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Senate passes Respect For Marriage Act

Nice. And remember who opposed it, kids.

Republican U.S. Sens. John Cornyn and Ted Cruz tried to block a Senate vote to explicitly enshrine equal marriage rights for gay, lesbian and bisexual Americans into federal law Wednesday, after 12 GOP lawmakers joined Democrats to clear the way for the bill’s passage.

The Respect for Marriage Act would repeal the 1996 Defense of Marriage Act, which barred the federal government from recognizing same-sex marriage until the U.S. Supreme Court ruled that law unconstitutional in 2013. The high court went further in 2015 and ruled in Obergefell v. Hodges that states can’t ban same-sex marriages, declaring that gay, lesbian and bisexual Americans have a constitutional right to marry.

The core provisions of the Respect for Marriage Act would be relevant only if the Supreme Court reverses that decision in the way it revoked a constitutional right to abortion this summer.

The bill would not force states that currently have unenforceable bans on same-sex marriage, like Texas, to offer marriage certificates to gay, lesbian and bisexual couples if Obergefell is overturned. But it would mandate that the state recognize a same-sex marriage that occurred in a state where it is legal. The vote on Wednesday in the Senate clears the way for it to pass the chamber easily. It will then return to the House, where members will consider the amendments made in the Senate. The House passed the original version of the bill in July.

There was a push to get this to a vote before the election, but the decision was made to defer it to the lame duck session. Given that it has now passed the Senate, I can’t argue the logic – sometimes, the result is all that matters. The RFMA has some progressive critics, but the argument for its passage is strong. I have no doubt it will sail through the House. It’s a very good thing, but don’t rest on your laurels because there’s lots more to be done before the end of the year. Mother Jones, TPM, and The 19th have more.

Anti-gay Waco JP’s lawsuit still tossed

Good.

An Austin intermediate appellate court has upheld a Travis County judge’s decision to throw out McLennan County Justice of the Peace Dianne Hensley’s lawsuit against the state panel that sanctioned her in 2019 for refusing to perform same-sex weddings.

In an opinion issued Thursday, the 3rd Court of Appeals affirmed 459th State District Judge Jan Soifer’s June 2021 decision to dismiss Hensley’s lawsuit against the State Commission on Judicial Conduct.

The appellate court judges agreed with Soifer that the commission has statutory and sovereign immunity from the claims, that Hensley failed to exhaust other legal remedies before filing her lawsuit and that she failed to establish her claims that commission members were without legal authority to issue the public reprimand against Hensley.

Hensley has said she has always expected the case will ultimately be reviewed by the Supreme Court of Texas. She referred questions about the Thursday ruling to her attorneys at the First Liberty Institute, a high-profile religious liberty legal group based in Plano.

[…]

Hensley, a Republican who is unopposed in Tuesday’s election in her bid for a third term, has officiated at weddings between men and women but refused to perform weddings for same-sex couples, saying it goes against her “Bible-believing Christian conscience.”

She said Thursday she has stopped performing any weddings while her lawsuit is pending. Her lawsuit alleges the commission violated her rights under the Texas Religious Freedom Restoration Act.

The commission’s public warning against Hensley said she violated the Texas Code of Judicial Conduct by “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.” It also said she has refused to perform same-sex weddings since August 2016, despite the 2015 U.S. Supreme Court decision that established constitutional rights to same-sex marriage.

Hensley’s lawsuit originally was filed in McLennan County. However, it was transferred to Travis County after a contested hearing.

Her petition asserts the commission violated her rights by punishing her for “recusing herself from officiating at same-sex weddings, in accordance with the commands of her Christian faith.” She also claimed “the commission’s investigation and punishment” of her placed a substantial burden on her free exercise of religion.

See here, here, and here for the background. The court information on the case is here, and there was both a majority opinion and a concurring opinion, in which one Justice agreed with the judgment but not the reasoning behind it. I didn’t slog my way through the majority opinion, but all it’s doing is upholding the lower court, so there’s nothing new here. I stand by what I wrote about her lawsuit when she filed it in 2019. I only regret that she hasn’t seen fit to take my advice. I’m sure this will get to SCOTx and from there who knows what will happen, but for now justice has been served. Thanks to my friend Carmen for giving me a heads up about this one – I had briefly seen a headline about the opinion, which came out last week, but hadn’t gotten back to it. The DMN has more.

It’s really tough on LGBTQ students right now

Not a surprise, unfortunately.

Schools remain a hostile place for LGBTQ students, according to a new report from the Gay, Lesbian & Straight Education Network, which found a decline in access to resources, books and supportive clubs for those students.

Nearly 70% of LGBTQ students felt unsafe at school because of their sexual orientation, gender identity or gender expression, according to the biennial report released last week. More than 78% said they avoided school functions or extracurricular activities because they felt unsafe or uncomfortable.

The findings come from the 2021 National School Climate Survey, which the organization has conducted every other year since 1999, offering a look into the unique experiences of LGBTQ students at schools across the nation and pointing to possible improvements.

“This year’s report shows we must make additional progress before LGBTQ+ youth are at minimum safe in schools where they can thrive and reach their full potential,” said Aaron Ridings, deputy executive director for public policy and research. “The attacks on LGBTQ+ youth from anti-LGBTQ+ extremists continue to create a chilling effect that threatens the wellbeing of gay and transgender youth across the country. We need leaders in states across the country who will uphold basic civil and education rights and let educators teach and students learn.”

Conditions have improved for LGBTQ students over the past two decades, according to the organization, though improvement has recently stagnated and researchers found few positive changes this year.

The organization that authored the report said it recommended that schools increase student access to appropriate and accurate LGBTQ resources, support student clubs, provide professional development to school staff, ensure that policies do not discriminate against LGBTQ students and create policies that ban harassment or bullying based on sexual orientation and gender identity.

You can read the report, but honestly I think we have a pretty good idea. Lots of states, including but hardly limited to Texas, have been pushing all kinds of homophobic and transphobic policies, from curriculum changes to book banning to just out and out hateful rhetoric. The current election threatens to make things worse. What did you expect? Sure, things are better now than they were in the past, but there’s no guarantee that will continue. We have a lot of work to do.

You can be gay, you just can’t act gay

So rules a notoriously anti-gay Trump judge, narrowing a SCOTUS ruling from just two years ago at the behest of the usual suspect.

A federal judge has ruled that Biden administration guidelines requiring employers to provide protections for LGBTQ employees go too far, in a win for Texas Attorney General Ken Paxton, who brought suit against the rules last fall.

The rules were first issued after the landmark ruling in Bostock v. Clayton County in 2020, in which the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex or religion, includes protection for gay and transgender people.

In 2021, the Biden administration released guidance around the ruling, noting that disallowing transgender employees to dress and use pronouns and bathrooms consistent with their gender identity constituted sex discrimination.

Judge Matthew Kacsmaryk, a Donald Trump-appointed U.S. district court judge for the Northern District of Texas, found that Title VII prohibits employment discrimination against an individual for being gay or transgender, “but not necessarily all correlated conduct,” including use of pronouns, dress and bathrooms.

Earlier this year, after Paxton issued a nonbinding legal opinion that gender-affirming medical care for transgender minors could be considered child abuse, Health and Human Services Secretary Xavier Becerra released additional guidance that federally funded agencies can’t restrict people from accessing “medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity.” Kacsmaryk also ruled to vacate that guidance.

[…]

Kacsmaryk is himself known for his opposition to expanding or protecting LGBTQ rights. Before being nominated to the bench, Kacsmaryk was the deputy general counsel for the First Liberty Institute, a conservative legal organization focused on religious liberty cases. In a 2015 article arguing against the Equality Act, Kacsmaryk wrote that the proposed legislation that would prohibit discrimination based on sex, sexual orientation or gender identity would “punish dissenters, giving no quarter to Americans who continue to believe that marriage and sexual relations are reserved to the union of one man and one woman.”

In a 2015 article for the National Catholic Register titled “The Abolition of Man … and Woman,” Kacsmaryk called the term gender identity “problematic” and wrote that, “The campaigns for same-sex ‘marriage’ and ‘sexual orientation’ and ‘gender identity’ (SOGI) legislation share a common legal theory: Rules predicated on the sexual difference and complementarity of man and woman are relics of a benighted legal regime designed to harm ‘LGBT’ persons, or at least deny them ‘full equality.’”

I wonder sometimes how Ken Paxton would do if instead of being able to pick his judges he always had to argue his cases in front of a judge that, you know, ruled on the law and the merits of the case rather than on what they felt like. Probably would have a lower batting average, I’m thinking. Anyway, that ruling was 6-3, with Gorsuch the author and Roberts joining him and the (at the time) four liberals. That means that five judges who ruled for the plaintiffs are still there. It’s certainly possible, maybe even likely, that the Biden administration read that ruling in as expansive a manner as they thought they could, and as such they could have overstepped what SCOTUS had in mind. I suppose we’ll get to find out, once the Fifth Circuit does its duty of upholding the ruling. We know that in general this SCOTUS doesn’t give a crap about precedent, but maybe they’ll feel differently when it’s their own precedent.

Whither the Log Cabin Republicans

A whole lot of words about a group of people that make no sense to me.

In June 1998, a group of gay and lesbian conservatives, pushing for greater representation at the Texas Republican Party convention in Fort Worth, found themselves in a frightening clash with members of their own party.

Members of the Log Cabin Republicans were protesting at the gathering of party faithful after a state GOP official made offensive comments comparing the group to the Ku Klux Klan and pedophiles. The group was also protesting the rejection of their request to host a booth at the convention — the second time in a row they’d been denied — where they hoped to share information about their organization.

Counterprotesters surrounded the Log Cabin members, wielding signs with homophobic slurs and phrases like “The Gay Life = AIDS Then Hell.” They pushed and spat and shoved their fingers in the faces of the gay Republicans.

Richard Tafel, the former executive director of the national Log Cabin Republicans which bills itself as the “nation’s largest Republican organization dedicated to representing LGBT conservatives and allies,” attended the Texas convention that year and recalls thinking he was in serious danger as they advocated for respect from members of their own party.

“We’re here to draw the line,” Tafel declared at the protest. “No more hatred, no more hatred in the name of God. And we won’t be silenced.”

A counterprotester threw a sign at his face.

“It was a tornado of emotion, volatile and dangerous, ready to touch down and sweep us all away at any moment. I was afraid for my own safety and that of others,” wrote Dale Carpenter, a former president of Log Cabin Republicans of Texas, in a newsletter later that year.

Ultimately, no one was injured that day. But it was a vivid display of homophobia within the party.

More than two decades later, this year’s Texas Republican convention made headlines again for its attitudes toward LGBTQ people. The party adopted a platform in June at its convention in Houston declaring that “homosexuality is an abnormal lifestyle choice.” That party position comes after similar language had been stripped from the platform just four years earlier, representing a backward step for Log Cabin members who have for years been fighting for acceptance within their ranks.

Gay Republicans who have fought for acceptance within the Texas GOP over the past three decades told The Texas Tribune progress has been excruciatingly slow. Many of them have left the party, even as the number of Log Cabin Republicans in Texas continues to grow.

“I do not believe that we made any progress. In fact, I think the party got worse,” Carpenter, who is no longer involved in party politics, said of his time as the state’s Log Cabin president.

I won’t argue with that. I can understand being gay and conservative, in the old-school business-friendly Republican sense of that word. Lower taxes, fewer regulations, less government – not my cup of chamomile, but I can see the argument. I can’t understand why any LGBTQ person today would want to associate themselves with the Republican Party, given not just the platform of the deranged Texas GOP but the legislative and legal actions being taken by Republican politicians and candidates and supporters around the country. It’s not a matter of worldviews, it’s a matter of the party not wanting you to exist. Read on for more of where these folks, many of whom like Dale Carpenter no longer identify as Republican, came from and where they are now.

(NB: The story has some quotes from Marco Roberts, the former state chair for Log Cabin. I’ve been on “The Good, The Bad, and The Ugly” on Houston Matters with Marco a number of times, including last month and earlier this month. He’s an affable and thoughtful person and I enjoy being on those segments with him. I hadn’t actually realized he was former Log Cabin until I read this story, even though the intro line that host Craig Cohen uses for him changed – it used to credit him with that association. I was thinking about him as I started reading this story and just wanted to mention that here.)

The book ban requests are coming from inside the house

Typical “grassroots” campaign.

Greg Abbott in the 80s

The wave of book reviews and removals that swept across Texas in the last year was driven more by politicians than parents, a Houston Chronicle analysis found, contradicting claims that recent book bans were the result of a nationwide parental rights movement to have more control over learning materials.

The findings, drawn from public information act requests sent to nearly 600 Texas school districts that teach more than 90 percent of the state’s 5.4 million public school students, show there were at least 2,080 book reviews of more than 880 unique titles since the 2018-19 school year. Of those, at least 1,740 reviews occurred during the 2021-22 school year.

Nearly two thirds of those reviews — 1,057 — occurred after state Rep. Matt Krause, R-Fort Worth, asked districts last fall to check their shelves for books on a list he circulated. The books on Krause’s list of roughly 850 titles, predominantly feature LGBTQ+ characters and people of color in main character roles, as well as mentions of racism, the Holocaust, sexual violence, sexuality and abortion.

About a dozen districts account for more than 1,500 of the book reviews, the Chronicle found. Most of the reviewed works remained on shelves, with 269 books removed entirely and 174 instances in which access to titles was made available only to older students. In some cases, districts removed books they deemed out of date but replaced them with more recent titles on similar subjects.

Most districts in the Houston region largely ignored the Krause list or did not conduct reviews because of it.

Krause did not respond to emails requesting an interview, and has refused to reveal whether he and his office created the list or if it came from a third party. In an interview with the Dallas Morning News last November, he called his letter and the list “an inquiry used for fact gathering to see if anything needs to be done,” and said he did not anticipate they would be leaked to the news media.

“We could decide there’s nothing here, let’s move on. And nobody even knows about it. Or it could be we’ve got a pervasive problem,” he said. “It certainly raised the consciousness of parents needing to be involved in their schools. We’ve had some school districts thank us and say, ‘We don’t want inappropriate materials for our kids.’ We wanted to give schools an idea of what books they had in their library so they don’t get caught off guard.”

The Chronicle’s findings, likely an under-count of book reviews because 292 districts did not respond, represent one of the clearest assessments to date of the extent of an escalating, national assault — mostly led by politicians, elected officials and conservative activists — on literature that explores race, LGBTQ+ issues and sexuality.

“It’s a malign campaign to create a moral panic around information young people want and need,” said Deborah Caldwell-Stone, director of American Library Association’s Office for Intellectual Freedom. “It’s resulted in really tragic consequences, not only for young people being denied access to information, but also for people who are made to understand they don’t belong in their communities, at least in the eyes of the individuals who raise these claims.”

The library association registered challenges or removals of 1,597 individuals books across the country in 2021, a record number since the nonprofit began keeping a tally 20 years ago.

See here, here, and here for some background. I would bet that Krause had help from one or more under-the-radar billionaire-funded right wing groups. Why do the work when it’s so easily outsourced? To be fair, some of the book-banning energy does come from deeply committed bigots from the private sector. There’s never an escape from those people. Sadly, it’s the school librarians who are on the sharp end of the stick here. I don’t know what we can do about that. Read the rest of the story and get involved with your neighborhood schools to help them deal with this crap.

Ted Cruz says Texas should repeal its anti-sodomy law

I feel obligated to note this.

U.S. Sen. Ted Cruz, one of the most socially conservative Texans serving in Congress, told The Dallas Morning News that Texas should repeal its now-dormant law that bans gay sex.

“Consenting adults should be able to do what they wish in their private sexual activity, and government has no business in their bedrooms,” Cruz’s spokesperson told the newspaper.

The Texas Legislature passed the law decades ago. It hasn’t been enforceable since 2003, when the U.S. Supreme Court decided in a landmark ruling that it violated the Constitution. There have been regular attempts by Democrats to repeal the law since, but they have repeatedly failed in the Legislature.

But questions over the future of that precedent have surfaced after the Supreme Court overturned Roe v. Wade in June. Both the 1973 abortion case and the gay sex case, known as Lawrence v. Texas, were decided based on the idea of a constitutional right to privacy.

The court’s overturning of Roe caused some to wonder whether other cases based on that privacy right would be next — and conservative Justice Clarence Thomas had suggested that the court reconsider the Lawrence precedent.

The court’s landmark ruling legalizing gay marriage was decided under similar reasoning. In recent weeks, Cruz has reiterated his opposition to that decision. He also frequently brought up his opposition to that ruling while campaigning for president that year in socially conservative states like Iowa and South Carolina.

Recently on his podcast, Cruz reiterated his belief that the decision was “clearly wrong” on the grounds that states, not the enacting of a federal standard, should govern gay marriage policy.

Even so, he said he didn’t think the court would overturn that ruling.

Whether SCOTUS would go along with Clarence Thomas’ fondest wish or not is unknown, but they will likely have ample opportunity in the near future to hear cases that have been brought by the same people that pushed to overturn Roe and are now pushing to overturn Windsor and Obergefell. I see no reason at all to trust in their intentions. But taking that into account and remembering that this is still Ted Cruz talking, I appreciate what he has said here. And given that he has said it, I see no reason why the Texas Legislature can’t do it. If even Ted Cruz thinks this is the right thing to do, what argument does some random Republican State Rep have?

Texas sues USDA over LGBTQ protections

Here’s the story, which I’ll get to in a minute. It might be best to try to summarize this more accurately, because this is one of those technical situations where it takes a lot of qualifiers to get at what’s actually at stake. So with that in mind:

Clear enough? OK, on to the story:

Best mugshot ever

Attorney General Ken Paxton and more than 20 other attorneys general are challenging the federal Food and Nutrition Service’s new policy that recipients of food assistance funds update their nondiscrimination policies to protect LGBTQ people.

In May, the U.S. Department of Agriculture announced it was expanding its interpretation of discrimination based on sex. As a result, state agencies and programs that receive funding from the Food and Nutrition Service were ordered to “investigate allegations of discrimination based on gender identity or sexual orientation” and to update their policies to specifically prohibit discrimination based on gender identity or sexual orientation.

Paxton and his counterparts claim the guidance issued by the USDA is “unlawful” because states were not consulted and did not have an opportunity to provide feedback, in accordance with the Administrative Procedure Act. They also argue that the USDA is misinterpreting the Supreme Court case Bostock v. Clayton County, which extended sexual discrimination in the workplace to include discrimination based on gender identity or sexual orientation.

“[It] will inevitably result in regulatory chaos that threatens essential nutritional services to some of the most vulnerable citizens,” Paxton’s office said in a press release.

And as we know, no one cares more about our most vulnerable citizens than Ken Paxton. TPM adds some details.

In their suit, the Republican attorneys general argued that, in its reasoning behind the new guidance, the USDA had misapplied Bostock v. Clayton. They also argued that the government hadn’t followed procedural notice-and-comment rules for the new guidance, as outlined in a federal law known as the Administrative Procedure Act.

Or, as ACLU communications strategist Gillian Branstetter put it, “The AGs argue schools have the right to deny queer and trans kids lunch money.”

Tuesday’s suit asserted “the States do not deny benefits based on a household member’s sexual orientation or gender identity.” But it challenged the “unlawful and unnecessary new obligations and liabilities” it alleged were associated with the guidance.

The lawsuit cited existing red state laws that “at least arguably conflict” with the USDA guidance, such as rules prohibiting transgender students from participating in sports programs that align with their gender identity, rather than the gender they were assigned at birth.

The Republicans’ suit comes two weeks after 20 Republican attorneys general won a preliminary injunction in the same federal court district — the Eastern District of Tennessee — against similar guidance from the Department of Education and the Equal Employment Opportunity Commission. A federal judge found the federal directive clashed with state laws regarding gender-based laws being applicable to, for example, bathrooms and sports teams.

I don’t know enough to say what the likely effect of this might be if these homophobic AGs get their way, but we can all be sure it won’t be good. If Ken Paxton can sue to force hospitals to let women die, then a few gay kids going hungry won’t bother him.

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

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

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

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

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

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

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

Gay Marriage

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

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

Insurance Mandates

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

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

Employment Discrimination

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

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

LGBT Library Books

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

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

‘Save Chick-fil-A’

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

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

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

House passes bill to protect same-sex marriage

A surprisingly bipartisan vote, by which I mean “more Republicans than you can count on your fingers voted for it as well”.

The Democrat-led House of Representatives on Tuesday voted to pass a bill that would enshrine protections for same-sex marriage into federal law.

The bipartisan final vote was 267 to 157 with 47 Republicans joining with Democrats to vote for the bill. It’s not clear, however, whether the bill can pass the Senate where at least 10 Republicans would need to join with Democrats to overcome the filibuster’s 60-vote threshold.

The vote comes amid fears among Democrats that the conservative majority on the Supreme Court could take aim at same-sex marriage in the future, after the high court overturned Roe v. Wade in a highly consequential reversal of longstanding legal precedent.

The bill — called the Respect for Marriage Act — was introduced by Democratic Rep. Jerry Nadler of New York, the chair of the House Judiciary Committee.

In addition to safeguarding the right to same-sex marriage nationwide, the bill also includes federal protections for interracial marriages. The measure holds that a marriage must be recognized under federal law if the marriage was legal in the state where it took place.

The bill would also enact additional legal safeguards for married couples intended to prevent discrimination on the basis of sex, race, ethnicity or national origin, including empowering the attorney general to pursue enforcement actions.

[…]

House Democrats, leaning into cultural issues in the aftermath of the Supreme Court’s abortion decision, also are looking at moving a bill this week to guarantee access to contraception.

The Supreme Court’s bombshell opinion overturning Roe v. Wade has set off a debate over whether other precedents are now in danger.

The majority opinion from Justice Samuel Alito attempted to wall off its holding in the abortion case from those other rulings, but Justice Clarence Thomas wrote separately to call explicitly for other rulings to be revisited.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote, referring to decisions on contraception and same-sex relationships.

Liberals have said that those rulings are now at risk.

In their dissent, the court’s three liberal justices wrote “no one should be confident that this majority is done with its work.”

“The right Roe and Casey recognized does not stand alone,” they wrote. “To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception. In turn, those rights led, more recently, to rights of same-sex intimacy and marriage.”

The liberals added: “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

See here for my post about the House passing a bill to restore abortion access. This one got one Republican vote from Texas, one more than the abortion access bill got (and yes, one more Democratic vote, as Henry Cuellar can get stuffed). Unlike the abortion access bill, this one may have a chance to pass the Senate; at the very least, it’s got Senate Republicans all discombobulated. (To be fair, Ted Cruz remains solidly un-discombobulated.) They apparently just never expected Dems to make them vote on this stuff, which honestly doesn’t say anything good about either of them. But at least the Dems are pressing the issue now, and it will either result in a good law being passed or a good campaign issue presenting itself. More like this, please. The Chron and The 19th have more.

How are Texas businesses going to react to the forthcoming criminalization of abortion?

It’s too soon to say. Certainly too soon for most of them to say.

In overturning Roe v. Wade, the Supreme Court presented corporate America with a question that may prove uncomfortable for big companies headquartered in states such as Texas, where abortion has effectively been banned.

Several national companies — including Disney, Goldman Sachs, and Meta, the parent company of Facebook — reacted the Dobbs v Jackson ruling handed down Friday by announcing that they would reimburse the cost of employees who need to travel out of state to access abortion care. Companies including Apple, Amazon, Citigroup, J.P. Morgan, SalesForce, Bumble and Levi’s had already announced similar policies, in anticipation of such a ruling or after draconian restrictions on abortion were adopted by states such as Texas, which last year banned virtually all abortions after the six-week mark of pregnancy.

But many Houston companies have not been forthcoming about whether they will modify their benefits to help employees get access to reproductive health services.

“We do not have a comment on this issue,” said Kinder Morgan, contacted by the Houston Chronicle on Monday.

“We decline to contribute at this time,” said EOG Services, an oil and gas company.

“We have no comment on this,” said Hines, the real estate firm.

[…]

Experts say no Texas laws prohibit companies from paying for travel for abortion services. A 2017 state law limits the extent to which conventional insurance companies can cover elective abortion, but makes no mention of travel.

“I don’t see they currently have liability if they pay for travel expenses for a lawful, out-of-state abortion,” said Seth J. Chandler, a professor at the University of Houston Law Center.

Whether companies decide to pay for travel expenses may have something to do with how it will affect their ability to attract talent, Chandler said.

“There is an issue of how you would attract employees, if there is a type of health care they perceive they may need is illegal,” Chandler said. “One vehicle for companies to overcome that reluctance is to say, ‘We’ll pay for your travel.’”

It’s not clear to me that they wouldn’t face civil litigation under the vigilante provisions of SB8, but even if they don’t, the Handmaid’s Tale caucus of the legislature will be working to change that.

Several companies have already announced they would cover expenses for an employee who has to travel for an abortion, including Walt Disney Co., Meta and JPMorgan Chase.

Those companies could be punished under the “accomplice liability” section of Texas, which applies to all residents and, according to Cain, also businesses.

“So, it also not just goes after the doctors, but it’s going to be going after those giving rides, supporting it, procuring the means, assisting, anybody that is an accomplice to the procurement of an abortion is also then committing a crime,” the Republican said.

That of course is chief woman hater Briscoe Cain, who says in the story that prosecuting “abortion crimes” is one of his top priorities. Let’s get real, it’s his main driving force. If Briscoe Cain gets his way, a whole lot of people are going to go to jail. That’s the reality we’re in right now.

There are a couple of ways that businesses can respond. They can cower and submit to the likes of Cain, and throw a bunch of their employees under the bus in the process. They can get the hell out of Texas or not come here in the first place; I suspect some will do that, though it’s hard to say how many. Allowing some employees to not live here would be another variant of this. I hope we get some real data and not just anecdotes about that.

And of course, they can fight. They can support candidates who support abortion rights, and other things that SCOTUS and the radicals that are currently in power are threatening, like same sex marriage and LGBTQ rights. That would be a huge change on their part, because keeping their heads down and not offending the powers that be is always the easier road to take. But it has the potential to have by far the biggest effect. It’s a choice they have, that’s all I’m saying. Providing expenses for employees who have to travel out of state to get reproductive health care is a reasonable choice as a short-term stopgap. But there’s only so long that can work. They can’t avoid the choice forever.

Maybe this is finally the end of that zombie same sex employee lawsuit

I dream a dream.

The Texas Supreme Court has declined to consider a challenge aimed at preventing the city of Houston from offering benefits to employees’ same-sex spouses.

The ruling is the latest blow to two Houston residents’ prolonged fight against a policy they consider an illegal use of taxpayer dollars.

Plaintiffs Jack Pidgeon and Larry Hicks have waged a legal battle against the policy since 2013, when the city, then led by former Mayor Annise Parker, granted government benefits to municipal employees’ same-sex spouses. Parker was the city’s first openly gay mayor.

On Friday, the state Supreme Court declined to review the pair’s case against the city, which originated nine years ago and has failed to find footing even in the conservative-leaning Texas judiciary.

[…]

Of the pair’s decade-long campaign to overturn her administration’s policy, Parker said Tuesday she hoped the court’s decision would quash future challenges.

“I didn’t do it to make a point,” Parker said of the policy. “I did it to be fair to all married city employees. Marriage should be marriage. Equal should be equal.”

See here and here for the previous updates. These guys and their stooge lawyer Jared Woodfill have more than proven that they really really hate gay people, but surely even this kind of rabid bigotry has its limits. The bell has rung, the lights are out, the doors have closed, and Elvis has left the building. Go find a less destructive hobby, fellas. I’ve heard gardening is nice.

I’m just going to say this one thing about the pending evisceration of abortion rights

Chris Tomlinson gets at the issue but doesn’t take it all the way.

The Supreme Court’s apparent decision to allow state lawmakers to make women’s health care choices puts chief executives in a tough spot, forcing them to choose between their employees’ rights and right-wing backlash.

Disney’s recent experience defending LGBT rights against Florida Gov. Ron DeSantis’s demagoguery will sadly encourage cowardice.

Millions of Texans are waiting to hear how their employee health insurance will handle abortion coverage when the procedure becomes a first-degree felony punishable by life in prison.

Texas Republicans have made banning abortion their marquee issue for decades. In addition to prohibiting government health insurance from paying for abortions, the Legislature also banned state-regulated plans from covering them.

Employers of 60 percent of Americans with company-sponsored health insurance, though, use self-funded plans. These are exempt from state regulations, according to the Kaiser Family Foundation, a health care research organization. Only 14 percent of self-funded plans exclude some or all abortions.

Polling shows 59 percent of Americans think abortion should be legal under all or most circumstances, according to Pew Research.

After Gov. Greg Abbott allowed Texans to privately prosecute other Texans who seek an abortion after six weeks of pregnancy, many companies stepped up. Amazon, Citigroup, Salesforce, Apple, Bumble, Levi’s, GoDaddy, Match, and Hewlett Packard Enterprise, have all promised to help employees get abortions outside Texas.

“We are pro-woman. We will support a woman’s right to make health care decisions for herself, even if that means traveling out of state. It’s an investment that’s not just right, but good business too,” Curtis Sparrer, a principal at Houston-based PR firm Bospar told me in an email.

The company will pay for travel and other expenditures should a Bospar staff member need reproductive health care banned in any state where they live, Sparrer added.

“We want other companies and PR agencies to join the fight, especially since many are composed of women and are led by women. The rights of women are not just on the line,” he added. “As someone who credits his same-sex marriage to the legacy of Roe, I am imploring my colleagues and friends to end their silence and speak truth to power.”

Taking a stand on anything, though, is becoming more perilous for corporations and executives who would rather generate profits than controversy. Employees, especially younger workers, expect their company’s leadership to reflect their values.

“More than half of consumers will buy or advocate for brands based on their beliefs, while six in 10 employees will choose employers based on shared beliefs and values,” according to Edelman, a global PR firm. “A stunning 81 percent of respondents want CEOs to be front and center discussing public policy.”

The first thing to realize is that the forthcoming overturn of Roe and Casey is the beginning, not the end. Next up will be a nationwide ban on abortion, for which Senate Republicans are already writing a bill. Now that they will no longer have to pretend that this has anything to do with women’s health, rape and incest exceptions will go away, and it won’t be just doctors who are targeted for arrest and prison. I guarantee you, lowlife creeps like Briscoe Cain cannot wait to throw women in jail for anything that looks like an abortion. Lizelle Herrera was not an aberraion.

If you think I’m being alarmist, go find a copy of that draft opinion and read it for yourself. Note carefully the section in which Sam Alito claims that this opinion is only about abortion and not all of those other things that people like him despise and want to get rid of, like the previous SCOTUS decisions on same-sex marriage and contraception and “sodomy”. I will remind you that most if not all of the justices who have signed onto Alito’s opinion also swore under oath during their Senate confirmation hearings that they considered Roe to be “settled law” and that they respected precedent. There’s no reason at all to believe anything that a known liar says.

So get mad, get organized, and get everyone you know who has the same concerns as you to vote. Businesses are going to have to do more as well, if they actually do care about their employees. But it’s on us, to vote and to put pressure on the people we’ve voted for to act. The clock has struck midnight. What are we going to do about it?

Air Force aims to care for its families with LGBTQ members

Good for them, but…

The Air Force has issued a reminder to service members that it can help protect them from anti-LGBTQ state initiatives, such as the one in Texas that raised the possibility of child welfare investigations against parents with transgender children.

The guidance, issued by Air Force Undersecretary Gina Ortiz Jones, said the service would use medical, legal and other resources to support its personnel who run into such problems.

“We are closely tracking state laws and legislation to ensure we prepare for and mitigate effects to our airmen, guardians and their families,” Jones said, using “guardians” as the official shorthand for members of the U.S. Space Force. “Medical, legal resources, and various assistance are available for those who need them.”

“The health, care and resilience of our personnel and their families is not just our top priority — it’s essential to our ability to accomplish the mission,” she said, according to a news release.

Jones is a San Antonio native and Air Force veteran who is gay and served in the “don’t ask, don’t tell” era. Her message seemed at least partly a response to this year’s order by Gov. Greg Abbott that the Texas Department of Family and Protective Services investigate parents providing gender-affirming care to their transgender children.

[…]

Jones said troops could use the Exceptional Family Member Program to help with medical, legal, and educational support for dependents as they move to new jobs and bases.

“As is the case with all of our family members, if the support a family member needs becomes unavailable, commanders can work to get the service member to an assignment where their loved ones can receive the care they need,” she said.

Base legal offices are another source of help navigating new and existing state laws, the Air Force statement said, adding, “While installation legal personnel cannot represent airmen, guardians or their families in court, they can provide vital advice and counsel.”

Personnel can seek additional support through their local Airman and Family Readiness Center, the Military and Family Life Counseling Program, or Military OneSource, which can be contacted day or night at (800) 342-9647.

First and foremost, good for the Air Force. It is very much their responsibility to take care of and do right by their employees and those employees’ families, and it’s good to see them step up and do so in this way. Having someone in charge who gets it no doubt helps. Of course, it’s an absolute travesty that they feel the need to do this, to protect their employees like this from a threat from state governments. I cannot wrap my head around how quickly and effortlessly we’ve arrived at this place, and I keep waiting for there to be a more substantive resistance to it. Along those lines, it would be nice for the rest of the armed forces to follow the leadership of the Air Force here. If the Army, Navy, Marines, and Coast Guard were speaking with the same voice as the Air Force, maybe we could get some traction against these evil efforts to demonize children and their parents. We really need everyone to do their part.

Our new school library standards

I am casting a gimlet eye at this, at least for now.

Greg Abbott in the 80s

The Texas Education Agency released statewide standards Monday for how school districts should remove and prevent “obscene content” from entering Texas public school libraries.

In the agency’s model policy, there is an emphasis that parents should have a role in how books are selected. The agency says that districts should make new selections readily available for parents to review. School librarians or staff should be “encouraged” to ask parents what their children can and cannot read.

The new guidelines suggest that school boards have final approval of all new books and that a committee should be put in place to review books if parents file a formal “request for reconsideration.”

To avoid “obscene” content in libraries, the agency reminded school districts that state law spells out that handing out inappropriate materials to minors is a crime. Texas librarians, school administrators and public education advocates have denied allegations that there are “inappropriate” or “pornographic” materials in school libraries or that they’re handing out such content.

The standards are to be used as guidance for school district officials as they develop new procedures or alter their policies for selecting or removing library books. School districts, which are largely independent governmental entities and run by locally elected trustees, are not required to adopt the agency’s recommendations.

The TEA’s new standards come about five months after Gov. Greg Abbott directed that agency, the Texas State Library and Archives Commission and State Board of Education to develop such guidelines. In his directive, Abbott cited two memoirs about LGBTQ characters, which include graphic images and descriptions of sex, that were found in some Texas school libraries.

“There have been several instances recently of inappropriate materials being found in school libraries,” TEA commissioner Mike Morath said Monday in a letter to Abbott. “This model local school board policy will serve as a helpful guide to school boards as they create the policies for their school district libraries.”

In his letter Monday, Morath said that his agency worked with the state’s library and archives commission and the SBOE chair to develop the guidelines.

As most school districts have existing policies for how books are selected or removed, it was not immediately clear Monday how this guidance will affect individual school libraries.

Shannon Holmes, executive director of the Association of Texas Professional Educators, warned school district officials to be wary of what policies they decide to adopt. Holmes said they should listen to their communities and not to be taken away by the politics surrounding the situation.

“As we have said since these latest book controversies began, elected school boards have for decades had the means to work with educators and parents to determine what library content meets the needs of their local communities,” Holmes said.

I have not read the new standards yet – only so many hours in the day, etc etc etc. Honestly, I’d like to hear what the professionals have to say about them first, because I’m not sufficiently versed in this topic to get all the nuances. I think the library and archives commission is a good faith actor, so there’s a chance this isn’t all that bad. I definitely agree with Shannon Holmes that school districts should be very careful with how they handle this, and take all needed steps to keep the hotheads, censors, and general do-badders at bay. I wish them all the luck in the world with that.

Dan Patrick wants a “Don’t Say Gay” bill for Texas

Of course he does.

Lt. Gov. Dan Patrick said Monday he will prioritize passing Texas legislation that mimics the recently signed Florida bill referred to as the “Don’t Say Gay” law.

That state’s controversial law prohibits classroom lessons on sexual orientation or gender identity for kids below the fourth grade or any instruction that is not “age-appropriate or developmentally appropriate” for older students. It has come under heavy scrutiny as opponents of the bill say it will harm LGBTQ children.

While Texas’ next legislative session doesn’t start until January, the issue will be addressed in Education Committee hearings before then, Patrick said in a campaign email.

“I will make this law a top priority in the next session,” he said.

Patrick’s office did not immediately respond to a request late Monday.

Enforcing Florida’s law falls to parents, much like Texas’ restrictive abortion law, Senate Bill 8, which empowers private citizens to sue anyone who “aids or abets” an abortion after about six weeks of pregnancy.

A parent can sue a school district for damages if they believe it has broken the law. If they win, parents will receive money and recoup attorney fees. In Florida, the law’s supporters portrayed it as a way to give more rights to parents. Gov. Greg Abbott has similarly said parents should have more rights concerning their children’s education as he campaigns for a third term.

Val Benavidez, executive director of the Texas Freedom Network, said in a statement to The Texas Tribune that Patrick’s promise to bring similar legislation to the state is a “stain on Texas.”

“Gender expression by children is not something that is scary or harmful. What is scary is that political activists are grasping at power by overstepping into the lives of Texas families and education of students,” Benavidez said. “While politicians use hate speech that is far from center to harm our vulnerable youth, we will continue to love our children and make sure that all families are uplifted in public life.”

Look, we know Dan Patrick means what he says when he says crap like this. He hates LGBTQ people, and he’s going to do everything he can to make their lives miserable, especially now that he’s seeing other states do things that Texas doesn’t do. We can either vote him out, or we can watch him do what he says he’s going do. Not much else to say about it.

Divorce granted in common-law same-sex marriage case

Good result.

On March 24, a San Antonio jury returned a verdict in favor of Christopher Hoffman, a gay man who sought to prove a common law marriage existed since 1996 with his former partner, Moises Ortiz. The decision clears the way for Hoffman to legally divorce Ortiz and thus be eligible for alimony and other benefits .

Various judges have ruled a same-sex marriage existed before Obergefell vs. Hodges, the 2015 Supreme Court decision that legalized same sex marriage. However, this is the first time a jury in Texas has made such a finding within the confines of a divorce action.

[…]

The four-day trial was held in the 285th District Court of Bexar County, with Judge Aaron Haas presiding, The twelve-person jury voted 10 to 2 in favor of Hoffman. They found the couple was married on February 14, 1996, and that grounds existed for the court to grant a divorce.

In an email to Out In SA, Hoffman’s attorney, Justin P. Nichols, wrote, “To have a jury validate that the couple’s relationship constituted a marriage meant a tremendous amount to Hoffman, who has been fighting for almost three years to have his marriage recognized. This case can have broad implications for thousands of gay couples throughout Texas.”

See here for the background. It is good news, and it should have a positive effect for other same sex couples. I doubt this would be appealed, so the precedent is now there. Given the continued opposition to same-sex marriage among Republicans, though, I would not be surprised to see a bill introduced in the next legislative session to try to overturn this. I hope I’m wrong, but don’t be shocked if it happens.

When a divorce helps to define a marriage

Interesting case.

A gay San Antonio man has filed for a divorce in which he seeks to prove a common law marriage existed with his former partner of 25 years when federal law prohibited same sex marriage. The law has since then been ruled unconstitutional by Obergefell vs. Hodges in 2015.

If he is successful in his divorce petition, Christopher Hoffman would be eligible for alimony and other benefits from his former partner Moises Ortiz. It would also mark the first time in Texas that a common law [informal] divorce would be granted to a same sex couple who were together prior to Obergefell.

The Texas Family Code provides two methods for establishing a common law [informal] marriage. The first is to “file a declaration of informal marriage with the county clerk. Tex. Fam. Code 2.40l(a)(l).” The second is by showing that “I) the parties ‘agreed to be married’; 2) that the parties lived together as spouses; and 3) that they ‘represented to others that they were married.’ Tex. Fam. Code 2.401 (a)(2).” Additionally, the partner seeking to establish the existence of a common law marriage “bears the burden of demonstrating the three elements by a preponderance of the evidence.”

According to court documents, Hoffman and Ortiz lived together for 25 years beginning in 1994. Hoffman filed for the common law divorce on July 19, 2019 citing adultery and mistreatment among other reasons. In responding to Hoffman’s assertion, Ortiz denies that a common law marriage existed, saying that he and Hoffman had only been roommates.

On July 30, 2019, Judge Mary Lou Alvarez of the 45th District Court of Bexar County found that Ortiz’s claim that he and Hoffman “were simply roommates that acted as partners to be incredulous testimony.” The judge went on to issue a temporary order requiring Ortiz to pay Hoffman $1,200 monthly for interim spousal support until a final jury trial’s verdict.

On January 22, 2021, Ortiz’s attorney filed a motion for a Declaratory Judgment which would have made a final, legally binding declaration that Hoffman’s petition was not valid.

Ortiz contended that there was no precedent in Texas state law to show that Obergefell applies retroactively to same sex couples. Hoffman’s attorney countered that there had been two incidents (Ford v. Freemen 2020 and Hinojosa v. LaFredo 2012) of courts in Texas recognizing “a pre-Obergefell same sex common law marriage. However no Texas appellate court has issued any binding authority on the issue.”

(Lambda Legal Senior Staff Attorney Shelly Skeen authored a brief in the Hinojosa v. LaFredo case.)

There are a couple of precedents I could cite for pre-Obergefell marriages later getting legally dissolved in Texas. Way back in 2010, a Travis County district court judge granted a divorce to two women who had been married in Massachusetts. Then-Attorney General Greg Abbott sued to undo the divorce ruling on the grounds that their marriage was not recognized by the state of Texas. That case went all the way to the State Supreme Court, which ruled against Abbott, upholding a Third Court of Appeals decision that Abbott didn’t have standing because he waited to intervene until after the original district court ruling. That ruling happened a few months before Obergefell, and SCOTx was emphatic that it was not saying anything about the constitutionality of same-sex marriage, just about the AG’s standing to intervene in that case.

In 2014, there was a divorce and child custody filing in Bexar County, also between two women who in this case had been married in Washington,. That one had been filed eight days before a federal judge ruled that Texas’s law against same-sex marriage was unconstitutional; this was the original Texas case filed by Cleopatra De Leon and Nicole Dimetman, and Vic Holmes and Mark Phariss. The judge in that Bexar County case later also ruled that Texas’s law against same-sex marriage was unconstitutional, basing her opinion on the federal case while specifying sections of the state’s Family Code as being illegal. She also cordially invited Greg Abbott to butt the hell out, which kind of makes her my hero. I don’t have any further updates on that case, so it’s my best guess that it eventually proceeded to a normal resolution in the courts.

Finally (yes, I went deep on this one; it’s a topic that fascinates me), there was a post-Obergefell divorce granted in Tarrant County, the culmination of a proceeding that had been filed in 2013. It appears that it was the SCOTUS ruling on same-sex marriage that spurred the case resolution for this one.

So with all that said, and with the usual proviso that I Am Not A Lawyer, I like plaintiff Hoffman’s chances, on the grounds that this is in every other way a pretty normal, boring divorce case that will ultimately be decided on the merits. It’s certainly possible that some bad actors might try to get involved in an effort to pursue a ruling that might draw a distinction between “traditional” marriage and same-sex marriage. I don’t know how that might happen, and I don’t know if it can happen if defendant Ortiz objects to their intervention, I just know that the there are definitely people who would like to intervene in this fashion and for this purpose, and I wouldn’t put it past them. Anyway, I’ll try to keep an eye on this one, just to see how it goes. The trial begins today, so we may know more soon.

Students against banning books

I have three things to say about this.

Greg Abbott in the 80s

For high school senior Gabrielle Izu, Texas’ public school book bans feel personal.

The books Texas is targeting — mainly novels that focus on discussions of race, sexual orientation and gender identity — tell the tale of Izu’s past and future. The 17-year-old high school student is Asian American, Black and Hispanic and bisexual, and she hates to see her identities or her peers’ censored.

“I ignored [my sexuality] for a really long time. And I think that as a young girl, if a book showed me that this is a life that could be lived, I could have had a lot more peace and coming to terms with bisexuality,” said Izu, who attends James E. Taylor High School in the Katy Independent School District near Houston.

Here and there, Texas students are forming their own book clubs to read what adults want banned. Books like Margaret Atwood’s “The Handmaid’s Tale,” Ashley Hope Perez’s “Out of Darkness” and Carmen Maria Machado’s “In the Dream House.” Books that, until last fall, were easy to find and access.

In Katy ISD, students have distributed hundreds of novels challenged by adults in Texas. They’re getting the books free of charge from a political advocacy organization and publishers. And Leander ISD near Austin, students are coming together in a banned-book club to discuss those books. Some students are starting to attend school board meetings to fight for the freedom to choose what to read.

More than a hundred Katy ISD students of a variety of ages, races and gender identities met after school to discuss the bans and pick up contested novels. Among the books they’re reading is Kalynn Bayron’s “Cinderella is Dead,” a novel that follows a queer, Black teenager’s coming-of-age story. Izu, who saw herself reflected in the book, said her heart broke when Texas schools targeted it for a ban.

“It felt like my identity was seen as dangerous because of the banning of a story like that. What about my story? Am I seen as a bad influence?” Izu said. “Am I seen as something that should be shamed?”

Texas parents and politicians say they are protecting students with book bans. Many students, including Cameron Samuels, a senior at Seven Lakes High School in Katy ISD, aren’t buying it.

“It’s clear that these books address issues of race and LGBTQ identities, and that is the exact reason that certain people are seeking to remove these books from libraries and prohibit students from accessing them,” said Samuels, who helped with distribution efforts. “And these policies have dire consequences for us because they keep us struggling with our queer identities.”

Katy ISD students showed strong support at the events, Samuels said. But not all parents are happy, and some have even tried to enter the school to disturb student discussions on Texas’ book bans, they said.

1. I salute these kids and wish them the best of luck in fighting what is likely to be a long battle. At some point, there is going to be a very heavyhanded response from someone in authority, whether it be a principal, a law enforcement officer, or just some loudmouth (quite possibly an elected official) targeting them online. That will get ugly very quickly, and who knows what happens next. I just hope whoever is that first target has a good support system around them.

2. Whether as a result of that heavyhanded response or not, this fight is going to find its way into the courthouse sooner or later. If there is some litigation going on already, I confess I’ve missed it. But one way or another, some aspects of this will be decided by judges.

3. I hope all these kids will be registering to vote at their first opportunity, and will be sure to vote against everyone who has tried to take their books away from them, from their school board up to their legislators and governor. Let me say this one more time: Nothing is going to change until someone loses an election for their support of banning books.

It’s mostly about the gay books

Color me not surprised.

Greg Abbott in the 80s

While a Texas House committee chairman’s inquiry into schoolbooks has often been linked to new state laws limiting how teachers address slavery and racism, most of the literature he’s called into question deals with a wholly different subject: LGBTQ issues.

That has also been the focus of Gov. Greg Abbott’s recent demands of the Texas Education Agency to work with other statewide agencies to set standards to prevent schoolchildren from exposure to what he’s defined as “pornography or other inappropriate content” and to investigate any possible related crimes. The books that prompted such labels and backlash from parents at a handful of Texas school districts are written by LGBT authors and discuss LGBT identity and relationships.

Democrats have denounced the Republican efforts as politically motivated attacks meant to gin up support from their base that they say will ultimately result in censorship and harm students, especially those who are already marginalized.

It’s part of a trend of conservative-led fights across the country over how schools can teach about issues of race, particularly systemic racism, as well as sex and gender, blurring the already faint line between local and national politics.

Rep. Matt Krause, R-Fort Worth, chairman of the House General Investigating Committee, had given the districts until Friday to respond to his inquiry. Several reached by Hearst Newspapers — including Katy and Fort Bend in the Houston area and Northside and Spring Branch in the San Antonio area — said Thursday that they were still reviewing the request and/or did not expect to make the deadline.

The letter had asked districts whether they carried any books on a list of about 850 that included Pulitzer Prize winners and other acclaimed literature.

Krause, who has not responded to multiple requests for comment, has said the purpose of his request is to verify that the districts are in compliance with new laws passed this year.

[…]

Danika Ellis, who runs The Lesbrary, a blog about lesbian and bisexual books, reviewed the list of titles Krause ran by school districts. She found — as a Hearst Newspapers analysis also concluded — that more than 60 percent of the books had to do with matters related to LGBT topics. About 20 percent touched on transgender issues or featured a transgender character. At least 9 percent related to sex education.

That’s compared with just about 8 percent that relate to race and racism. The rest of the books were not as easily categorized but related to topics such as teen pregnancy, abortion, contraception, sexual assault and sexually transmitted diseases.

“This house bill is supposed to prevent ‘discomfort,’ but what about the discomfort of kids who experience racism or who never see themselves represented in the curriculum or the books on the shelves?” Ellis wrote on her blog. “What about the discomfort of queer kids who see that even mentioning people like them is categorized as inappropriate or obscene or even ‘pornography’?”

HB1525 was primarily meant to make adjustments to the major school finance bill, HB3, passed in 2019. But a last-minute amendment by Sen. Bryan Hughes, R-Mineola, inserted language that required school boards to develop a policy for the adoption of human sexuality curriculum and set new guidelines for boards to follow in approving the curriculum.

They now have to take into account the advice of local school health advisory councils, parent groups appointed by school boards that give recommendations. They also were already required to ensure any approved materials were “suitable for the subject and grade level for which the curriculum materials are intended” and “reviewed by academic experts.”

Hughes did not respond to a request for comment.

Rep. Mary González, D-Clint, who co-authored the bill and chairs the Texas House LGBT Caucus, said it “never had the breadth” that Krause is claiming it has.

“The SHAC was put into a school finance bill to continue to target sex education when we know research tells us the opposite: that medically accurate, age-appropriate sex education is really important to holistic development,” González said. “However, what Rep. Krause has been trying to do over the last few weeks is beyond sex education and beyond the SHAC’s work, and he is primarily doing this not out of concern for children but out of political advantage for his own attorney general race.”

See here and here for the background. As of Friday afternoon, Austin and Dallas ISDs had said they will not respond to Krause’s request; it’s my hope that more ISDs, including Houston, will follow suit. The Trib has two more stories about this publicity/campaign stunt by Krause, which you can read as you see fit. I hate giving the little twerp any more attention for this, but ignoring it doesn’t seem right, either.

Some years ago, I was having a discussion with a friend about then-Mayor Annise Parker’s victory in the 2009 election over Gene Locke. I was trying to figure out why Parker did better in the Republican City Council districts than Locke did, given that Locke had made some effort to woo Republican voters. My friend’s response was “they’re more racist than they are homophobic”, which I still think about from time to time. From the vantage point of today, maybe that’s not so clear anymore.

Let’s have us a book burning!

That’s where we’re headed.

Greg Abbott in the 80s

Gov. Greg Abbott told the Texas Education Agency on Wednesday to investigate criminal activity related to “the availability of pornography” in public schools, saying that the agency should refer such instances “for prosecution to the fullest extent of the law.”

It’s unclear why Abbott tasked the TEA to perform the investigation and not the state’s policing arm. The TEA does not employ law enforcement officers, according to state statute, and a spokesperson for the Texas Commission on Law Enforcement confirmed Wednesday that the education agency does not have any licensed peace officers.

Abbott’s request comes two days after he asked the agency, along with the Texas State Library and Archives Commission and the State Board of Education, to develop statewide standards preventing “obscene content in Texas public schools.

“While those standards are developed, Abbott wrote to the TEA in his letter Wednesday, “more immediate action is needed to protect Texas students” against that inappropriate content, which he said is “a clear violation” of state law.

[…]

Any civilian can also go to a prosecutor directly to provide what they consider evidence of a crime, but in most instances the prosecutors would then refer the case to a law enforcement agency to investigate independently before pursuing any legal action, according to Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association.

As for who could be prosecuted under the investigation that Abbott requested, Edmonds said it depends.

Under the state’s penal code, a person commits a crime if they knowingly exhibit or distribute harmful material to a minor, or display it in a reckless way where a minor is present. Harmful sexual material is defined as “patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors.” Most violations under that statute are a Class A misdemeanor, which can result in up to a year in jail and a fine of up to $4,000.

However, the penal code also states that a defense against prosecution is that the material was exhibited by a person “having scientific, educational, governmental, or other similar justification.”

“That’s going to be where the battle may be,” Edmonds said.

You will, I’m sure, be shocked to learn that the two books Abbott initially complained about both had LGBTQ themes and content. It’s just a matter of time before Ken Paxton launches a full-fledged investigation into library crimes, as one of the idiot Republican legislators from Tarrant County is asking for; Paxton has some catching up to do on this front, and you know he never misses a chance to run in front of a parade. And if you think I’m going overboard with the title of this post, well, you have some catching up to do, too. Now please, give me your hottest take about “cancel culture”. I can’t wait to hear it.

(The Bloom County strip embedded above can be seen in full, with a bit of historical context, here.)

Chick-Fil-A and the “heartbeat” lawsuits

I’d forgotten all about this.

A case that’s before the Texas Supreme Court this fall could have strong implications for the future of the state’s newly adopted abortion ban, the most prohibitive in the nation.

The suit relates to a 2019 law that, like the abortion law, was authored by state Sen. Bryan Hughes, R-Mineola.

Known as the “Save Chick-fil-A” law, it allows anyone to sue when they believe a governmental entity has taken “adverse actions” against a person or company based on its support for a religious organization, as Republican lawmakers believed the city of San Antonio did when excluding the fast-food restaurant from its airport.

Civilian enforcement is also the key to the new state law that effectively bans abortion, Senate Bill 8 — a provision that has so far allowed it to survive a legal challenge based on Roe v. Wade, the 1973 Supreme Court case establishing women’s right to abortions. At issue in both cases: Can a state law grant private citizens standing to sue?

“The standing issue in the case is essentially the same,” said Jason Steed, a Dallas-based appellate lawyer and court watcher who is not involved in the case. “That’s what’s interesting about it is that the court could decide that standing issue and whatever they decide about that issue would have direct implications for SB 8.”

[…]

The city council’s decision to ban the restaurant had animated conservatives who saw it as discrimination against the company because its owner had given money to Christian groups that oppose same-sex marriage.

Gov. Greg Abbott, surrounded by Republican lawmakers, each with a Chick-fil-A styrofoam cup in hand, signed Hughes’ bill in July 2019, and celebrated it as a victory for religious freedom.

The suit before the Texas Supreme Court was brought on Sept. 5, 2019, by five Chick-fil-A supporters who said they were harmed because they would have been customers of the restaurant had it opened in the city-owned airport.

Still, they note in the suit that the law does not require them to prove damages and purports to give standing to anyone who alleges a violation. They are seeking a court order to stop the city from excluding the fast-foot chain from this project and potential ones with the city in the future.

It’s unclear whether the company wants into the airport. In September 2020, San Antonio was forced to offer Chick-Fil-A its spot back as part of an agreement with the Federal Aviation Administration’s Office of Civil Rights under the Trump administration. The settlement helped the airport avoid penalties that could have jeopardized millions of dollars in funding from the agency.

But Chick-Fil-A declined, and the city has since given the spot to Whataburger, which is slated to open by next spring.

In August of 2020, the Fourth Court of Appeals in San Antonio sided with the city and reversed a lower court’s decision, ruling that the city had sovereign immunity, a legal principle that protects governments and their agencies from lawsuits.

See here, here, and here for some background. Ken Paxton filed a lawsuit in July of 2019, before the five busybodies filed theirs. The easy way out for SCOTx is to uphold the Fourth Court’s ruling, which would allow them to not address the question of standing, which as noted is at the center of SB8. The city of San Antonio argued that the plaintiffs did not have standing, and as of today there’s no adjudication on that matter. Sooner or later, one way or another, we’ll get some kind of answer to that.

Anti-gay Waco JP’s lawsuit tossed

Here’s a bit of good news.

A Travis County judge has thrown out McLennan County Justice of the Peace Dianne Hensley’s lawsuit against the state panel that sanctioned her in 2019 for refusing to perform same-sex weddings.

Judge Jan Soifer of Austin’s 459th State District Court listed a variety of reasons for dismissing the lawsuit. She ruled that the State Commission on Judicial Conduct has sovereign and statutory immunity from the claims and that Hensley failed to exhaust other legal remedies before filing her lawsuit.

[…]

Hensley, a justice of the peace for six years, officiates weddings between men and women but refuses to perform weddings for same-sex couples, saying it goes against her “Bible-believing” Christian conscience. Her lawsuit claims the agency violated state law by punishing her for actions she took in accordance with her religious beliefs.

In issuing its sanction against Hensley — a public warning — the commission said Hensley has refused to perform same-sex weddings since August 2016, despite the U.S. Supreme Court’s decision a year earlier that established constitutional rights to same-sex marriage.

The commission said Hensley is violating the Texas Code of Judicial Conduct by “casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.”

Hensley, who has said she is entitled to a “religious exemption,” filed her claims under the Texas Religious Freedom Restoration Act under the backing of the First Liberty Institute, a high-profile religious liberty law firm based in Plano.

Hensley has said that she, along with most all of the county’s JPs, stopped performing any weddings on legal advice from the county so as not to appear that those who chose not to perform same-sex weddings were discriminating against same-sex couples.

See here, here, and here for the background. Hensley had sought damages of $10,000 to make up for the money she was unable to make when she was not performing weddings because of her bigoted refusal to do them for same sex couples. Instead, she was ordered to pay court costs, which seems fitting to me.

Chron reporter Taylor Goldenstein, who wrote their story when Hensley filed her suit, has some more detail on this.

I don’t think I was aware of the federal lawsuit or its current status – I did suggest when Hensley sued that this might wind up in federal court – so that’s good to know. I’m certain she will appeal, so this isn’t over, but I suspect the Commission’s immunity from lawsuits will be hard for her to overcome. For now, let’s celebrate a bigot being told “No”.

Dragging Dutton

Richly deserved.

Rep. Harold Dutton

Houston area political action groups, activists, and unions gathered outside the office of Democratic state Rep. Harold Dutton Jr. on Tuesday to call for his resignation.

“It’s better if he goes now than in the next election,” said Alexis Melvin, president of the Houston-based nonprofit Transgender Foundation of America.

“We the Houston community are here to call for the resignation of Harold Dutton for his attacks on education but more specifically his attacks on transgender kids,” said Brandon Mack, an organizer with Black Lives Matter Houston.

The fury stems from a bill Dutton revived and voted in favor of last week, Senate Bill 29. The legislation would prohibit trans youth from playing on sports teams consistent with their gender identity.

[…]

The Tuesday press conference and protest was organized and attended by major political groups in the Houston area, including the Houston GLBT Political Caucus, Houston Federation of Teachers, Black Lives Matter Houston, Indivisible Houston, Texas Gulf Coast Area Labor Federation, and others.

“In the labor movement, we say an injury to one is an injury to all,” said Ashira Adwoa an organizer with the Houston Federation of Teachers. “When your civil rights are under attack, we will speak out with you.”

Adwoa said Dutton should instead focus on making housing more affordable in his district, and pull funding from charter schools to finance smaller class sizes and more wraparound services in public schools.

“This school year has been traumatizing to students, and we need to help them recover from this pandemic,” Adwoa said.

Hany Khalil, executive director of Texas Gulf Coast Area Labor Federation, described Dutton’s behavior as shameful.

“Dutton didn’t vote for SB 29 when it first came up in committee because he knew it was a terrible, hateful bill,” Khalil said. “He knew it would hurt vulnerable kids. And so he used it as a cudgel to go after legislators who stood up to him and his attempt to strip democratic power from our schools.”

“Trans kids deserve to be safe and loved, just like all of our kids,” Khalil continued. “And they’re not pawns — they’re not pawns to be sacrificed in a disgusting game of legislative chess.”

See here for the background. Rep. Dutton has served for a long time, and while we have seen our share of Houston-area Democratic State Reps get bounced in primaries, mostly during the Speaker Craddick era, it’s not an easy thing to do. None of the groups present were Dutton supporters before – certainly not in 2020, when Dutton had to win in a runoff against Jerry Davis – so the work of building a sufficiently large coalition to oust him still needs to be done. The starting energy is good, and the cause is just. There remains a long way to go.

One more thing:

“I am hopeful that he doesn’t just get one primary challenger but a whole team of them,” [Houston GLBT Political Caucus President Jovon Alfon B.] Tyler said.

With all due respect, I don’t think that’s the best path to beating Dutton. Find one strong candidate that everyone at that demonstration can line up behind, and go from there. The problem with a stampede is that you’ll have too many people expending effort and resources in competing directions. There’s a real risk the same energy wouldn’t carry over into a runoff, as one would likely be needed in such a scenario. Join forces and unite behind one champion, that’s my advice.

Zombie same sex employee lawsuit denied again

Shuffling along like the undead flesh eater that it is.

A Texas appellate court struck a challenge Thursday to Houston’s policy giving same-sex spouses of city employees the same benefits as different-sex spouses, saying that the city was immune from the case and that three major U.S. Supreme Courtrulings barred the claims.

A split Fourteenth Court of Appeals panel affirmed a state trial court’s February 2019 ruling against Jack Pidgeon and Larry Hicks, who challenged the benefits policy in an October 2014 suit.

“Because appellants’ attempt to prevent the city from offering employment benefits to married same-sex couples on the same terms and conditions as married different-sex couples cannot be reconciled with the requirements of the U.S. Constitution, we reject it,” Justice Margaret Poissant said in an opinion for the panel.

Mayor Sylvester Turner is not liable for the plaintiffs’ ultra vires claim, a claim used to target government officials for acting beyond their authority, because the 2013 directive issued by his predecessor was discretionary, the panel found.

The plaintiffs had even conceded that point when they argued the mayor and other officials spurned state marriage law “because it conflicts with their personal beliefs of what the U.S. Constitution or federal law requires,” the panel noted.

Further, Houston didn’t waive the immunity it typically has in ultra vires claims, according to the opinion. For a city to be a party to such a suit, the case must challenge a statute or ordinance, but the plaintiffs instead alleged violations of state law.

The plaintiffs also failed to establish that the directive was made without legal authority, according to the opinion.

Justice Poissant said the plaintiffs were wrongly trying to relitigate the U.S. Supreme Court’s 2015 ruling in Obergefell v. Hodges , which legalized same-sex marriage and made the Texas state laws at issue unconstitutional.

The panel also cited the high court’s 2017 ruling in Pavan v. Smith , which allowed same-sex parents the right to be listed on their children’s birth certificates, and its 2019 decision in Bostock v. Clayton County , which protected transgender individuals from discrimination.

The panel further denied the plaintiffs’ request for an injunction barring the city policy, saying their claim that the city used their tax dollars to “subsidize homosexual relationship,” which they believe is “immoral and sinful,” didn’t demonstrate imminent harm.

Justice Randy Wilson penned a partial dissent, saying the rest of the panel took the issue too far.

The trial court, Wilson said, had “paradoxically” dismissed the claims for lack of jurisdiction while essentially granting summary judgment on the merits. The appellate court should have addressed only the former and simply vacated the latter, he said.

See here for the previous update, and for the case information, including the opinion and concurrence and dissent from Justice Wilson. The original lawsuit was filed in 2013, for those keeping score at home. How much do you have to hate gay people to continue to pursue this eight years later? Jared Woodfill is their lawyer, if that helps you answer that question. Let us hope there is no further news to note on this.

More business pushback on more anti-LGBTQ+ bills

It’s like deja vu all over again.

Texas business leaders Monday condemned a slate of anti-LGBTQ bills winding through the Texas Legislature as harmful to Texans and as a threat to the state’s economy, which is still reeling from the recession that accompanied the coronavirus pandemic.

Tech companies in particular may be discouraged from doing business in Texas if the bills pass, according to Servando Esparza, executive director for the Texas and the southeast region of TechNet, a network of technology CEOs and executives.

“Any barriers to opportunity in Texas will make it harder for tech companies and other employers to convince other people to call this wonderful place home,” Esparza said. “We respectfully ask lawmakers not to do anything that will make it more challenging for talented, highly educated workers that companies need to hire.”

[…]

Texas Competes singled out 26 bills in the Texas Senate and House that they say would infringe on LGBTQ Texans’ rights, including the sports bans and restrictions on access to gender confirmation health care for transgender children.

“Businesses big and small and economies thrive on certainty,” said Jessica Shortall, managing director of Texas Competes. “What we’re faced with again this year is the uncertainty of whether discriminatory policies will rear their heads and cause all of the problems you’ve heard from our business speakers.”

See here for some background; one of the speakers noted the recent threat by the NCAA as part of the case against these nasty bills. You can see a copy of the letter here, and video of the press conference here. If all of this sounds depressingly familiar, it’s because it’s basically a rerun of the 2017 arguments against the bathroom bill. It’s just that this time around, there are multiple bad bills that threaten not just transgender Texans but the LGBTQ+ community as a whole. If you thought this might have gone away following the bad election cycle Republicans had in 2018, you were wrong.

Two things to note here. One is that the larger business community is not just unhappy about these radical anti-equality bills but also about voter suppression and attacks on renewable energy. I wouldn’t be surprised if there was uneasiness about permitless carry as well. The reason for all this is basically the same: All these things that are being attacked by the Republican-controlled Legislature are generally quite popular overall, and these companies want to be attractive to an educated, young, and diverse workforce that supports them even more. Throw in the spectacle of not just hurricanes and droughts but also winter storms that leave you without power and water for three days in super cold weather, and maybe our fabled bidness-friendly climate isn’t quite as attractive as it once was. What happens when current and prospective employees decide they don’t want to move to Texas, even if it has lower taxes and cheaper housing?

Which brings me to my second point, which you’ve heard me say many times. Talk is cheap. Action is what matters, and the only action these Republicans are going to understand is losing elections. (Which is one reason why they’re busy trying to rig the rules in their favor.) Businesses and business groups try to be non-partisan or bi-partisan by nature, and that has served them well for many years. But one party is pushing these bills that they hate, and one party is not. There are very few Republicans these days who don’t support these kinds of bills, and most of them are not in positions of power. At some point, either you actively work to vote people like that out of office, or you keep facing this same situation. The choice is clear.

LGBT certification for Houston city contractors

From last week.

Houston on Thursday became the first city in Texas to add a certification for LGBT-owned businesses in city contracting.

Mayor Sylvester Turner signed an executive order adding the certification during an event with the National LGBT Chamber of Commerce and its Houston affiliate. The Chamber will manage the certification process.

The move ultimately could help the city direct more contracts to LGBT-owned businesses, which make up a small portion of the region’s 130,000 companies.

Some 173 businesses belong to the Greater Houston LGBT Chamber of Commerce, and 70 businesses in Texas — including 38 in Houston — have been certified by the national chamber as LGBT-owned, though the organization said that number often grows after governments recognize them. The number in California tripled in one year after it added the certification.

Houston already has certifications for small businesses and businesses owned by minorities and women, as part of a remedial program intended to boost their participation in city contracting. It places goals for how much of certain contracts are directed toward those entities.

The new LGBT-owned business certification will not be included in those goals, but the executive order says the city will monitor their participation in contracts and produce an annual report about its findings.

It is possible goals could be added in the future. Marsha Murray, the director of the city’s Office of Business Opportunity, said government programs based on sex, like those based on race or national origin, are subject to strict constitutional scrutiny, which means the city has to demonstrate that remedial action is necessary before it can enact goals.

“The city’s new initiative is the beginning step to identify and monitor the level of participation by LGBT business enterprises in city contracting,” she said.

The order also adds the businesses to the city’s firm directory, which means prime contractors will be able to seek out LGBT subcontractors. The city also is launching an outreach campaign to educate LGBT business owners about resources from the Office of Business Opportunity, such as development counseling, legal assistance, and networking events.

This is ultimately about having a representative government. A government that represents the people has to reflect the people, not just in who gets to hold power but also in who gets to participate in the business of government. The only way to know if it’s doing that is to measure it, and this is the first step towards that.

Endorsement watch: The Susan Collins of Texas

Three things in life are certain: Death, taxes, and certain Chron endorsements.

Rep. Sarah Davis

The voters in state House District 134 — a swing district that covers all or parts of River Oaks, Bellaire and Meyerland and includes the Texas Medical Center — face a tough choice in the Nov. 3 election.

Five-term Republican incumbent Rep. Sarah Davis and Democratic challenger Ann Johnson are both well-qualified, skilled communicators whose many talents would serve them well in the Legislature.

We recommend Davis, 44, based on her experience, growth in office and independence.

A rare Texas Republican who supports abortion rights, she has moved from the tea party positions of her first 2010 victory to embrace the Affordable Care Act provisions of Medicaid expansion and coverage of pre-existing conditions as well as bucking her party on other issues.

[…]

Johnson has stressed her policy differences with Davis on immigration and gun control, where the incumbent is more in line with the GOP. Johnson has criticized Davis’ vote to let school districts arm teachers and to require universities to permit guns in campus parking lots and her sponsorship of a “show me your papers” bill to allow local law enforcement officials to ask about immigration status.

Those are not measures supported by the editorial board.

And yet. In the same way that the Chron endorsed Orlando Sanchez for Treasurer in four straight elections, so have they endorsed Sarah Davis consistently since 2012. Look, if you want to believe that Sarah Davis is a force for good for reproductive rights and LGBTQ equality and even expanding Medicaid, I can’t stop you. I happen to think that campus carry and “sanctuary cities” legislation are indelible stains on her record, but you do you. My opinion is that it’s better to maximize the odds of a Democratic House than to depend on a singular Republican savior. Your mileage may vary.

(Where the post title came from.)

SBOE updates sex ed curriculum

All things considered, especially the past history of the State Board of Education and its shenanigans, this could have been worse. It’s not great, but the potential for disaster was monumentally high.

The Texas State Board of Education gave preliminary approval this week to a sex education policy that includes teaching middle schoolers about birth control beyond abstinence — its first attempt to revise that policy since 1997.

In jam-packed meetings held Wednesday through Friday, the 15-member Republican-dominated board came one step closer to revising minimum standards for what Texas students learn about health and sex. It is expected to take a final vote in November.

The board voted to teach seventh and eighth grade students to “analyze the effectiveness and the risks and failure rates … of barrier protection and other contraceptive methods in the prevention of STDs, STIs and pregnancy,” in addition to the importance of abstinence. Currently, learning about birth control methods beyond abstinence is only a requirement in high school, where health education is an optional course.

But the board rejected proposals to teach middle school students about the importance of consent or teach any students to define gender identity and sexual orientation.

[…]

Over the last several months, panels of educators and medical professionals formulated recommendations to overhaul the health and sex education policies.

Board members clashed on several edits to those recommendations, including whether to include explicit reference to sexual orientation and gender identity. On Thursday and Friday, Ruben Cortez, a Brownsville Democrat, unsuccessfully proposed teaching middle schoolers and high schoolers to define sexual orientation and gender identity. He said the proposals would help LGBTQ students, who studies show have a higher rate of suicide attempts in part due to discrimination.

“One of my children this summer came out to us and the fact that she had to bottle that in for years thinking that we wouldn’t accept her,” he said, getting choked up as he spoke. “It’s difficult to imagine what other students who don’t live in a tolerant house would go through if we don’t insert language like this to help our students.”

Most Republicans on the board opposed his proposal, saying they would rather not include it in the minimum standards schools are required to teach. Instead, they said, they would rather let local school districts vote to add LGBTQ issues to their own health education policies, since state law gives them that flexibility. Matt Robinson, from Friendswood, was the sole Republican who voted with Democrats to add the language Friday.

“I would like to see this left up to being a community decision,” said Pat Hardy, a Fort Worth Republican.

“I don’t think at the high school level we can afford to be cryptic with regards to our youth,” said Marisa Perez-Diaz, a Converse Democrat. “Identity exists. We need to talk about it regardless of one’s sensitivity and discomfort.”

Most Republicans also opposed Cortez’s proposals Thursday and Friday to teach middle and high school students to “explain the importance of treating all people with dignity and respect regardless of their sexual orientation and gender identity.”

Instead, they approved teaching students to prevent “all forms of bullying and cyberbullying such as emotional, physical, social and sexual.” Schools can choose to include bullying as a result of sexual orientation and gender identity in those lessons, Republicans said.

On Wednesday night, board members battled over whether to teach sixth graders the definition of consent as it relates to physical intimacy and to “explain why all physical contact should be consensual.” Republicans said consent was a legally murky concept and instead prioritized students learning to be able to say no to unwanted approaches.

“In my opinion, refusal skills, personal boundaries, personal privacy covers this area at this age,” said Marty Rowley, an Amarillo Republican. “Eleven and 12 is too young in my opinion.”

I’d argue that stuff needs to be discussed from the time the kid is in preschool. Which, in a good preschool, it often is. It’s basic bodily autonomy, as in no one has the right to touch you if you don’t want them to. I don’t think it gets all that more complicated when you’re talking about touch in an explicitly sexual context. I can understand why people may be uncomfortable with that, but that’s just too bad. This was a significant missed opportunity.

Same thing with sexual orientation and gender identity. Perhaps what some people fail to understand is that the kids themselves are a lot more comfortable with that subject than many adults are. And kids who are gay or trans or nonbinary generally know who they are by middle school. We can’t choose to not engage with them on the subject. It’s alienating and insulting to them. Leaving it up to the locals may sound like a reasonable compromise, except that we know some school districts are hostile to LGBTQ students, and could not be trusted to set this material themselves. Some minimum level of standard is needed, and the SBOE whiffed on it. Basically, what was needed in both of these cases was honest, factual information, which would benefit all of the students. This change will not provide it to them, and that is a significant failure on the SBOE’s part.

The good news is the baby step away from abstinence-only education, which is a travesty with harmful repercussions. It’s not enough, but any movement in that direction is welcome. If we can take advantage of the opportunity we have this fall to elect some better members to the SBOE, maybe we can take more steps in that direction, and get on the right track with these other matters. The Chron and Reform Austin have more.

We still need that equality bill in the Lege

That SCOTUS ruling was huge, but there’s still a lot of work to be done.

LGBTQ Texans marked a major victory Monday when the U.S. Supreme Court ruled that federal civil rights law prevents employment discrimination on the basis of sexual orientation or gender identity. But in Texas, which did not have such workplace safeguards, LGBTQ lawmakers and advocates say they are far from done fighting for other essential protections.

Employment discrimination protections, they say, are necessary but not sufficient for advancing the equal treatment of LGBTQ Texans. Thanks to Monday’s ruling, Texans can no longer be fired for their sexual orientation or gender identity, but there is no state law explicitly preventing landlords from refusing to rent homes to LGBTQ Texans, for example.

Members of the Texas House LGBTQ Caucus are setting their sights on a comprehensive set of nondiscrimination protections that would codify the employment protections in state law, as well as guarantee LGBTQ Texans equal access to housing, health care and other public accomodations.

It will not be an easy bill to pass.

[…]

“We can’t look at this as being a partisan or political issue — it’s a human issue,” said Democratic state Rep. Jessica González, vice chair of the LGBTQ Caucus. “And in order to create a change in mind, you need to create a change in heart.”

González announced in May that she would spearhead the fight for a comprehensive nondiscrimination bill during the next regular legislative session in 2021 with Republican state Reps. Sarah Davis of West University Place and Todd Hunter of Corpus Christi.

“We rolled it out early to start the conversation,” González said.

In pushing for comprehensive nondiscrimination protections, LGBTQ lawmakers and their allies are also making an economic case. Big businesses like Amazon and Google have been major advocates for LGBTQ Texans over the last few years, telling lawmakers that to attract the best talent to their Texas offices, they need to guarantee workers equal rights in their communities.

“It is the business community’s voice that has been one of the loudest and strongest advocates for the LGBT community over the years,” said Tina Cannon, executive director of the Austin LGBT Chamber of Commerce.

Still, advocates have acknowledged that Monday’s ruling, while exhilirating the LGBTQ community, may also stir up opposition.

“I do think this is going to galvanize the folks who don’t want us to be at the same level,” Shelly Skeen, a senior attorney with the LGBTQ rights group Lambda Legal, said during a virtual briefing after Monday’s ruling. “So we got even more work to do, but I think we got some great momentum behind us.”

LGBTQ Caucus members have already made major progress since 2017, when LGBTQ advocates spent much of the legislative session playing defense as they fought back a controversial “bathroom bill” that would have limited transgender Texans’ access to certain public spaces. It was championed by Lt. Gov. Dan Patrick and hardline conservative groups.

See here for more on that SCOTUS ruling, and here for more on the equality bill. Dems taking the House is probably the only path to this bill making it out of the lower chamber, where it will never get a hearing in the Senate. The best we can do is get everyone on the record, and fight like hell to elect more Democratic Senators in 2022, as well as un-electing Dan Patrick and Ken Paxton, by far the two biggest obstacles to getting a real equality bill enacted. Yeah, I’ve got Paxton there ahead of Greg Abbott, who I could sort of maybe imagine going with the flow if he gets enough pressure from business and the wingnut fringe has been somewhat neutered. Electing some Democrats to the State Supreme Court would also help, and that we can do this year as well. The things to remember are 1) this is going to take more than one session; 2) the more elections we win, the closer we will be able to get; and 3) we cannot ease up, not even a little, because it will always be possible to go backwards. Eyes on the prize, and get people elected to do the job. That’s what it is going to take.

So let’s talk about HERO 2.0 again

Surely now is the time.

In November 2015, 61 percent of Houston voters rejected a city ordinance that would have barred employers from discriminating against people based on their sexual orientation and gender identity, a devastating blow for LGBTQ advocates in the nation’s fourth-largest city.

Four and a half years later, two-thirds of the conservative-majority U.S. Supreme Court extended federal workplace protections to gay and transgender employees across the entire country, with Justice Neil Gorsuch — a conservative jurist appointed by President Donald Trump — penning the majority opinion.

The ruling marks a stunning turnaround for LGBTQ Houstonians, who lacked such protections under local, state or federal law before Monday. Still, they remain subject to discrimination in public places, meaning a restaurant owner may no longer discriminate against gay and transgender employees but can refuse service to LGBTQ customers.

Houston’s anti-discrimination measure — branded by supporters as Houston’s Equal Rights Ordinance, or HERO, and by opponents as the Bathroom Ordinance — would have applied to employers, housing providers and places of public accommodation. It would have protected 13 classes on top of sexual orientation and gender identity: sex, race, color, ethnicity, national origin, age, religion, disability, pregnancy and genetic information, and family, marital or military status.

Supporters of the local anti-discrimination law say they will continue tentative plans to push for a second version of the measure in 2021, the next city election, to ensure the remaining classes and locations are covered. They also say a local ordinance would provide an added layer of protection for members of Houston’s LGBTQ community beyond the Supreme Court ruling.

“It is very clear, if you put it in the context of what’s happening in our country right now, that having de jure employment protections doesn’t mean that the problem is solved,” said Annise Parker, the former Houston mayor and first openly gay mayor of a major American city. “Because, in fact, we’ve had protections around race for a very long time and we still are trying to work hard to dismantle systemic racism. So, it is a big step forward, but there’s still much work to do.”

Houston’s LGBTQ advocacy groups have eyed the 2021 election since their first attempt ended in a resounding defeat. Monday’s court ruling will strengthen their case and their odds of success, contended Austin Davis Ruiz, communications director for the Houston GLBT Political Caucus.

“If you can no longer discriminate on the basis of sexual orientation or gender identity as it’s decided in this interpretation of the word ‘sex,’ then it should be able to be extended to all these other areas that still lack federal protection,” Ruiz said.

[…]

Alternatively, Houston City Council could pass an anti-discrimination ordinance if Mayor Sylvester Turner were to place it on a meeting agenda and the majority of the 17-person council approved it. Turner, who controls the City Council agenda, did not address that possibility in a statement Monday praising the Supreme Court ruling. Through a spokeswoman, the mayor declined to say whether he thinks the ordinance should go through City Council or the November ballot.

During last year’s mayoral campaign, Turner said he was working with his LGBTQ advisory board to find “opportunities to do more public education” on the issue, but stopped short of saying he would advocate for a ballot measure in 2021.

We were talking about this last November, during the Mayoral runoff. I argued at the time for waiting until 2022, in order to get a better turnout model, but the engagement and outreach strategy is what really matters. Certainly, this could be passed by Council, but there would almost certainly be another referendum to overturn it, so you may as well have the election on your own terms. And despite what happened in 2015, there’s no reason why it couldn’t pass this time. It’s mostly a matter of making sure that Democratic voters vote in favor of a position that is almost universally held by the Democratic politicians those voters vote for. There are a lot of ways this can be accomplished, but the one thing I’d call absolutely vital is organizing and preparing a message strategy for it ahead of time. There’s no better time than now to be doing that.

SCOTUS delivers a win for equality

Quite a pleasant surprise.

In a major victory for gay and transgender workers in Texas and nationwide, the U.S. Supreme Court ruled Monday that federal civil rights law prohibits employers from discriminating against workers on the basis of their sexual orientation or transgender identity.

Texas is among a majority of states that do not offer explicit protections for LGBTQ communities in employment, housing or public spaces, though some of the state’s biggest cities have passed some protections. And the ruling carries particular weight in a state where proposals to expand those protections have historically been dead on arrival at the GOP-dominated Texas Legislature.

Jason Smith, a Fort Worth employment attorney who represented Stacy Bailey, a Mansfield ISD art teacher who was put on leave after showing students a photo of her wife, called the far-reaching ruling a pleasant surprise because it “covers everybody in the rainbow.” He had not dared hope for such a comprehensive opinion, he said.

“I can’t tell you how many phone calls we’ve had at our law office from LGBTQ folks who we had to tell the courts were going to turn their case out,” Smith said.

Now, he said, “we can do something for them.”

[…]

Many federal courts, including those in and governing Texas, had ruled that Title VII did not protect workers from discrimination on the basis of sexual orientation.

The state’s first LGBTQ Caucus, founded in 2019, announced earlier this summer that it has bipartisan support for a comprehensive non-discrimination law for LGBTQ Texans. Long a legislative push from some Democrats, that proposal has never gone far at the Capitol in Austin, facing particular resistance from Lt. Gov. Dan Patrick and the socially conservative Texas Senate.

Now the fight moves to the state Capitol, where lawmakers said they will fight for similar protections in housing and other spheres. Wesley Story, a communications associate for Progress Texas, said it’s time “to expand those protections to other areas including education, housing, and health care.”

“Equal protection for LGBTQ employees is now the land of the land!” tweeted state Rep. Erin Zwiener, D-Driftwood and a member of the LGBTQ Caucus. “I’ve never been more happy to strike a piece of legislation off my bill list for next session.”

Zwiener added that she looks forward to fighting for other protections not covered by Monday’s ruling, including in housing and other areas.

As noted in that tweet, while this ruling offers protections at the workplace, it does not address things like housing. Plus, federal lawsuits are expensive and time-consuming, and thus limited as a way to redress discrimination complaints. That was one of the rationales behind local anti-discrimination ordinances, and the reason why a statewide non-discrimination law is still necessary. This was a big step forward, but it’s hardly the end of the road.

Let’s also be clear that the opponents of equality, once they are done wailing and gnashing their teeth, are going to set about doing everything they can to limit the effect of this ruling. They’re still trying to minimize the Obergefell ruling, so you can be sure this one will be in their sights as well. As long as the likes of Dan Patrick and Ken Paxton hold power, there will be danger. Celebrate the win, but don’t let your guard down. Slate and the Chron have more.

A bipartisan equality bill

I appreciate the effort, but we can’t expect too much to come of this.

Five Democratic and two Republican state legislators announced plans Wednesday to file a bill next legislative session that would bar discrimination against LGBTQ Texans in housing, employment and public spaces.

The bill, which has the early support of state Reps. Sarah Davis, R-West University Place, and Todd Hunter, R-Corpus Christi, would extend protections based on sexual orientation and gender identity. There are 21 states that already have enacted such policies.

“Quite frankly, we are already behind the curve on this issue,” Davis said. “Nondiscrimination is not just good for LGBTQ community, but it’s good for all Texans.”

Lawmakers rolled out the bill during a virtual news conference where they touted an economic study that found a statewide nondiscrimination policy would generate $738 million in state revenue and $531 million in local government revenue next biennium. It also would add 180,000 new jobs in technology and tourism by 2025, the study found. The benefits, the authors said, largely would come from Texas’ greater ability to attract talent and heightened opportunity for tourism and conventions.

“We should want to treat people fairly because it’s the right thing to do, whether it has economic effects or not,” said Ray Perryman, a Waco-based economist who led the study. “This shouldn’t be the reason to do it, but it is a very important aspect of it in today’s society, and there are very significant economic costs associated with discrimination.”

The legislation likely will face strong headwinds in the Republican-controlled Senate. Lt. Gov. Dan Patrick, who presides over the upper chamber, prominently opposed a similar measure that was rejected by Houston voters in 2015, and later backed the so-called bathroom bill opposed by LGBTQ advocates that would have required people to use facilities matching the gender identity on their birth certificates.

The lawmakers largely dismissed political concerns Wednesday, arguing instead that their early push for the bill — more than seven months before the session is slated to begin — heightens their odds of passing it.

“I think a lot of this is going to take talking to our colleagues and explaining the results of this study,” said Rep. Jessica González, D-Dallas, a member of the House LGBTQ Caucus and author of the bill. “It’s going to take a lot of groundwork.”

[…]

The bill faces good odds of passing the lower chamber, where Democrats have gained ground and some Republicans have moderated their positions, said Brandon Rottinghaus, a political science professor at the University of Houston. He was less bullish on the bill’s chances in the Senate.

“It’s a different animal on that side of the chamber,” Rottinghaus said. “You do all the political calculations and it’s a tall order to get it passed. But, in some ways it’s a marker: these members see the future of Texas as one where the economy needs to be put front and center, and if that theory can get some grip among the members, then there’s hope for it in the future. But as it is now, it’s a pretty tough sell.”

That’s really about all there is to it. This bill may pass the House, but if so then Dan Patrick will stick it in a shredder, have the shredder blown up by the bomb squad, and then have the debris shipped to Oklahoma. We ain’t getting a bill like this passed while he’s Lite Guv, and that’s even before we consider getting it signed and then having it reasonably enforced by the Attorney General. It’s nice that there are two House Republicans willing to sign on to this – no, really, that is important and could very well matter if we oust Patrick in 2022 but still have a Republican-controlled Senate – but it will take either more of them than that to get this passed, or fewer Republicans in the House overall. I don’t know who our next Speaker will be, but I like the odds of this passing with a Democrat appointing committee chairs than with pretty much any Republican that could inherit the gavel. Needless to say, one way of getting the requisite number of Dems in the House is to oust Sarah Davis, as her seat is high on the list of pickup possibilities. Todd Hunter’s HD32 is on that list as well, but farther down; if he loses in November, Dems have had a very, very good day.

Let’s be clear that lots of substantive bills take more than one session to get passed, so bringing this up now even without any assurance that it could get out of committee is the right call. Start talking about this now – the real benefits a true equality bill would bring, the ridiculous arguments that opponents will throw at it, and very importantly the potential legal pitfalls that the true wingnuts and their sympathetic judges will try to exploit – and we’ll be better positioned when the timing is better. I can’t say when that might be – elections have consequences, I’m told – but it’s best to be prepared.

Ken Paxton does Ken Paxton thing

Film at 11.

Best mugshot ever

Texas Attorney General Ken Paxton’s office is not defending a state agency that is being sued for punishing a judge who refuses to officiate gay marriages.

It’s the most recent in a handful of cases in which Paxton, a Republican, has stepped away from one of the basic requirements of his job because the state’s actions conflict with his views of the Constitution.

Just days after the 2015 Supreme Court decision legalizing same-sex marriage, Paxton issued a legal opinion arguing that Texas clerks and judges with religious objections could not be forced to officiate those marriages or process the paperwork. In the nonbinding opinion, Paxton, also pledged to “be a public voice for those standing in defense of their rights.”

That argument will be tested in Texas courts for the first time after Justice of the Peace Dianne Hensley of Waco sued the Commission on Judicial Conduct for issuing her a warning last year. Since 2015, the general practice in Texas has been that judges either perform all types of marriages or none, if they have religious objections to same-sex marriages. But Hensley argued she could continue officiating straight marriages while referring same-sex couples to others because of the conflict with her religious beliefs.

The attorney general would have been expected to represent the commission as part of his charge to defend state agencies, putting Paxton in the awkward position of arguing against his 2015 opinion.

Instead, the attorney general’s office is not representing the agency.

“We believe judges retain their right to religious liberty when they take the bench,” spokesman Marc Rylander said in a statement.

Jacqueline Habersham, interim executive director of the Judicial Commission, has so far acted as counsel for the commission in the case. Habersham declined to comment.

See here and here for the background. The Trib notes another dimension to this.

Paxton declined to defend a different state agency, the Texas Ethics Commission, in a lawsuit filed years ago by Empower Texans, a hardline conservative group that has been an important political ally to him. And he has opted not to defend state laws, like the Texas Advance Directives Act, when they conflict with his interpretation of the Constitution.

Hensley is represented in the case by the First Liberty Institute, a high-profile Plano-based religious liberty law firm with deep ties to Paxton’s office that reach back to the earliest days of his political career. Hensley’s lawyer, Jonathan Mitchell, is a former solicitor general of Texas. And Paxton and the First Liberty Institute have often been allies in religious liberty fights in Texas, collaborating on a lawsuit against the city of San Antonio after it banned Chick-fil-A from opening a location in its airport. Jeff Mateer, now Paxton’s top aide, worked as the firm’s general counsel before joining the attorney general’s office.

Kelly Shackelford, the group’s president and CEO, has endorsed Paxton and contributed to a legal defense fund Paxton has used to fight off a four-year-old criminal indictment for securities fraud.

Nothing ol’ Kenny won’t do to help his buddies. In this sense, it’s just as well that he’s peaced out of the litigation, because literally any alternate arrangement for the State Commission on Judicial Conduct, whether they represent themselves or hire an outside firm, would be better than having an attorney that’s biased against you as your advocate. The solution here is the same as it’s ever been – we need a better AG. We tried in 2018, we’ll need to finish the job in 2022. He’s not going to change, we have to swap him out.