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July 29th, 2014:

Fourth Circuit Court of Appeals upholds marriage equality

That’s two federal appeals courts, to go along with however many federal district courts and state courts.

RedEquality

Virginia’s same-sex marriage ban was ruled unconstitutional on Monday in the first such decision by a federal appellate court in the South.

“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” Judge Henry F. Floyd wrote.

The 2-1 ruling applies throughout the circuit that also includes West Virginia, Maryland, and the Carolinas, where the attorneys general split Monday on what they’ll do next.

Virginians voted 57 percent to 43 percent in 2006 to amend their constitution to ban gay marriage. Virginia laws prohibit recognizing same-sex marriages performed in other states. Floyd said such measures “impermissibly infringe on its citizens’ fundamental right to marry.”

The 4th U.S. Circuit Court of Appeals in Richmond is the second federal appellate court to overturn gay marriage bans, and the first to affect the South, a region where the rising tide of rulings favoring marriage equality is testing concepts of states’ rights that have long held sway.

Gay marriage proponents have won more than 20 legal decisions around the country since the U.S. Supreme Court struck down part of the federal Defense of Marriage Act last year. Most are still under appeal. More than 70 cases have been filed in all 31 states that prohibit same-sex marriage. Nineteen states and the District of Columbia allow such marriages.

The U.S. Supreme Court could have at least five appellate decisions to consider if it takes up gay marriage again in its next term, beginning in October.

The 6th Circuit in Cincinnati will hear arguments on Aug. 6 for Ohio, Michigan, Kentucky and Tennessee. The 7th Circuit in Chicago is set for arguments on Aug. 26, and the 9th Circuit in San Francisco for Sept. 8. The 10th Circuit in Denver overturned Utah’s ban in June.

As we know, the Fifth Circuit is still waiting on Greg Abbott to get his act together. For all we know, we could have several more affirmations before they get around to it.

North Carolina’s top lawman, Roy Cooper, quickly announced that he’ll stop defending his state’s ban, saying it is “time to stop making arguments we will lose.” But a spokesman said South Carolina’s attorney general, Alan Wilson, sees no need to change course.

Maryland already allows same-sex marriages. West Virginia Attorney General Patrick Morrisey, for his part, said he’s reviewing the decision and won’t comment until it’s final.

The ruling came as Colorado’s attorney general, John Suthers, asked his state Supreme Court Monday to stop county clerks from issuing licenses to gay and lesbian couples. But North Carolina’s Cooper said his fellow attorneys general should give up the fight.

“In all these cases challenging state marriage laws, our office along with other attorneys general and state attorneys across the country have made about every legal argument imaginable,” Cooper said in a statement. “All the federal courts have rejected these arguments each and every time. So it’s time for the State of North Carolina to stop making them.”

Along those lines, here’s the latest missive from Equality Texas.

Despite prearrangement plans made last week, Attorney General Greg Abbott’s office this morning refused to accept over 5,200 petitions asking him to stop defending Texas’ unconstitutional restrictions on marriage.

Equality Texas and several same-sex couples and their families had planned to deliver over 5,200 petitions to Attorney General Greg Abbott urging that he and Governor Rick Perry drop their defense of the state’s hurtful and discriminatory ban on marriage for same-sex couples. Despite the plans prearranged last week in which a staff member would meet us in the lobby and take possession of the petitions, the Attorney General’s office said they would only accept the petitions if they were mailed via an acceptable ground carrier.

Not to be deterred, the families trucked the wagon down the street to a nearby UPS Store and the petitions will be delivered to the Attorney General’s office on Tuesday.

That would be today. I doubt it will have any effect, of course. Abbott may well still depend on the suckitude of the Fifth Circuit for a favorable ruling, he can’t cross his wingnut supporters, and not to put too fine a point on it, but he himself is firmly against equality. It would be nice to imagine otherwise, and it’s certainly worthwhile to put the pressure on him, but let’s keep this in perspective. TPM, dKos, and Texas Leftist have more.

More on the Denton fracking referendum

I think everyone agrees the Denton anti-fracking referendum will wind up in court if it passes. It’s just a question of how wired the courts will be for the plaintiffs.

Voters will decide whether the city will become the state’s first to ban hydraulic fracturing, or fracking – the method of oil and gas extraction that has led to a domestic energy boom. But passage of a ban would probably trigger another fracking fight: a legal clash over a city’s power to regulate for health and safety and the rights of mineral owners to develop their resources. The outcome could reshape Texas law at a time when drilling is causing tension in some of its urban areas.

“It’s going to be one of those first-time tests, and I don’t think there’s a clear answer out there in Texas law,” said Jim Bradbury, a Fort Worth-based lawyer who focuses on environmental and energy issues.

The Denton measure would not prohibit drilling outright; it would apply only to fracking, which involves blasting apart rock with millions of gallons of chemical-laced water hauled in by trucks. After gathering nearly 2,000 signatures on a petition calling for a ban on fracking, opponents forced the City Council to vote on it. Council members rejected the proposal last week, leaving the decision to voters.

Denton, a city of 121,000 with more than 270 gas wells scattered among its neighborhoods, is one of several cities that has tried to ban fracking. That includes towns in New York, whose highest court last month upheld local ordinances banning the practice. The state of Colorado has sued its cities that have banned fracking and is pushing back against ballot measures that would toughen regulations. The prospect of such a ban in Texas – a leading oil and natural gas producer — has put Denton in a bright spotlight, rankling industry leaders and the state”s Republican leadership.

“If one community after another continues to say ‘Not in my backyard,’ then before long, a tsunami of exclusion will jeopardize our freedom as a country profits as a corporate entity,” said Chris Faulkner, the chief executive of Breitling Energy in Dallas, one of many industry representatives who spoke at City Hall before the Council”s vote.

I fixed your quote for you, Chris. The debasement of the word “freedom” is one of the great travesties of the 21st century so far.

Though Texas courts have occasionally considered cities’ drilling regulations, they have yet to see a case of such size and scope, legal experts say.

Texas law says the state intends its mineral resources to be “fully and effectively exploited,” but courts have said the power is not absolute. The Railroad Commission has jurisdiction over all oil and gas wells in the state, with authority to adopt “all necessary rules for governing and regulating persons and their operations.” Local governments have the right to impose reasonable health and safety restrictions, and the Legislature has granted most Texas cities, including Denton, the power to “regulate exploration and development of mineral interests.”

The state has long regulated most aspects of drilling, including well integrity, pipeline safety, and air and water impact, while cities have typically controlled noise and authorized the location of wells or related facilities like compressor stations. Now, a key question is where fracking falls in that spectrum.

Tom Phillips, chief justice of the Texas Supreme Court from 1988 to 2004, said he would expect courts to side with the energy industry — by ruling that the ban unconstitutionally supersedes state law or that it makes gas beneath the city too difficult to tap and amounts to a taking.

Phillips, now a lawyer with the firm of Baker Botts, who was asked to review the proposal for the Texas Oil and Gas Association, said state law gave cities less stringent options for protecting health and safety at well sites, and that Denton “can’t just say no” to fracking.

Other legal experts acknowledge that state high courts tend to favor oil and gas interests, but say that Denton could make a compelling argument that a fracking ban would not wipe out all options to drill.

“To say that this is a slam dunk, it’s a taking, I think that’s painting with an overly broad brush,” said Terrence Welch, a lawyer who has helped write drilling ordinances in several Texas cities. “The property — the mineral estate isn’t left valueless. You can drill, but you just can’t frack.”

See here for the background. It’s hard to be optimistic about how the courts might rule if you’re a ban supporter, but I suppose anything is possible. And I’ll say again, if the Railroad Commission wasn’t such an utter lapdog for the industry and people in places like Denton had any reason to believe that true regulatory oversight with actual enforcement was in place, this referendum would not exist. There would be no need for it.

One more thing:

Jerry Patterson, Texas’ outgoing land commissioner, warned in a letter last week that the state would “pursue any available remedy to ensure the right to develop” those minerals.

George P. Bush, the Republican nominee in this year’s election to succeed Patterson, said he supported that stance. “We don’t need a patchwork approach to drilling regulations across the state,” he said. But John Cook, Bush’s Democratic opponent, disagreed, saying that “local communities need to have a say” in quality-of-life issues.

Know who you’re voting for this fall, people of Denton.

City smoking ban extended to parks and libraries

Who knew they weren’t already, right?

Houston public parks, golf courses and pools will be smoke-free zones come September, marking one of the most sweeping tobacco bans at city facilities.

Parks and Recreation Department Director Joe Turner announced the new policy at a City Council Quality of Life Committee meeting Wednesday, following an announcement by Library Director Rhea Lawson that the ban on smoking inside libraries will expand to the property outside.

The new policies will affect the more than 365 developed parks facilities, which include golf courses and pools, and 42 libraries across the city.

Both department heads said the expanded bans are driven by public health and concerns.

“It’s a welcome family-friendly environment, it’s a safer park experience and it gives us a cleaner facility,” Turner said.

The parks ban mirrors policies in at least 36 other Texas cities and seven of the largest U.S. metros.

[…]

A city ordinance already bans smoking within 25 feet of a public facility, places of employment, bars and restaurants and at outdoor sports arenas and stadiums. Those restrictions, all within the last decade, came with controversy, often drawing droves of people to testify at City Council meetings.

Wednesday’s bans came more quietly as both department heads have the ability to govern and change rules of conduct on their grounds without going through City Council.

Here’s the city’s press release on this. I joke about not having realized this, but I can attest that a lot of the people that congregate near the downtown library on Smith Street smoke. Perhaps this will change that. Regardless, I’m always in favor of less smoking.

Note, by the way, the utter lack of any controversy around this. Sure, that’s partly because this was an administrative decision, and partly because there isn’t really a constituency for smoking at parks and libraries like there was for smoking at bars and restaurants. But man, remember the fuss that all kicked up? The apocalyptic predictions? Well, eight years later Houston is a booming, nationally-recognized restaurant scene, and last I checked we still had bars and live music. In fact, the oft-cited Rudyard’s bar in Montrose is alive and well, as is The Next Door. I don’t remember the last time I heard any complaints about Houston’s smoking ban. As someone who remembers being forced by occasional circumstance to sit next to smokers on airplanes, I cannot begin to tell you how much nicer the world we live in now is. Hair Balls has more.

Yale Street Bridge replacement set to begin

And inevitably there’s an issue.

Time is running out for the historic Yale Street bridge over White Oak Bayou as its condition deteriorates and surrounding development places increasing demands on it.

Some in the Heights- area community believe more should be done to preserve the 1930s-era structure, which is listed on the National Register of Historic Places.

But state transportation engineers say it can’t handle the required loads.

The bridge, just south of Interstate 10, was teetering on closure in 2012 when Texas Department of Transportation engineers lowered its load limit – the maximum weight of a vehicle – to 3,000 pounds per axle. A large, loaded sport utility vehicle could exceed that limit, not to mention the delivery trucks becoming a more common sight as commercial development flourishes along Yale and nearby Washington Avenue.

The lowered weight limit concerned neighbors, who pressed for answers.

“What was agreed upon then was, ‘When we can make it happen, we need a new bridge,’ ” said City Councilwoman Ellen Cohen, who represents the area. “We have got to be able to accommodate the traffic.”

[…]

Construction of a replacement bridge is scheduled to begin in September 2016. Yet some are not convinced that this is necessary.

“I take the position that the bridge can stay and it has been improved,” said Kirk Farris, a local historic preservationist who has worked with TxDOT to preserve other bridges.

Farris, president of Art & Environmental Architecture Inc., and the Texas Historical Commission prepared the 2011 application that placed the Yale Street bridge on the National Register of Historic Places.

In the application, preservationists said the bridge “is one of a few remaining examples of bayou crossings constructed during the city’s street improvement bond program of the 1930s.”

The last update I had was last January, though I know there’s been action since then. Far as I can recall, this is the first time the subject of preservation has come up. I have to say, as someone who has driven over this bridge many times, I’m not clear on what the historic architectural features of it are. If it’s the exterior barriers, then surely something can be done to save at least a piece of them. If it’s something underneath the bridge, I gotta say, I’m not sure what the value of preservation is. I’d value a bridge that we can all feel comfortable will not collapse under the weight it’s now bearing. If there’s a sensible way to avoid demolition while making it safe, then sure, go for it. If not, well, I can’t say I’ll mourn the loss. I value preservation, but I’m not sure what the value of it is here. In any event, there’s a public meeting tonight at 6:30 at 7600 Washington Avenue to discuss the possibilities. That’s the place to be if you want to know more.