case dates back to February 2015 when Austin residents Sarah Goodfriend and Suzanne Bryant were legally wed after obtaining a marriage license from the Travis County clerk under direction from state District Judge David Wahlberg.

At the time, Texas’ constitutional ban on marriage was still in effect. But Wahlberg ordered Travis County Clerk Dana DeBeauvoir to issue the license under special circumstances because Goodfriend was diagnosed with ovarian cancer a year earlier. Wahlberg ordered the county to “cease and desist relying on the unconstitutional Texas prohibitions against same-sex marriage.”

Although Wahlberg’s court order was specific to the Austin couple, Paxton challenged the marriage before the Texas Supreme Court, which later blocked Wahlberg’s ruling to prevent other same sex couples from obtaining marriage licenses. A day after the couple wed, Paxton asked the court to overturn the order and void the marriage license to “avoid the legal chaos” that could arise.

See here and here for the background. Paxton had dropped his appeal of a similar case in July, after the Obergfell ruling; I had thought at the time that he’s also drop this one, but clearly he did not. Three of the Supreme Court justices were critical of the judge who granted the license and of the attorney who represented the plaintiffs, and I can see where they’re coming from on that, but in the end that didn’t matter. The marriage is valid, as it should be and should have been, and this is now a settled question. There are still plenty of battles to wage, but we can cross this one off the list.

I now pronounce you man and machine

Yeah, no.

Chris Sevier says he’s being denied his right to marry – his computer.

The persistent Tennessee lawyer – who has carried his challenge to same-sex marriage to courthouses across the nation – has filed a lawsuit in federal court in Houston saying he and his 2011 MacBook were rejected for a marriage license in Harris County.

He is suing the Harris County District Clerk, Texas Gov. Greg Abbott and Texas Attorney General Ken Paxton, saying his 14th Amendment right to marry is being denied. Sevier has filed similar challenges for the right to marry a machine in Tennessee and Utah.

Paxton’s office, however, is asking U.S. District Judge Alfred H. Bennett to hit the delete button on the lawsuit.

His office filed court papers asking that the lawsuit be dismissed, arguing that the U.S. Supreme Court’s landmark Obergefell decision in June allowing same-sex marriage does not extend to man and machine.

“The right to marry one’s computer is not an interest, objectively, deeply rooted in the nation’s history and tradition such that it qualifies as a protected interest,” Paxton’s brief argued.

You will, I’m sure, be shocked to learn that the plaintiff is an activist who believes that same-sex marriage has “hijacked the Constitution”, whatever that means. I had thought it would be impossible to make an argument against same-sex marriage that is stupider than the “man on dog” and box turtle claims of the recent past, but clearly I was wrong.

Once again with “religious freedom” legislation

I have three things to say about this.

RedEquality

State Rep. Matt Krause, R-Fort Worth, says he plans to re-file legislation next session that would supplement the state’s existing law to allow business owners to refuse services to people whose lifestyles clash with their religious beliefs.

“Nobody should be forced to go against their conscience or religious beliefs,” he said.

One of the key principles upon which the country and state were founded is the protection of religious beliefs, he said.

But just like in the 2015 legislative session, Krause is expected to face opposition from groups in the state’s business community. Bill Hammond, president and CEO of the Texas Association of Business, said corporations would look to other states when it is time to relocate if Krause’s vision becomes a reality.

“You have to weigh the negative impact on Texas if this were to become the law of the land,” Hammond said. “It’s flustering to see.”

Krause said next legislative session, he again would seek to change the state constitution – which requires a two-thirds vote of the Legislature and voter approval at the ballot box, a much more difficult hurdle to clear than just the simple majority need to pass regular bills – because religious freedom deserves constitutional protection.

“I wanted to put it in the constitution to make it even stronger,” Krause said. “It is still something I think is very important.”

Hammond said the constitutional amendment would be harder to undo if a future legislature decided that the policy is harmful or discriminatory.

1. Of course a constitutional amendment would be harder to undo. That’s the reason why the 2005 Double Secret Illegal Anti-Gay Marriage amendment was pushed through. We could have gone decades before there was a two thirds majority in both houses to repeal that, and the same would be true for Krause’s anti-equality measure. The good news is that even at current levels, there isn’t a two-thirds majority of Republican legislators in either house (*), so the task of blocking it is eminently doable. Yes, there are a few Democrats out there who can’t be counted on – and yes, I’m looking at you, Sen. Lucio – but we only need to block it in one chamber, and the prospects of picking up at least a seat or two in the House are pretty good. So while the threat of ordinary legislation making it through is very real, the bar for a constitutional amendment is likely too high to clear.

2. Let’s be very clear about this: Despite what Krause and others like him my say, a right to systematically refuse service, housing, employment, or whatever else – the list goes on and on – to a group of people is a right to discriminate, and a right to discriminate against someone is a right to discriminate against anyone. And I’m sorry, but if your sincerely-held beliefs tell you that you must not treat some group of people as fellow human beings, then your sincerely-held beliefs are immoral and wrong.

3. Have I mentioned lately that the business lobby could put its considerable resources towards defeating legislators like Matt Krause and electing ones that better represent their interests? Because they totally could if they really wanted to. Perhaps the North Carolina experience will provide them sufficient incentive to do so.

Paxton’s hack hire

What else do you expect?

Best mugshot ever

Best mugshot ever

When Texas Attorney General Ken Paxton named Jeff Mateer as his new first assistant earlier this month, conservatives lauded him for a legal background that’s highlighted by his work on religious-liberty cases.

But Mateer’s background is drawing fire from those who champion gay rights and church-state separation, particularly since the Republican attorney general’s record already includes advising clerks that they could cite their faith as a reason to refuse to issue same-sex marriage licenses.

Mateer isn’t backing away from views that prompt those concerns, saying in a Friday statement to the Express-News, “It’s vitally important to ensure that the state is prohibited from interfering with the free exercise of religion and I look forward to defending these liberties in my new role.”

He quoted the late U.S. Supreme Court Justice William Rehnquist’s description of a wall of separation between church and state as a “misleading metaphor.”

Robert Salcido Jr., president of the League of United Latin American Citizens Council 22198 in San Antonio, wrote in an open letter to Paxton that Mateer’s appointment “presents the appearance the Texas Attorney General is moving the church into a public office. It further suggests your office is setting a course targeting the LGBTQ citizens of Texas to deny our civil rights gains.”

The council – which focuses on fostering positive communication between the lesbian, gay, bisexual, transgender, queer (LGBTQ) and Latino communities – “will monitor his actions and when necessary take appropriate legal action to protect our community,” Salcido wrote. “We will also ensure that the broader community around the state that is committed to extending civil rights to all Texans is informed of your office’s actions.”

The Texas Freedom Network, which describes its mission as monitoring the “far right,” and Americans United for Separation of Church and State said Mateer made an alarming comment during a 2013 speech.

“I’ll hold up my hundred-dollar bill and say, ‘For the first student who can cite me the provision in the Constitution that guarantees the separation of church and state verbatim, I’ll give this hundred-dollar bill. … It’s not there. … The protections of the First Amendment protect us from government, not to cause government to persecute us because of our religious beliefs,” he said then, according to the network.

Kathy Miller, network president, said in a statement last week that it is “deeply troubling to see the irresponsible appointment of a foot soldier in the culture wars who has explicitly argued that this key constitutional principle protecting religious freedom in America is essentially a myth.”

The Observer reported on this last week. Look, we know who and what Ken Paxton is, and we know what he’s about. All he cares about are primary voters and making sure his conservative credentials are sufficiently burnished to ensure that none of his colleagues feel the need to distance themselves from him. It’s the main thing he’s good at. TFN has more.

One State Bar complaint against Paxton dismissed

A little bit of good news for our embattled AG, but not much.

The State Bar of Texas has dismissed one of two pending complaints against Attorney General Ken Paxton.

The dismissed complaint, filed in February by attorney and blogger Ty Clevenger, requested that the bar investigate and penalize Paxton for his failure to register as a financial adviser while steering business to a friend’s investment firm.

[…]

In a letter explaining the move, Assistant Disciplinary Counsel Rita Uribe said the bar dismissed the complaint because “it is the subject of a pending criminal complaint.” If Paxton is convicted, she added, he will be “subject to compulsory discipline.”

Here’s Clevenger explaining why that is unsatisfactory to him.

Best mugshot ever

Best mugshot ever

As I explained in my February 11, 2016 blog post, my grievance against Mr. Paxton had far less to do with Mr. Paxton than the state bar itself.  Time and again, I’ve watched the state bar protect politically-connected attorneys, some of whom have committed serious crimes. And now the practice continues.

According to a March 9, 2016 letter from OCDC, my grievance was dismissed because the allegations are “the subject of a pending criminal case against [Mr. Paxton].”  But as I noted in the appeal that I filed this morning, nothing in the disciplinary rules prevents OCDC from prosecuting attorney misconduct charges concurrently with criminal charges.

On the contrary, “[t]he processing of a Grievance, Complaint, Disciplinary Proceeding, or Disciplinary Action is not, except for good cause, to be delayed or abated because of substantial similarity to the material allegations in pending civil or criminal litigation.” Texas Rule of Disciplinary Procedure 15.02. Granted, a delay or abatement differs from an outright dismissal, but the spirit of the rule certainly implies that OCDC should not dismiss a case simply because a related criminal case is pending. In fact, the OCDC prosecuted my grievance against former Robertson County District Attorney John Paschall concurrently with the overlapping criminal charge.

Under normal circumstances, however, the OCDC will not prosecute a politically-prominent attorney. In this case, the OCDC dismissed a grievance filed by Erica Gammill against Mr. Paxton in 2014 because that grievance supposedly failed to state a disciplinary violation (even though Mr. Paxton had already admitted his guilt in writing and under oath).  After Mr. Paxton got indicted for the very same allegation, I re-filed Ms. Gammill’s grievance along with a copy of the indictment.

And now the OCDC refuses to investigate because a criminal case is pending, which makes this a classic Catch 22.  If you file a grievance against a politician lawyer before he gets indicted, the state bar will dismiss the grievance — no matter how damning the evidence — on the grounds that you failed to state a violation. But if you file the grievance after he gets indicted, then the state bar will dismiss your grievance because a criminal case is pending.  Is it any wonder that my profession has such a miserable reputation?

There are good reasons for prosecuting the cases concurrently. First, the burden of proof differs between a disciplinary charge and a criminal charge. If the special prosecutors fail to prove Mr. Paxton’s guilt beyond a reasonable doubt, the OCDC might nonetheless prove him culpable on the preponderance of the evidence. Second, the four-year limitations period for a disciplinary charge will expire this summer, i.e., before Mr. Paxton’s criminal case goes to trial.  Maybe the Board of Disciplinary Appeals will do the right thing and reverse the OCDC, but the board sided with the OCDC the first time it buried this case.

I’d be very curious to hear what the attorneys who read my blog think about this. In the meantime, there is another complaint pending against Paxton, having to do with his bogus “advice” to County Clerks on how to evade the Supreme Court ruling on same-sex marriage. That one isn’t tied to an indictment, and the Board of Disciplinary Appeals reinstated it after an initial dismissal. So maybe one way or another the State Bar will have to take action.

SCOTUS upholds same-sex adoption rights

Awesome.

RedEquality

The U.S. Supreme Court in a victory for gay rights ruled Monday that states must honor adoptions by same-sex parents who move across state lines.

Citing the Constitution’s “full faith and credit” clause, the justices in a unanimous opinion rebuked the Alabama Supreme Court for denying a lesbian’s right to visit the three children she had adopted and raised with her former partner in Georgia.

Last year, a divided Supreme Court said same-sex couples had a constitutional right to marry in every state. But to the surprise of gay-rights advocates, the Alabama Supreme Court led by Chief Justice Roy Moore said in September that the woman’s adoption decree from Georgia was “void” and would not be honored.

Without bothering to hear arguments, the justices reversed the Alabama Supreme Court in an opinion that spoke for the full court.

The Alabama ruling “comports neither with Georgia law nor with common sense,” the justices said. “States may not disregard the judgment of a sister state because it disagrees with the reasoning or deems it to be wrong.”

Sarah Warbelow, legal director for the Human Rights Campaign, said the decision resolves one of the key outstanding issues in the wake of last year’s marriage ruling. “Everyone was waiting and watching for this case,” she said. “This should be the end of it now that the Supreme Court has weighed in.”

While the court’s conservatives dissented last year and said states should decide the marriage laws, they agreed Monday that the Constitution requires states to recognize legal judgments from other states.

That’s the nickel summary. What’s important about this ruling, in addition to what it actually was, is that it was unanimous and it came without any oral arguments. SCOTUS didn’t need to hear what the state of Alabama and any of its supporters had to say for themselves to know that their actions were wrong. That’s about as strong a message as they could send, one that may be loud enough for the Texas Legislature to hear. Don’t get me wrong, so-called “religious freedom” bills are definitely going to be at the top of the priority list. But with this clear message from SCOTUS, the bad guys may be forced to rein it in just a little. ThinkProgress and SCOTUSBlog have more.

Get ready for more “religious freedom” bills

Gird your loins.

Sen. Joan Huffman

The next Texas legislative session is almost a year away, but Senate Republicans are already zeroing in on proposals to bolster legal protections for religious opponents of same-sex marriage after its legalization by the U.S. Supreme Court last year.

At a hearing of the Senate State Affairs Committee on Wednesday, some Republicans appeared to endorse a piecemeal approach to passing legislation shielding religious objectors to same-sex marriage instead of pushing for more comprehensive state constitutional amendments like Indiana’s embattled “religious freedom” law.

Republican state Sen. Joan Huffman of Houston appeared to support prioritizing “targeted pieces of legislation” like last session’s Pastor Protection Act, which codified protections for clergy members who refuse to conduct same-sex marriages, “rather than to try to redefine anything.”

“I think that was an approach that would be a path for the Legislature, for this committee to examine,” said Huffman, who chairs the committee. “I don’t think we really took that push in the last Legislature.”

Piecemeal measures could include protections for faith-based adoption agencies that refuse to place children with same-sex couples, tax accommodations for religious organizations and housing policies at religious schools.

LGBT rights activists have described some of those proposals as “license to discriminate” laws. At Wednesday’s hearing, they reiterated that state lawmakers are still required to strike a balance between religious rights and equal rights, particularly when it comes to behavior by government employees.

There is nothing in the U.S. Supreme Court’s ruling on same-sex marriage that “deprives someone of their right to religious liberty,” Rebecca Robertson, legal and policy director of the American Civil Liberties Union of Texas, told the committee. But “people who are acting on the behalf of the government are not free to impose their religious beliefs,” she added.

[…]

At Wednesday’s hearing, Bill Hammond, chief executive of the Texas Association of Business, warned lawmakers against picking up that mantle in the next legislative session. He recalled Indiana’s religious freedom law, which opponents have claimed enables discrimination against the LGBT community, and the economic fallout that state faced when that law came under scrutiny.

Huffman retorted that the committee’s charge was to focus on religious protections and “not to discriminate.”

“Perception is probably greater than the facts, and that would be the perception around the country that Texas is no longer a welcoming state,” Hammond responded.

Etymological question: If their genders had been reversed, we’d call what Sen. Huffman did with Bill Hammond “mansplaining”. What is the correct technical term for her condescending insistence that she knows better than he does – that in effect, she knows his business better than he does? I’m thinking no such word exists, so what should we call it? Senatorsplaining? There’s an essence to that exchange that I can’t quite isolate, and with it lies the key to identifying the trope. Any suggestions here would be appreciated.

Such questions aside, it’s clear we’re going to get a lot more of that next session. Dan Patrick and his acolytes know what they were elected to do, and “govern” isn’t really on their list. And in case Bill Hammond needs someone else pointing out his business to him, that exchange was with one of his group’s supposed friends. If only your enemies cared so little about your group’s goals and values, Bill.

Paxton finds another way to be in trouble

Like fleas to a dog, trouble just follows this guy around.

Best mugshot ever

Best mugshot ever

Remember that historic Supreme Court ruling last year? The one that ended decades of discrimination against same-sex couples who wanted to get married?

Texas Attorney General Ken Paxton surely does because it’s probably still causing him headaches, in addition to his legal woes. The Lone Star State’s top lawman is accused of securities fraud.

We just learned that on January 29, the Board of Disciplinary Appeals, appointed by Texas’ Supreme Court, decided not to dismiss a grievance against Paxton filed with the State Bar Chief Disciplinary Counsel for an alleged violation of the Texas Disciplinary Rule of Professional Conduct, which means the Texas State Bar has been ordered to continue a disciplinary investigation into the alleged violation.

That whole defying the Supreme Court thing is good for television spots, but, not so good in reality.

You can see a copy of the complaint embedded in the story. Amazing, right? I looked in my archives and found that somehow, this had fallen entirely below my radar – I have no posts that mention this, as far as I can tell. So off to Google we go, and our first stop to get up to speed is this Trib story from July 3.

Roughly 150 Texas attorneys have signed on to a letter threatening to file a complaint with the State Bar of Texas against Attorney General Ken Paxton for his response to the U.S. Supreme Court’s ruling on same-sex marriage.

“It seems to us that your edict to encourage Texas clerks to violate a direct ruling of the United States Supreme Court violates” the State Bar’s rules requiring attorneys to uphold the U.S. Constitution, the letter states.

After the Supreme Court legalized gay marriage nationwide, Paxton issued an opinion telling Texas clerks they did not have to issue marriage licenses to same-sex couples if it violated their religious beliefs — though he suggested that they could face litigation.

On Friday, Paxton spokeswoman Cynthia Meyer said the attorney general’s legal opinion was “a nonbinding interpretation of the law,” one that “emphasizes the importance of protecting religious liberty while enforcing the Supreme Court’s expanded definition of marriage.”

If Paxton doesn’t change his direction to county clerks in the coming weeks, Steve Fischer, a former director of the State Bar of Texas, said he plans to file a complaint he anticipates hundreds of other lawyers will sign onto.

“I think he could very easily be disbarred,” said Fischer, who wrote the letter sent to Paxton’s office Friday. “He violated his oath to specifically uphold the United States Constitution.”

Note the reference at the end of this story to a complaint that had already been filed by then by former State Rep. Glen Maxey. This Courthouse News story covers that.

Glen Maxey, a member of the Texas Democratic Party executive committee and the state’s first openly gay legislator, filed a grievance with the State Bar of Texas on June 30.

It came two days after Paxton issued a nonbinding advisory opinion urging county officials not to issue the licenses if they have personal religious objections, but warned that if they did so they would probably be sued.

Paxton’s letter came after the Supreme Court’s landmark ruling in Obergefell v. Hodges on June 26 that struck down several states’ same-sex marriage bans.

Maxey said it is “irresponsible” for an elected official and attorney to tell other elected officials to break the law.

“He’s misleading county and state officials based on a false premise that they can discriminate against same-sex couples,” Maxey said in a July 3 statement. “This past Friday, the Supreme Court was clear with their decision to let same-sex couples marry. Paxton took an oath to defend and protect the Constitution. He must comply with the court’s decision.”

You can find a copy of Maxey’s complaint here. The grievance for which all those attorneys’ signatures were collected, which is the one referenced in the first link above, was eventually filed later in July. (The Trib, my usual source for this kind of political esoterica, oddly had the story about the complaint being filed in their subscription-only Texas Weekly section.) Why the wait? Steve Fischer, the former State Bar director, explains his reasoning.

Maxey, however, is not a lawyer and didn’t allow Paxton the 25-day implementation period, as provided by U.S. Supreme Court Rule 45 and in the 5th Circuit Court of Appeals mandate, which specified a July 17 compliance deadline.

Attempting to steer clear of politics, Fort Worth lawyer Brian Bouffard and I sent a warning to the attorney general that he must comply with the law. We posted on Facebook that we would collect attorney signatures, but quit after receiving about 300 in two days. If a grievance becomes necessary, we will have many more.

We allege the Texas attorney general has violated several of the State Bar Disciplinary Rules, most of which are found in Section 8.04 a (4) obstruction of justice, and 8.04 (a) 12 that he has violated his attorney oath to uphold the law of the United States. As the state’s top legal officer, he can’t be offering county clerks any legal ammunition to circumvent the law when it’s clear, to most legal analysts, they would be “shooting blanks.”

The State Bar of Texas, the licensing authority for all Texas lawyers, is 100 percent nonpartisan. When a complaint is filed it goes to State Bar disciplinary counsel and if they find grounds, Paxton would be required to file an answer. If his answer is insufficient, he would be given the choice of appearing before a grievance panel of a few lawyers and perhaps one nonlawyer or having his case heard in district court.

The penalties range from a reprimand to license suspension, and in the most egregious cases, disbarment. Usually, these cases are private and confidential; however, the bar has made an exception for public interest cases.

Many believe the State Bar does not go after its own, and it is accurate to say most complaints against lawyers are dismissed. The reason, however, is that the vast majority of filings are rancorous, rambling rants that do not allege a specific violation.

We hoped Paxton would take a deep breath and proclaim that although the Supreme Court decision violated his personal and religious beliefs, he would follow the law.

We know how that turned out. Which brings us back to today. Towleroad has an excerpt from the Board of Disciplinary Appeals’ ruling.

On January 29, 2016, the Board of Disciplinary Appeals appointed by the Supreme Court of Texas considered the appeal from the dismissal from the above grievance by the Office of the Chief Disciplinary counsel of the State Bar of Texas. After reviewing the grievance as filed with the sState Bar Chief Disciplinary Counsel’s office and no other information, the Board grants the appeal, finding that the grievance alleges a possible violation of Texas Disciplinary Rule of Professional Conduct 1.02(c).

The Board of Disciplinary Appeals will now return the case to the Office of the Chief Disciplinary Counsel for investigation and a determination whether there is just cause to believe that the attorney has committed professional misconduct. The Office of the Chief Disciplinary Counsel will notify both parties of each step of the process, including asking the attorney to respond to the complaint. For information concerning the handling of the case from this point forward, please contact the Austin Office of Chief Disciplinary Counsel.

And here’s the Trib story, and the Chron story, which recap everything we’ve discussed here in a much more concise fashion. The one bit of information mentioned in the Trib piece that I haven’t covered here is that the complaint was initially dismissed by the Chief Disciplinary Counsel’s office; it was the appeal to the Board of Disciplinary Appeals that brought us to this point. I can hardly wait to see what comes next. Trail Blazers and Daily Kos have more.

Transgender people can now get correct birth certificates

Excellent news.

Last week, Texas began giving trans people the option of sealing their old birth certificates and issuing new ones, according to Dallas attorney Katie Sprinkle.

Previously, Texas issued amended certificates and those were only issued with a surgeon’s letter. Now, Texas is sealing old records and issuing new birth certificates with a court order. That makes getting accurate documents earlier in the transition process possible.

The change is part of the Texas marriage equality ruling. U.S. District Judge Orlando Garcia ordered Attorney General Ken Paxton and the Texas Bureau of Vital Statistics to issue corrected death certificates for same-sex couples acknowledging their relationship as “spouse” rather than significant other.” That affected inheritance.

As part of that motion filed by a Conroe, Texas gay man, Garcia asked the attorney if Texas was treating LGBT people differently than straight people on other documents. The attorney said birth certificates needed to be addressed.

As part of its update of birth certificates reflecting both adoptive parents or parents who used a surrogate, Texas updated its policy on reissuing birth certificates to trans men and women.

Since a court order can be used to prove a couple are both the parents of a child and should both be on a birth certificate, a court order will suffice for a trans person to use to get a new birth certificate reissued.

And since the original birth certificate in an adoption is sealed, the original birth certificate for a trans person will also be sealed.

See here and here for some background. You may recall that this issue nearly got Ken Paxton held in contempt, but in the end he folded and justice was served. A court order is still needed to get these updated birth certificates, and it may take a couple of weeks to go through. See a lawyer if this is something you might want or need to do.

Garcia to challenge Green in CD29

This will be interesting to watch.

Adrian Garcia

Adrian Garcia

Former Harris County Sheriff Adrian Garcia is challenging 23-year Democratic Congressman Gene Green in the 29th district, he told the Chronicle Monday, a risky intra-party challenge of a popular incumbent.

The move comes less than two months after Garcia’s third-place finish in the Houston mayor’s race, which already had created some ill will among local Democrats upset that he gave up his post as sheriff, costing the party the highest-profile countywide office. The GOP-led Harris County Commissioners Court appointed Republican Ron Hickman, the former Precinct 4 constable, to the sheriff’s post.

“What I am doing is with all the intention to strengthen the party and help cultivate a Hispanic electorate that can help move the country forward and be a part of the process of addressing the critical issues that are a challenge throughout,” Garcia told the Chronicle from the Harris County Democratic Party headquarters. “I’m not challenging Gene Green. I’m challenging Donald Trump with all of his vitriol, rhetoric, dividing the community and insulting hardworking men and women.”

I’d been hearing some chatter about this over the past couple of weeks, so I can’t say this took me by surprise. It’s still a big enough deal to make you step back and whistle. There are already several interesting primaries on the Democratic ballot this March – Kim Ogg versus Morris Overstreet for DA, AL5 candidate Philippe Nassif challenging Lane Lewis for HCDP Chair, and the open seat in HD139 to succeed Mayor-elect Sylvester Turner, to name three – but I think it’s fair to say this one will command a lot of attention. My initial thoughts:

– It’s a little hard to avoid a flashback to Leticia Van de Putte, who left her Senate seat to run for Lite Guv while denying she was really interested in running for Mayor of San Antonio, then ran for Mayor after losing the Lite Guv race. One of Garcia’s stated reasons for stepping down as Sheriff, which as noted did upset some folks given that it changed partisan hands when he left, was that the job he really wanted was Mayor…and now he’s running for Congress. I get it, and I get that there are only so many chances to make a difference in life, but I guarantee you, some people will think about that. There can be a fine line between being opportunistic, and being an opportunist.

– This is one of those times when endorsements from other elected officials, in particular Latino elected officials, will be worth watching. Gene Green hasn’t survived this long in an office that was intended to be held by a Latino politician by sitting on his laurels. He’s got deep roots in the community, and a long list of folks involved in politics and public service, including more than a few elected officials, who once worked for him. His endorsement of State Rep. Armando Walle in 2008 was a difference maker in that primary. Against that, Garcia would be the first Latino Member of Congress ever elected from the Houston area. What wins out, loyalty or history? That’s the question.

– Regardless of Garcia’s words about Donald Trump, elections are about “vote for me and not that other guy”. We don’t know yet what issues Garcia may campaign on, but I do know of one clear difference between them. Green is one of the last Democratic holdouts on marriage equality, while Garcia is a longtime champion of LGBT rights, who won plaudits for his policies regarding LGBT inmates in the county jail. Green’s view may track the 29th District’s, but one way or another that’s a big difference between them. How does that play out in a primary?

There will undoubtedly be more to talk about in the coming weeks, but this is what I’ve got for now, that and the sense that I’m already behind in scheduling interviews for the primaries. The Trib and Trail Blazers have more on this and other filings of interest.

Mimi Swartz’s Mayoral campaign rant

Here it is.

Mayor Annise Parker

Mayor Annise Parker

What if they held a mayoral race and nobody came? That’s the question plaguing many people currently involved in Houston politics—even if no one else in town is asking it. This phenomenon isn’t entirely new: in 2009,* a measly 19 percent of Houston voters turned out for the general election to make a winner out of Annise Parker. That number could wind up looking downright spectacular, however, after the results of the 2015 mayoral race are tabulated on November 3. At this point—about a month out—no one can even use the traditional, if lame, “just-wait–til-Labor-Day” excuse; that holiday has come and gone, and if you ask the average person on the street who he is supporting, the answer is likely to be one big shrug followed by a puzzled squint, accompanied by “Who’s running again?”

One could say that the issues—at least the ones being discussed—aren’t all that compelling. Few people understand, or even want to understand, the pension crisis that is bleeding the city dry while keeping the bank accounts of retired firefighters and policemen safe and secure. Houstonians do know that traffic back-ups and potholes as dangerous as starving raptors now make it impossible to get from point A to point B (or C or D), but residents—especially the long-timers—also comfort themselves knowing that congestion equals growth equals prosperity. A future of potentially uneducated masses in a high-tech world? Isn’t that the school district’s cross to bear? Increased segregation between the haves and the have-nots in this oh-so-hospitable town? Come on! Once oil prices go back up, anyone will be able to buy a mansion in River Oaks.

I’ve covered this before, but what did the 2009 Mayoral election not have that the three preceding high-turnout Mayoral elections (2003, 2001, and 1997*) did? A high profile referendum that helped drive that turnout. In 2003, it was the Metro referendum; in 2001, it was on a charter amendment to ban domestic partner benefits for city employees; and in 1997 it was a charter amendment to ban affirmative action. Past performance does not guarantee future results, but I’d bet the over on 2009 turnout this year. If that doesn’t happen, then we’ll need to have a heart-to-heart talk about how disengaged our local voters are.

As or the rest, like most rants it’s more descriptive than prescriptive, so there’s no argument for me to evaluate. I don’t disagree with the description, but that doesn’t get us very far. Swartz correctly notes that our city voters are old, but gives no suggestion as to what if anything could be done to change that. I figure sooner or later a candidate will invest in that kind of work, and if it pays off then others will follow. Until then, what you see is what you get.

By the way, here’s another story about that 1997 affirmative action referendum, from just before the election. See if any of this sounds familiar to you.

There has never been any dispute about what Proposition A would do if it is approved by voters here on Tuesday: It would abolish affirmative action in Houston’s contracting and hiring.

Nonetheless, there has been a tumultuous fight over just how Proposition A should be worded, one that may well head for the courts even after all the votes are in. And at the core of this battle is a question that is reverberating in other cities and states where anti-affirmative-action measures are gathering steam: should opponents of affirmative action be able to define these measures by using the language of the civil rights movement?

That is exactly what happened in California last year with the passage of Proposition 209, the measure that dismantled state-sponsored affirmative action. Similarly, the conservative group promoting the measure in Houston drew up a proposition with words taken almost directly from the 1964 Civil Rights Act. It said voters should decide whether the city “shall not discriminate against or grant preferential treatment” to anyone “on the basis of race, sex, color, ethnicity or national origin.”

But by the time Mayor Bob Lanier, a staunch proponent of affirmative action, and the City Council were through, the wording on the proposition was totally revised.

So now, when voters in the nation’s fourth-largest city go to the polls on Tuesday, they will be asked whether the city charter should be amended “to end the use of affirmative action for women and minorities” in employment and contracting, “including ending the current program and any similar programs in the future.”

The measure’s proponents say the rewording by the Mayor and the Council is outrageous and heavy-handed, while those who favor the change say it is a more honest and straightforward way of describing what the proposition would do. Behind this fight over words are some striking polling statistics, which help to explain just why the fight has been so pitched and which offer a look at the voters’ complicated feelings about affirmative action.

Phrased as a nondiscrimination measure, Proposition A would likely pass with as much as 70 percent of the vote, according to joint polls conducted in recent weeks by the University of Houston and Rice University. But phrased as a measure to wipe out affirmative action, the results are starkly different: In separate polls conducted last month and earlier this week, 47.5 percent of voters described themselves as favoring that concept.

“Basically, what we found here is that the wording is incredibly important on this issue,” said Bob Stein, a political scientist and dean of the School of Social Sciences at Rice University. Like many pollsters here, he describes Tuesday’s vote as too close to call.

“The wording here defines the issue,” Professor Stein added, “and in defining the issue, you manipulate the symbols.”

In the poll this week of 831 registered voters, 47.5 percent said they would vote for Proposition A and 39.8 percent said they would vote against, with the rest undecided or of no stated opinion. The poll’s margin of error was plus or minus 3.6 percent.

Boy, the more things change, am I right? I wonder how many of the pro-Prop A people in 1997 are now anti-Prop 1 people this year. For the record, Prop A was defeated by a 55-45 margin, so consider that another example of how hard it is to get an accurate poll response in a city of Houston election. I’m trying to keep that in mind with polls about HERO, whatever they say.

(*) To be fair, the 1991 election, in which Bob Lanier defeated Sylvester Turner and ousted then-Mayor Kathy Whitmire, had turnout in excess of 300,000 as well, and there’s no report of a referendum on the results page. Maybe that year was different, or maybe there was something else going on that I don’t know about.

How much do you hate same sex marriage?

Not as much as this guy does.

RedEquality

Ammon J. Taylor of San Antonio is so vehemently opposed to same-sex marriage that he took the unusual step of forming a federal super PAC to fight it.

The 27-year-old salesman is taking a seldom-tried — some would say improbable — approach. He wants to muster a convention of states to amend the Constitution to enable states to quash the Supreme Court’s June ruling that legalized same-sex marriage.

On July 16, Taylor registered the Restore Marriage PAC with the Federal Election Commission, naming himself president and treasurer. Moving methodically, he opened a bank account, issued a news release, created an Internet presence, and began seeking volunteers and support among fellow conservatives of all creeds.

“Most Americans think that since the Supreme Court decision allowing same-sex marriage, the issue is settled. It is not,” Taylor said when he announced the PAC.

With Congress not acting against same-sex unions, a convention of states “is our only constitutional recourse to save marriage,” he said.

For Taylor, the effort is part of living his Mormon faith. As a boy, he watched his father lead Nebraska’s initiative to define marriage as being between a man and a woman, which passed overwhelmingly in 2000 but was nullified by the court decision.

[…]

Taylor concedes it’s unlikely that enough states could be persuaded to “pass an amendment that would protect and restore marriage nationwide. We do believe we can get 34 states to come together to hold a convention to propose an amendment that allows each state to define for itself.”

With most states under Republican control, he said, “now is the best time ever to return to the states the right to determine key social and economic events that Washington has allowed to run out of control — like balancing the budget, stopping abortion and protecting traditional marriage,” Taylor said.

“How do we put the pressure on Congress to call for an amendment now? The answer is we hold a mock convention,” he said. Taylor hopes to conduct the “People’s Convention” around a July 2016 meeting of lawmakers at the American Legislative Exchange Council in Indianapolis.

A key motivation for Taylor was a Mormon leader’s prophesy that those outside Washington, D.C., would someday save the Constitution.

I’m not going to waste any time on Amman Taylor’s hateful nonsense, which he of course denies is motivated by hate because how could legally classifying millions of people as second-class citizens be anything but loving? The fact that he hopes to put his grand plan in motion at an ALEC conference is…I can’t even. Seriously. What I will do is go off on a brief rant about the difference between prophecy and prophesy, which are not only two different words that have two different pronunciations, they’re even two different kinds of words. Prophecy is a noun. It is the work product of a prophet. Prophesy is a verb. It is the action taken by a prophet to produce a prophecy. I don’t know if I blame the reporter or the copy editor (if they still have them at newspapers these days) more for this annoying and annoyingly common error, but either way, please get this right. It makes me twitch like Herbert Lom in the Pink Panther movies when I see “prophesy” used as a noun. You don’t want to do that to me, do you? Thanks.

2015 Texas Lyceum poll

Issues first, election stuff to come. From the press release:

The 2015 Texas Lyceum Poll Finds: 

  • Immigration remains the most important issue facing the state and Texans support lawmakers’ increased spending on border security.
  • Texans’ views on  gay marriage are changing. Forty nine percent of Texans support gay marriage – up from 29 percent in 2009.
  • Experience with  race-based discriminationshifts greatly depending on the racial or ethnic background of the person polled.
  • Footballrules in Texas. Despite national poll numbers revealing 40 percent of Americans would discourage their children from playing youth football72 percent of Texans would encourage children to play football.
  • A growing number of Texans, 46 percent, support legalizing the use of marijuana (up by 13 percent since 2011) and among those who oppose legalization, 57 percent support decriminalization.
  • Texans are not overly concerned about climate change, but a majority (67 percent) would support new regulations on private companies.

 

2015 Texas Lyceum Poll Infographic

AUSTIN — An independent statewide poll conducted earlier this month (Sept. 8-21) by the Texas Lyceum, the state’s premier non-partisan, nonprofit statewide leadership group, suggests that Texans believe immigration is the state’s number one issue, continue to love their football, have moderated their opinion on the legalization of marijuana and gay marriage over the years, and support some regulation to reduce global warming.

“As the Texas Lyceum celebrates its 35th anniversary, we are proud to conduct this public service offering the media, policymakers, scholars and the general public an annual snapshot of Texans’ views on key issues,” said 2015 Texas Lyceum President Jane Cummins. “This year the Texas Lyceum held meetings focused on the Texas economy and the war on drugs, among other topics, and next year we will address the big business of football in Texas, showing our programs are on point with what Texans are talking about.”

Border Security / Immigration

Border security and/or immigration has remained one of the top three issues for Texans since the inception of the Lyceum Poll. This year the Lyceum Poll gauged Texans’ thoughts on two related policies – one state and the other federal. At the state level, a majority of Texans (62 percent) favor state lawmakers’ approval to spend $800 million on border security operations over the next two years.

Turning to federal policy, 65 percent of Texans approve of the federal government’s decision to halt deportations of undocumented immigrant youth who attend college or serve in the military while providing them with a work permit. Only 20 percent queried believe this policy did “a lot” to encourage illegal immigration.

Gay Marriage

Following the U.S. Supreme Court decision over the summer that legalized marriage for gay and lesbian couples in all 50 states, more Texans favor allowing same sex marriage than say they oppose it. Our survey shows 49 percent of Texans favor gay marriage, up from 33 percent when asked a similar question in 2011. However, 40 percent are opposed to allowing gay and lesbian couples the right to marry legally.

Racial Discrimination

In light of recent national and Texas race-related controversies, the Lyceum Poll asked respondents two related questions: First, was there ever “a specific instance in which you felt discriminated against by the police because of your racial or ethnic background?” Second, was there ever, “a specific instance in which you felt discriminated against by an employer or a potential employer because of your racial or ethnic background?” Reviewing the total sample with regard to police discrimination, only 17 percent of Texans believed they were discriminated against by police because of their racial or ethnic background. However, on closer inspection, these numbers shift significantly according to the race or ethnicity of the respondent. Four percent of whites, 24 percent of Hispanics and 45 percent of black respondents said they had felt discriminated against by the police. This pattern held with regard to Texans’ attitudes about employer discrimination as well. Only 11 percent of whites indicated they had been discriminated against by an employer, while 27 percent of Hispanics and 42 percent of black Texans felt they had experienced a form of workplace discrimination.

Football Reigns

Despite growing national concern that children who suffer repeated head injuries from tackle football can sustain long-term brain damage, Texans would not discourage their children from playing the contact sport. In fact, 72 percent of those polled said they would encourage children to play football while only 21 percent would discourage it. These numbers contrast with a national NBC/Wall Street Journal poll taken last year showing that 40 percent of Americans would steer their children away from playing football due to concerns over concussions.

Legalizing / Decriminalizing Marijuana

As more states either decriminalize or legalize marijuana – with Texas lawmakers passing limited medical marijuana use this past legislative session – a majority of Texans don’t support legalization outright. The survey shows 50 percent of Texans are opposed to legalization, while 46 percent of Texas adults said that they would support legalizing the use of marijuana. However, the numbers are breaking in favor of legalization as support has gone up by 13 points when compared with a question asked in the 2011 Lyceum Poll. Meanwhile, among those who oppose legalization, 57 percent said they would support decriminalization. Specifically, this group agrees on “reducing the maximum punishment for possessing small amounts of marijuana to a citation and a fine.”

Climate Change

Global warming is not a top concern for Texans. When asked if they personally worry about climate change, 50 percent say “only a little” or “not at all.” But when asked “would you support or oppose Congress passing new legislation that would regulate energy output from private companies in an attempt to reduce global warming,” 67 percent of Texans said they would support such regulation.

Daron Shaw, Ph.D., Professor at The University of Texas at Austin and a Texas Lyceum alumnus, oversaw the poll, which was conducted September 8-21, 2015, and queried 1,000 adult Texans. The poll has a margin of error of +/- 3.1 percentage points. Dr. Shaw and Texas Lyceum Research Director Joshua Blank, used the latest statistically-advisable polling techniques: live interviewers contacted respondents both by landline as well as cell phones (40 percent) and administered the survey in the respondent’s language of choice (English or Spanish).

The executive summary is here. A couple of points of interest:

On immigration: “The second policy that we queried asked respondents to evaluate the policy by which the Department of Justice stops the deportation of any undocumented immigrant youth who attends college or serves in the military and provides them with a legal work permit that is renewable. Despite the perception that Texans have particularly harsh attitudes on illegal immigration, 65% of Texas adults said that they supported this policy with only 28% expressing opposition. Majorities of Democrats (81%), Republicans (54%), and independents (62%) expressed support, as did majorities of Anglos (58%), blacks (63%), and Hispanics (75%).

On same sex marriage: “Majorities of Democrats (69%), Hispanics (53%), and Texans 18 to 29 years old (65%) and 30 to 44 years old (52%) said that they favored allowing gay marriage; pluralities of independents (46%) and Anglos (47%) also said that they favored allowing gay marriage. A majority of Republicans (58%) and a plurality of black respondents (45%) said that they oppose allowing gay marriage.” I would add that only the 65-and-over crowd was truly opposed (34% in favor to 53% against). The 45-64 group was barely in opposition, 43% yes and 44% no.

On marijuana: “A majority of Democrats support legalization (54% support; 42% oppose) while a majority of Republicans oppose legalization (37% support; 61% oppose). Fifty percent of whites support legalization while 51% of blacks and 56% of Hispanics stand in opposition. Eighteen to 29 year olds are the only age group in which a majority supports legalization (66%). Interestingly, when it comes to Democrats and Republicans in opposition to legalization, both groups favor decriminalization (60% of Democrats and 59% of Republicans). Majorities of whites (59%), blacks (52%), and Hispanics (56%) initially opposed to legalization are supportive of decriminalization, as are all age groups.”

On climate change: “Not surprisingly, given the partisan dimensions of this issue, 84% of Democrats said that they would support [new legislation that would regulate energy output from private companies in an attempt to reduce global warming] (60% said that they would strongly support them), while 45% of Republicans said that they would support such regulations, with 48% saying that they would be opposed. These results still display a rather surprising willingness among Texas Republicans to consider regulation to combat global climate change.”

On the Affordable Care Act: “Like in past polling, Democrats held a much more positive attitude toward the ACA than did Republicans. While 63% of the former hold a positive view of the ACA (up from 58% in 2014), 76% of the latter hold a negative opinion (down slightly from 80%). Whites continue to hold negative opinions towards the healthcare law with only 26% expressing a favorable opinion, while a majority of blacks hold a positive view (65%). Hispanics were evenly divided in their opinions of the ACA, with 42% holding a favorable opinion and 39% holding an unfavorable opinion.”

Basically, outside of that last issue, the survey respondents were a lot less in agreement with the Republicans that dominate state government than they were with Democrats. Needless to say, that discrepancy is a function of who actually votes, and increasingly when they vote; Republican primary voters are far more extreme than Republican non-primary voters. The question is when election results will more closely reflect this. Perhaps the higher turnout of a contested Presidential primary will draw some more moderate Republicans to the polls in March; that won’t have any statewide effect but it might make the Lege a pinch saner. Beyond that, all I know is that it won’t happen in its own.

The Lyceum will be releasing election poll data today. I’ll link to it later, and will have a separate post tomorrow.

Counting the number of same sex marriages in Texas

Fewer than I’d have guessed, but still a decent amount percentage-wise.

Statewide, an estimated 2,500 same-sex couples have received marriage licenses in Texas since the [Obergfell] ruling.

There is no exact accounting of how many same-sex marriage licenses have been issued in Texas or Tarrant County because gender is no longer listed on licenses.

But the Star-Telegram’s review of marriage licenses issued in Tarrant County the past two months shows that almost 9 percent of the licenses appear to have been issued to same-sex couples. Statewide, 5.7 percent of marriage licenses appear to have been given to same-sex couples.

“There are many same-sex couples who simply waited until it was legal to seek licenses,” said Jim Riddlesperger, a political science professor at TCU. “As a result, there have been a number of folks who might have gotten married years ago had it been possible to do so who are taking advantage of their opportunity to gain legal recognition for their committed relationship.

“My guess is that the overall percentage will shrink over time from this initial data once the ‘pent-up demand’ has been satisfied.”

[…]

Officials stress that state estimates of same-sex marriage licenses are just that: estimates.

“Since the application no longer has gender identifiers, this ballpark number is based on what we can assume from the applicants’ names,” said Carrie Williams, director of media relations for the Texas Department of State Health Services, which maintains vital records for the state, including marriage applications.

Overall, the state has received 43,522 marriage license applications since June 26, including the estimated 2,500 for same-sex couples, she said.

To get an idea of how many marriage licenses Tarrant County has granted to same-sex couples, the Star-Telegram reviewed a list of 3,427 applications from June 26 to Sept. 8.

The county does not keep a “breakdown of same-sex marriage license applications versus non-same-sex applications,” said Jeff Nicholson, chief deputy for Tarrant County Clerk Mary Louise Garcia. “Since June 26, the forms and our software have been modified so there is no way to discern this. It simply refers to applicants.”

The review shows that at least 296 licenses — or 8.6 percent — appear to have been issued to same-sex couples.

On the one hand, I thought the “pent-up demand” might have been higher. On the other hand, a lot of couples in Texas that really wanted to be married went and got married in other states rather than wait. Either way, I do think the number will decline some as a share of all marriages, then level off. We’ll get a much better handle on the real numbers when the 2020 Census is done. One hopes that by then the whole subject will be considered little more than a statistical curiosity. The Current has more.

Getting back into the marriage game

It was too good to stay away.

Two Harris County justices of the peace have resumed officiating weddings this week after a brief hiatus in the wake of the U.S. Supreme Court’s landmark ruling on marriage equality.

Judges Russ Ridgway and Jeff Williams stopped marrying couples after the high court on June 26 legalized same-sex marriage nationwide, striking down the remaining bans in Texas and a dozen other states.

These two judges, who preside in the western outposts of the county, were among three of 16 sitting Harris County justices of the peace who opted to take down their shingles for weddings last summer. The third judge, Laryssa Korduba, a Republican who serves out of Humble, has remained off duty with respect to weddings, her staff said this week.

None of the three judges responded to multiple requests for comment on their rationale.

However, Judge Mike Parrott, a fellow justice of the peace, said Korduba told the other JPs she did not wish to marry same-sex couples, but Parrott never heard an explanation from Ridgway or Williams. Given heavy foot traffic in their offices and the number of walk-in requests they would have received, Parrott found it notable that his colleagues would pass on the income they would have earned.

“It really surprised me about Russ (Ridgway) and (Jeff) Williams,” Parrott said. “That’s a big population out there. Maybe they don’t need the money.”

Parrott said he understood the likely reason they changed their minds after a short moratorium. “I got a feeling it’s extra income.”

JPs in busy courts might do as many as 10 weddings a day and up to 20 or so on Valentine’s Day, Parrott said.

See here for the background. JPs are paid between $50 and $400 to perform a wedding, so that would be a significant piece of income to give up for one’s principles. Which, to be clear, is 100% their right and which I support. JPs are allowed to perform weddings but don’t have to, and as long as they’re consistent and not picking and choosing, it’s all good. Happy marrying, y’all.

Paxton loses again on same sex marriage

Good.

Best mugshot ever

Turning aside objections from Texas Attorney General Ken Paxton, a Travis County judge approved an out-of-court settlement Tuesday that recognizes the eight-year relationship of two Austin women as a common-law marriage.

The settlement accepted by Travis County Probate Judge Guy Herman ended an estate fight between Sonemaly Phrasavath and family members of the woman soon to be legally acknowledged as her wife — Stella Powell, who died of cancer in June 2014.

Reached last week with the help of a mediator, the agreement divided Powell’s estate roughly in half between Phrasavath and members of Powell’s family. It also acknowledged Phrasavath as Powell’s spouse from a common-law or informal marriage — a legal distinction that doesn’t require a marriage license.

An Oct. 5 hearing has been set to formally declare Phrasavath as Powell’s heir due to marriage — the first common-law marriage finding for a same-sex couple in Texas history, lawyers said.

Lawyers for Paxton opposed the designation during a hearing before Herman on Tuesday, arguing that the settlement ended the legal dispute over Powell’s estate, making any decision about Phrasavath’s marital status moot and beyond Herman’s jurisdiction.

But Brian Thompson, Phrasavath’s lawyer, told Herman that his client would settle for nothing less than the recognition of her relationship as a valid marriage, particularly after the U.S. Supreme Court overturned state laws banning same-sex marriage in June.

“How many more courts have to tell Ken Paxton that these statutes (banning same-sex marriage) are unconstitutional?” Thompson said. “Apparently one more.”

See here for the background. Basically, the judge said that this qualified as a common-law marriage, and the state has no business getting involved, which let’s face it they would never do if it didn’t involve a same-sex couple. The AG’s office says it may appeal this ruling on the grounds that it may cause “confusion” and cause a lot of old probate cases to be re-litigated, but that seems unlikely.

Family law expert and University of Texas at Austin professor John “Jack” Sampson disagreed the settlement could reopen old probate cases: “If it’s a final, unappealed decision in any context … the litigants are bound and the litigants can’t reopen it.”

Both Sampson and Neel Lane, the attorney who represented two same-sex couples who challenged Texas’ gay marriage ban, said the settlement does not create any legal precedent for future probate cases of a similar nature.

“I think it will bring attention to (common-law marriage) but it will not be a legal precedent,” said Lane. “This was an unusual case. There’s not likely to be a great many of them.”

Attorneys like Lane who have clients in long-term same-sex relationships said they hope the case raises awareness among gay couples about their marriage options. After the Supreme Court’s ruling, same-sex couples can get married or, if their relationship meets certain requirements, they can register their common-law marriages with a county clerk.

That would allow couples to “back date” their marriages, perhaps avoiding future inheritance questions about assets accrued during their first years together, said Houston lawyer Ellen Yarrell.

I’m sure there will be couples that will take action based on this case, but I doubt it will cause the legal system any headaches. What it will do is make life just a little easier for those couples and their families. Surely even Ken Paxton can agree that’s a good thing.

Paxton still fighting same sex marriage

Some things never change.

Best mugshot ever

Despite his recent pledge to comply with the U.S. Supreme Court’s same-sex marriage ruling, Attorney General Ken Paxton is already seeking to prevent the decision from being applied in an Austin estate case.

Paxton’s office filed a motion August 25 in Travis County’s probate court aimed at blocking an Austin woman from inheriting a portion of her deceased partner’s estate, arguing that because same-sex marriage was illegal in Texas throughout the women’s relationship, Sonemaly Phrasavath has no legal right to her partner’s funds.

The motion was filed a day after the AG’s office, in an advisory, assured a federal judge in San Antonio that the state was in full compliance with the high court’s June 26 decision in Obergefell v. Hodges.

Based on the advisory, U.S. District Judge Orlando L. Garcia canceled a contempt hearing for Paxton over Texas’ failure to issue an amended death certificate to a gay widower for six weeks after the ruling.

Brian Thompson, Phrasavath’s attorney, told the Observer that the AG’s office’s continued filings in the case show that it is “not recognizing the full force of the Obergefell opinion.”

See here, here, and here for the background, and here for Phrasavath’s motion for summary judgment. She was a plaintiff in one of the other legal challenges to Texas’ anti-same sex marriage amendment; her case was still pending at the time of the Obergfell decision, and as in that case this has to do with a surviving spouse. It surely wasn’t their fault that they couldn’t get married at the time they did. There will be a hearing on Monday, and I hope this is swiftly decided in her favor. I also hope Judge Garcia is paying attention.

State gets the bill for fighting same sex marriage

Please pay promptly.

RedEquality

The attorneys for same-sex couples who successfully challenged Texas’ gay marriage ban in federal court are seeking nearly three-quarters of a million dollars in fees and costs from the state.

In a 27-page motion filed Friday, attorneys from Akin Gump Strauss Hauer & Feld in San Antonio asked U.S. District Judge Orlando L. Garcia to award them $720,794 in fees and $20,203 in costs.

Akin Gump represented two same-sex couples in De Leon v. Perry, which was filed in October 2013 and resolved pursuant to the U.S. Supreme Court’s June 26 ruling in favor of same-sex marriage. Under federal law, prevailing parties in civil rights cases are typically eligible for fees and costs.

“Our task on behalf of our clients was to attack and uproot unjust laws that were tightly embraced by the entire elected statewide leadership of Texas, a state with virtually unlimited resources to defend those unjust laws,” Akin Gump’s Neel Lane, the lead attorney in the case, wrote in a declaration supporting the motion. “Had the State of Texas not deprived our clients of their constitutional rights, they in turn would not have had to engage attorneys, and this motion for attorneys’ fees and costs would have been unnecessary. If the State is not held accountable for the legal costs it caused to be incurred, then it will be more likely to engage in similar objectionable conduct in the future.”

You may think that sounds like a lot of money, but as the Chron story points out, the plaintiffs’ attorneys bent over backwards to minimize it.

The filing breaks down the requested costs, including more than 1,700 hours in work by the couples’ attorneys. The costs they seek to recoup are appropriate, the filing said, in part because attorneys repeatedly chose not to bill – or billed at a reduced rate – during the case.

“Plaintiffs exercised substantial billing judgment in their requested fees,” the filing states. “For instance, Plaintiffs declined to include the work of more than 15 attorneys and paralegals who provided short-term assistance during the case.”

Attorneys also cut their hourly rates – from $980 an hour to $500 an hour for attorney Barry Chasnoff, for example – and chose not to bill more than 700 hours of work they could have included in their estimated costs, the filing stated.

Judge Garcia gets to decide whether to award fees – as noted, this is usually what happens when the plaintiffs prevail in a civil rights case – and if so how much. It’s in his discretion to reduce the amount if he sees fit. The state will of course oppose this motion, and as we know from the ongoing redistricting saga, they will fight it to the ends of the earth and back again. So don’t expect this to be wrapped up neatly or quickly.

Paxton’s contempt saga officially ends

I’m sure he’s so relieved.

Best mugshot ever

A federal judge has canceled next week’s contempt-of-court hearing for Attorney General Ken Paxton, saying it is not needed because Texas government agencies have begun acknowledging same-sex marriages.

U.S. District Judge Orlando Garcia had ordered Paxton and a state health official to appear in his San Antonio courtroom last month to explain why the state was not listing same-sex marriages on death certificates. Garcia postponed that hearing until Sept. 10 after Paxton said state policies were being changed to allow same-sex marriages to be listed on all state documents, including birth and adoption records.

Paxton last week asked Garcia to cancel the postponed hearing, saying Texas was complying with his order to treat same-sex marriages no differently than opposite-sex unions.

Garcia agreed, saying in an order Tuesday that state officials were properly recognizing same-sex marriages as required by the U.S. Supreme Court’s June opinion that struck down all state bans on gay marriage.

Garcia, however, noted that his office had received letters complaining that gay couples were still being denied marriage licenses in a few counties he did not identify.

See here, here, and here for the background. It would be nice to have more details about those letters Judge Garcia received, but at this point it does seem like the system is finally working as it’s supposed to. If all else fails, Judge Garcia can always reschedule that hearing. He may now be in compliance, but it’s not clear to me that Paxton has learned anything from the experience.

Though that decision marks something of a win for Paxton, the attorney general’s first assistant bristled at the notion that it was even necessary.

“For better or worse, Tx was never ‘not complying,’” First Assistant Attorney General Chip Roy wrote on Twitter. “There was never basis for contempt hearing for AG or otherwise.”

All the legal wrangling came after Conroe resident John Allen Stone-Hoskins sued the state to amend his husband’s death certificate and add his name as a spouse. Pressure also mounted for the Department of State Health Services to address other such forms.

The death certificate of Stone-Hoskins’ husband, James, has since been amended. And Neel Lane, Stone-Hoskins’ attorney, said in August that fixing those documents “should be the final chapter” in the state recognizing the same-sex marriage ruling.

Garcia’s order did note complaints that some county clerks continue to deny marriage licenses to same-sex couples. While pointing out those issues weren’t before the court, Garcia highlighted the attorney general’s pledge to not represent those clerks in litigation.

“The court expects that Ken Paxton … will utilize [his] unique position to ensure proper implementation of the law across the State of Texas,” Garcia wrote.

He’d better. And please spare us the whining, Chip. Go talk to people like John Stone-Hoskins about how they were being treated and see if you can stand by your statement. Someone needed to get Paxton’s undivided attention, and Judge Garcia was the one to do it. I’m very glad he did.

Does your JP still do marriages?

Some do and some don’t.

RedEquality

Last Wednesday, Judge Dale Gorczynski, a justice of the peace in Harris County, heard 19 eviction cases, sent 147 traffic and misdemeanor cases to trial and presided over five weddings: Three for same-sex couples and two for heterosexual couples.

It was the first time gay couples outnumbered straight ones in his north Houston office. The judge estimated that during the two peak wedding season months since the U.S. Supreme Court legalized same-sex marriage about 10 to 20 percent of the couples he has married are gay or lesbian.

But that trend is not playing out with at least three of the county’s 16 justices of the peace who previously performed weddings but no longer do. Judges Laryssa Korduba, Russ Ridgway and Jeff Williams, all Republicans who officiated weddings prior to the decision, are taking down their shingles, although they have done so gradually. These judges, who operate in Humble, near Bellaire and Addicks, still adjudicate criminal, civil and traffic proceedings, but despite phone prompts and online links at their offices that indicate otherwise, marrying couples is no longer among services they offer, staff members confirmed last week.

Korduba performed her last ceremony Aug. 7, according to the county clerk’s data through Aug. 20. That data shows that Ridgway last officiated Aug. 11; and Williams held his last wedding Aug. 14. The county clerk, Stan Stanart, said Tuesday these JPs performed weddings after the Supreme Court ruling, but in a limited capacity. Stanart said Ridgway told him, “I had these commitments beforehand.” The others made similar comments: “That’s what Laryssa [Korduba] told me, too, and Jeff [Williams]. They had commitments. They booked them up beforehand. But there are no new bookings. That’s what I’ve been told at this time,” Stanart said.

[…]

To be clear, these JPs will not be breaking the law or shirking their duties by halting weddings, legal experts say. In fact, they are opting to forego thousands of dollars of personal income, based on the rates they charged in recent months. Justices of the peace may keep this income. They have complete discretion to set their rates. Costs range from $50 to $400 per ceremony.

Although the Ohio Supreme Court issued an opinion this month stating judges may not refuse to perform marriages altogether based on personal, moral or religious objections to same sex marriage, officiating weddings in Texas is a choice.

In other words, all JPs in Texas may marry same-sex couples, but the law does not oblige them to marry anyone, according to Harris County Attorney Vince Ryan.

As far as turning away same-sex couples, Ryan said, “As long as they are not doing any weddings they can make that choice. If they do any marriages, they have to do all the marriages.”

Rebecca L. Robertson, legal and policy director for the American Civil Liberties Union of Texas, agreed: If you choose to opt out of marrying all couples, that is perfectly legal. If you marry anyone, you may not discriminate, she said.

“If they feel this strongly, at least they’re being fair about it,” said Lane Lewis, chairman of the Harris County Democratic Party, adding he thought, “They are on the wrong side of history.”

Daniel Williams, spokesman for the Lesbian Gay Bisexual Transgender rights group Texas Wins, said he applauded judges who abstained from marrying anyone if their personal beliefs guided them to pick and chose who to marry.

“To the JP who says, ‘In order to follow the law, I need to set aside the optional power of my office to perform weddings,’ Kudos.”

I agree. I’m glad that at least around here none of the JPs have tried to be jerks in the way that some county clerks were, to their detriment. I think they’re missing out – my dad was a judge for 14 years in New York, and he always says that performing marriages was the best part of the job – but it’s their choice. I sincerely hope some of them come to the realization that they’re no better off this way and get themselves back in the game. Everyone would benefit if they do.

Divorce granted to same sex couple in Tarrant County

At some point, stories like this will cease to be news.

Divorce

It took two Tarrant County women nearly two years to legally end their failed marriage because of the tangle of state and federal law.

But on Thursday, Brooke Powell and Cori Jo Long were finally divorced after a five-minute hearing before state District Judge William Harris.

Court officials said they believe it is the first same-sex divorce in Tarrant County and one of the few in Texas.

“It’s been a roller coaster,” Long said after her courtroom appearance. “Honestly, I didn’t think it would happen.”

The U.S. Supreme Court’s ruling June 26 that the Constitution guarantees a right to same-sex marriage is what prodded Tarrant County judges to grant the divorce.

But don’t expect the first divorce to open the floodgates, legal experts say. Although the Supreme Court’s decision led to a rush of same-sex weddings, that won’t happen with divorces. They are not as simple as reprinting the marriage license form.

Powell and Long married in New Hampshire in 2010. Four years later, one woman filed for divorce while the other asked Texas to act as though the marriage never took place.

But Harris closed off both options, and the women appealed their case to the 2nd Court of Appeals in Fort Worth.

“It was a feeling, initially, of being invisible,” Powell said. “There was no resolution. But I always had faith in the legal system that this day would come.”

Citing the Supreme Court ruling, the appeals court sent the case back to Harris. This time, he granted a divorce.

There was also a Texas Supreme Court ruling, which preceded the SCOTUS ruling, in a case about a same-sex couple in Travis County. As such, this case was pretty clear cut. However, as the story notes, there was no property to divide, and there were no children in the marriage so no custody issues to settle. Will the courts be able to apply existing law in an equitable manner for future same-sex divorce cases, or will it become clear that the Legislature will need to address this? I don’t know about you, but I don’t have a whole lot of faith in the latter, so we’ll have to see how it goes when such a case does appear. The simple dissolution of a marriage, at least, is something that can be done.

Paxton asks to be excused from contempt hearing

He promises he’s been a good boy, so can he please come out of time out now?

Best mugshot ever

Attorney General Ken Paxton’s office says he shouldn’t face a contempt hearing for failing to comply with the U.S. Supreme Court’s same-sex marriage ruling, and no longer needs judicial supervision to ensure he’s doing so.

In an advisory submitted on Monday’s deadline, the AG’s office assured U.S. District Judge Orlando Garcia that state officials have implemented new policies for issuing birth and death certificates to same-sex couples, and are processing all pending applications.

[…]

In Monday’s filing, assistant solicitor general Michael Murphy argued the hearing is no longer necessary, and objected to “the unprecedented threat of contempt” in the first place. Quoting Supreme Court Justice Anthony Kennedy, Murphy suggested officials simply needed time to adapt after the high court “unsettled … a ‘millennia’-old definition of marriage.”

“Because the state is in full compliance with Obergefell and this court’s injunction and has granted the relief the intervenor sought, the State Defendants believe there is no need for the Court’s scheduled Sept. 10, 2015 contempt hearing or any continued Court supervision of the Department,” Murphy wrote.

Representatives from the AG’s office couldn’t immediately be reached for further comment.

Ken Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, said Tuesday he feels the threat of contempt was “a proportionate response to the unprecedented level of arrogance, impudence and non-compliance” with the marriage ruling on the part of state officials.

Upton added that while officials were adapting, the gay widower who sought an accurate death certificate, John Stone-Hoskins, was dying himself, and hundreds of same-sex couples were forced to go without accurate birth certificates.

“What they needed was the threat of going to jail and a good civics lesson in how our system works,” Upton said.

See here and here for the background. I don’t think there’s anything I can add to what Ken Upton said. I agree with him 100% – if Paxton hadn’t dragged his feet and just generally done everything he could to deny the reality of Obergfell, then maybe you could argue that a contempt hearing was a bit much. In this case, it was completely fitting and deserved, and it had the desired effect. Next time do your job without having to be coerced and you won’t have these problems.

Paxton will not be able to avoid a different court hearing, however.

Ken Paxton will have to appear in court this week, after the judge handling his securities fraud case denied the attorney general’s request to skip the hearing and send his lawyer instead.

Presiding Judge George Gallagher of Tarrant County on Monday denied Paxton’s request to forgo his Thursday arraignment. According to court filings, Paxton will plead not guilty that day to two first-degree felony charges and one third-degree felony charge of violating state securities laws.

“This is the judge’s decision. Attorney General Paxton has no problem with it and neither do I,” Paxton’s attorney Joe Kendall told the Chronicle on Monday.

OK then. Let’s get this show on the road.

The cost of defying the law on same sex marriage

Nearly $44K in attorneys’ fees, and it could have been worse.

It has been a month since Joe Stapleton and Jim Cato finally got the marriage license Hood County Clerk Katie Lang denied them because of her religious beliefs. It only took a federal lawsuit to get it.

Today that suit was settled, and according to the attorneys representing Stapleton and Cato, Lang’s refusal to issue the license ended up costing Hood County $43,872.10 in attorney’s fees. They will now move to dismiss the suit.

“It is a shame that Hood County Clerk Katie Lang refused to follow the rule of law, causing our clients to go through the difficulties of hiring lawyers and filing a federal lawsuit to obtain the marriage license to which they are constitutionally entitled,” says attorney Pat O’Connell, one of Stapleton and Cato’s attorneys. “And it is sad that the taxpayers of Hood County have to pay the price for their elected official’s misconduct.”

According to Austin attorney Jan Soifer, who also represented the couple, the Hood County Commissioners agreed to settle the suit “to save [Lang] from dealing with the additional expense and significant financial exposure her actions caused the taxpayers of her county.”

See here, here, and here for the background. The lawsuit was filed July 7, so this was a quick resolution. I imagine the Hood county Commissioners Court finally got some better legal advice than what Ken Paxton was dishing out post-Obergfell, and saw the writing on the wall. Lang’s pointless yet defiant anti-same-sex-marriage manifesto is still up on her County Clerk webpage, so I think it’s fair to say the commissioners saved her from herself as well. If there are still any other holdout counties at this point, let this be a lesson for them as well. See the reactions on Facebook from Glen Maxey and attorney Jan Soifer for more.

State issues new guidelines for birth and death certificates

That was quick.

The state has issued new guidelines for filing and changing vital records to recognize same-sex marriage status, as ordered by a federal judge in San Antonio

In a court advisory filed late Wednesday, the Texas Attorney General’s Office and the Texas Department of State Health Services said they believe the new guidelines comply with the June 26 Supreme Court ruling that found gay marriage legal in all 50 states and a July 7 order by U.S. District Judge Orlando Garcia that prohibits state agencies from enforcing Texas laws that bar same-sex marriage.

Officials also agreed to issue new birth certificates for the two sons of Leigh and Robin Jorgesen of Austin, who helped convince Garcia, of San Antonio, to order the state to act on vital records involving same-sex married couples.

[…]

The state’s advisory also tells the judge that “the processing of software modifications by the third-party vendor that hosts the platform for vital records will take additional time, which will impact the issuance of birth certificates.”

“Until that change is made, those requesting a birth certificate listing parents of the same sex may choose either to (1) obtain the standard birth certificate listing ‘mother’ and ‘father’ as well as an amendment to the birth certificate once the software modification is complete; or (2) obtain an original birth certificate allowing for the parents to be identified as ‘mother,’’father’ or ‘parent’ once the software modification is complete.”

See here for the background. Nothing like a little contempt of court order to focus the mind and make clear what one’s priorities are. It’s almost as if the state had the ability to have gotten this done in a timely fashion without needing to be threatened. I’m sure that couldn’t possibly be the case, though. Trail Blazers has more.

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.

There’s more to complying with SCOTUS than issuing marriage licenses

Looks like Ken Paxton may get to learn that the hard way.

A federal judge ruled Wednesday that Texas must recognize the same-sex marriage of a Conroe resident by naming him as the surviving spouse on his late husband’s death certificate.

And U.S. District Judge Orlando Garcia also ordered Texas Attorney General Ken Paxton and Kirk Cole, interim commissioner of the Texas Department of State Health Services, to appear in court Aug. 12 to determine whether they should be held in contempt for refusing to change the death certificate. This is the latest legal challenge for Paxton, who was recently indicted on three felony securities fraud charges.

The judge’s emergency order comes after a lawyer for John Stone-Hoskins, the surviving spouse, sued the state in the wake of the U.S. Supreme Court’s ruling legalizing same-sex marriage, arguing Texas should revise the death certificate. The lawsuit also asked the court to name Texas officials including Paxton and Cole in contempt.

John Stone-Hoskins and James Stone-Hoskins married in New Mexico last year on the 10th anniversary of their first date. James Stone-Hoskins, 32, died in January. But John Stone-Hoskins was not listed on his husband’s death certificate, because at the time, Texas’ ban on same-sex marriages was still in place. Instead, James Stone-Hoskins was listed as single.

The order by Garcia of the District Court for the Western District of Texas compels the state health department to amend the death certificate. This case is particularly urgent, said John Stone-Hoskins’ lawyer, Neel Lane, a partner at Akin Gump Strauss Hauer & Feld LLP, because his 37-year-old client has been diagnosed with terminal cancer.

This Observer story from Tuesday gives some background. This story from Wednesday fills in some details.

“This is an effort to get political gain by persecuting gays and lesbians in the state of Texas,” Lane told the Observer shortly after filing the motion. “There’s just no other way to read what they’re doing.”

Stone-Hoskins said he was diagnosed with cancer six weeks after his husband’s death, and doctors estimate he has 45 to 60 days to live. He began requesting an updated death certificate immediately after the high court’s ruling, submitting more than 20 pages of documentation.

State officials initially told him they were still reviewing the request, but this week they said they wouldn’t issue an updated death certificate unless a court ordered them to do so, Lane and Stone-Hoskins said.

“After the Supreme Court decision came down, I should have inherited his estate,” Stone-Hoskins said. “Instead, not only is James’ estate — because he left no will before he died — at issue, but should I pass, I can’t even plan my own estate at this time.”

Paxton’s office didn’t immediately respond to a request for comment.

Lane said the state will be on the hook for Stone-Hoskins attorneys’ fees, but he’s unsure whether officials will also be liable for damages.

“The court can consider at its discretion any factors in awarding an award of contempt, but really what we want to do, at least from my perspective, is to pave the way for others so they don’t have to go to court,” Lane said.

Yeah, that whole “you don’t have to obey SCOTUS if your conscience says so but you could pay for it if so” opinion sure is hitting home about now, I’d say. We’ll see if the DSHS complies, and what happens with Paxton and Cole next week. I wonder if it would be wise for Paxton to pack a toothbrush with him when he goes to court. At least he’s already got a mug shot they can use if he needs to be booked. The Statesman has more.