Anti-gay state senator wants to outlaw domestic partner benefits in Texas

Posted on 02 Nov 2012 at 5:08pm

Dan Patrick

Here’s why you need to get out and vote on Tuesday if you haven’t already.

In the same week that Dallas County voted to offer health insurance vouchers to the domestic partners of employees, a tea party-backed state senator from Houston is seeking an opinion from the Texas attorney general about whether such benefits are legal under the state’s 2005 constitutional amendment banning same-sex marriage.

Republican Sen. Dan Patrick’s office wrote in a press release on Friday:

In 2005, the Texas Constitution was amended to clearly define marriage as between one man and one woman. The “Marriage Amendment” went on to prohibit government entities from creating or recognizing anything identical or similar to marriage. The Marriage Amendment was passed by an overwhelming majority of the Texas legislature and ratified by more than 75 percent of Texas voters.

However, government entities across the state are gradually recognizing and extending benefits to domestic partners including the cities of El Paso, Austin and Fort Worth. Recently, Pflugerville I.S.D. became the first school district to extend benefits.

“I am submitting this request to the Attorney General in order to clarify whether or not these entities are violating the constitution and circumventing the will of the people,” said Senator Patrick.

Other entities in Texas that offer DP benefits include the city of Dallas, which has had them since 2004, and Dallas County, which as I mentioned added them this week.

Ken Upton, a senior staff attorney for the LGBT civil rights group Lambda Legal, told Instant Tea that Patrick’s letter seeking an opinion from the AG’s office doesn’t surprise him.

“I was wondering when someone would do that,” Upton said. “It was just a question of when. Texas is too big of a state, and there are too many people who hate us.”

Upton said there have been similar challenges to domestic partner benefits in other states with constitutional amendments banning same-sex marriage, including Ohio and Michigan, with mixed results. But he said the issue could be decided by the U.S. Supreme Court in an Arizona case that Lambda Legal is handling, Diaz v. Brewer. Both the district court and the 9th U.S. Circuit Court of Appeals have ruled in Lambda Legal’s favor, but Republican Arizona Gov. Jan Brewer, who wants to strip DP benefits from state employees, appealed.

“Our position is if you decide that a benefit of employment is insuring your spouse, and then you turn around and say as a gay person, you don’t get that benefit because you can’t have a spouse, then you violate equal protection,” Upton said.  “We’ll know in November whether [the Supreme Court is] going to take that case.”

Upton said any opinion Sen. Patrick receives from Republican Attorney General Greg Abbott’s office would be advisory in nature. However, Upton said he suspects that the AG’s office — which has intervened in recent years to block gay divorces — could find a way of bringing a legal challenge to DP benefits in Texas. Upton said he doesn’t like the LGBT community’s chances in front of the conservative Texas Supreme Court, which could ultimately be charged with interpreting whether the marriage amendment bans DP benefits. But Upton said that from a legal standpoint, he’s less worried about the issue than he once was.

“I think the [U.S.] Supreme Court in Diaz could decide it once and for all,” he said. “The bottom line is this whole thing is so much farther long than it was three or four or five years ago. Time is on our side.”

Read Patrick’s press release and his letter seeking an opinion from the AG’s office below.

Sen. Patrick AG Request

Sen. Patrick AG Request 2

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