Texas marriage case fast-tracked by 5th Circuit

cleopatra-de-leon-and-nicole-dimetman

Cleopatra De Leon and Nicole Dimetman

The 5th Circuit Court of Appeals has agreed to fast-track its review of two  lawsuits challenging bans on legally recognizing same-sex marriages in Texas and Louisiana, according to numerous reports, including this one at Bilerico.com.

Cleopatra De Leon and Nicole Dimetman of Austin, one of two gay couples challenging the ban in Texas, asked Monday that the appellate court expedite the cases because Dimetman is pregnant with the couple’s second child and they want their marriage legally recognized before the child — due next March — is born. De Leon gave birth to their first child and Dimetman had to complete a second-parent adoption to be legally recognized as that child’s parent. Unless the couple’s 2009 Massachusetts wedding is recognized in Texas before the second child is born, only Dimetman will be automatically recognized as the child’s legal parent, forcing De Leon to go through the lengthy and expensive second-parent adoption process.

De Leon and Dimetman along with Victor Holmes and Mark Phariss of Plano are the second couple in the Texas case. The two have been together for about 14 years but are waiting for Texas to legally recognize same-sex marriage before tying the knot. U.S. District Court Judge Orlando Garcia ruled in February that the Texas gay marriage ban is unconstitutional.

In the second case being reviewed by the 5th Circuit, Robicheaux v. Caldwell, U.S. District Judge Martin Feldman on Sept. 3 upheld the Louisiana ban on same-sex marriage, the first federal judge to rule against marriage equality since the U.S. Supreme Court’s decision striking down portions of the federal Defense of Marriage Act in 2013.

Lambda Legal joined the case as council on Oct. 7.

Just three weeks after Feldman’s ruling, Judge Edward Rubin in Louisiana’s 15th Judicial District Court ruled, in the case Constanza and Brewer v. Caldwell, that the Louisiana marriage ban is unconstitutional.

So far, since the Windsor ruling last year, no federal appellate court has ruled in favor of same-sex marriage bans. On Monday, Oct. 6, the U.S. Supreme Court rejected appeals on seven cases from five states, leaving appellate decisions striking down bans from the 4th, 7th and 10th Circuit Courts in place. The 9th Circuit Court struck down bans in Idaho and Nevada the next day, and on Sunday, a federal judge in Alaska — which is part of the 9th Circuit — struck down that state’s same-sex marriage ban.

Appeals are also pending in the 6th and 11th Circuit Courts. Those two and the 5th Circuit are considered the most conservative in the country and the ones most likely to rule in favor of marriage bans.

—  Tammye Nash

Houston’s State Rep. Garnet Coleman applauds Prop. 8 decision

State Rep. Garnet Coleman

Rep. Garnet Coleman, D-Houston, took to his blog today to applaud yesterday’s decision by the United States Ninth Circuit Court of Appeals declaring Proposition 8  unconstitutional (Prop. 8, passed in 2008, prohibited marriage equality in California):

“Yesterday’s 9th Circuit decision, just like the decision in Lawrence v. Texas, is a stepping stone on the path to marriage equality for all. As Judge Stephen R. Reinhardt of the 9th Circuit Court of Appeals wrote in the opinion, ‘Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.’ The same holds true for the marriage equality ban in Texas. That is why I continue to fight for marriage equality and continue to file the repeal of the ban of same sex marriage. Denying gay couples the right to marry is unconstitutional and a blatant denial of human rights. “

Coleman has a long history of filing pro-LGBT legislation in the Texas House. Last year he introduced historic legislation that, had it passed, would have called for a state-wide vote to repeal the section of Texas’ constitution prohibiting same-sex marriage, so he’s no stranger to the battle for marriage equality.

Coleman is seeking re-election to his District 147 seat. He will face long-time local LGBT activist Ray Hill in the Democratic Primary. No republican candidate has filed for the seat.

Read Coleman’s full statement on his blog.

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“Defining Marriage: A Debate!” at U of H tomorrow

Dr. Jennifer Roback Morse

Dr. Jennifer Roback Morse

One day we will get to the point where an University inviting guests to debate marriage equality will be greeted with the same scorn that an on-campus debate on women’s suffrage or whether or not African-Americans are 3/5 of a person would engender, but that day is not today. Just in time for the expected U.S. Court of Appeals for the Ninth Circuit ruling on Prop. 8  tomorrow, Feb. 7, the Federalist Society and Outlaw at the University of Houston present “Defining Marriage: A Debate!” at noon in the Bates Law Building room 109.

Dr. Jennifer Roback Morse, founder of the Ruth Institute, a project of the National Organization for Marriage, will be on hand to defend the continued prohibition against marriage equality. Mitchell Katine, who served as local counsel in Lawrence v. Texas (the Supreme Court case declaring Texas’ law against “homosexual conduct” unconstitutional) will defend marriage as a civil right, constitutionally guaranteed by equal protection under the law.

As a bonus the first 70 attendees to arrive will receive a free Chick-Fil-A sandwich and waffle fries, because we like our civil rights debated with a side of irony.

After the jump get a sneak peak at the kind of keen logical arguments to be expected from Dr. Morse:

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Remembering John Lawrence, the man behind Lawrence v. Texas

Lawrence

John Lawrence and Tyrone Gardner

Metro Weekly reports that one-time Houstonian John Geddes Lawrence, the “Lawrence” in Lawrence v. Texas, passed away last month at the age of 68:

“In the facts underlying the Supreme Court case, Lawrence v. Texas, Lawrence and Tyron Garner were arrested under Texas’s Homosexual Conduct Law after police entered Lawrence’s home on Sept. 17, 1998, and saw them “engaging in a sexual act.” The couple challenged the law as unconstitutional”

I was 22 and living in Dallas in 2003 when the Supreme Court issued its opinion in Lawrence declaring Texas’ law against “homosexual conduct” unconstitutional. A group of over 100 people gathered in the parking lot of the Resource Center of Dallas as Dennis Coleman, then with Lambda Legal, read excerpts of the decision. I remember the exuberant electricity in the air, the crowd bubbling with joy and the relief of centuries of official oppression finally coming to an end. Similar get-togethers took place across the state, as an entire community breathing a collective sigh of relief.

That relief has turn to frustration over the years. Although the Supreme Court decision rendered Penal Code Section 21.06 unconstitutional, the law remains on the books, and efforts to remove it have met with significant resistance. During a hearing this spring on finally removing the unconstitutional law, Rep. Jose Aliseda, R – Pleasanton, lamented that repeal of the law would entail removing portions of the Health Code requiring that HIV education efforts include information that “homosexual conduct is not an acceptable lifestyle and is a criminal offense under Section 21.06, Penal Code.”

Before Lawrence several attempts were made to remove the law against “homosexual conduct.” The Texas legislature voted to remove it from the penal code as part of a complete rewrite of the code in 1971, but the measure was vetoed by Gov. Preston Smith. In 1973 the Legislature again undertook a rewrite of the code, keeping “homosexual conduct” a crime but making it a class C misdemeanor. In 1981 a U.S. District Court ruled in Baker v. Wade that the law was unconstitutional, but as that case was winding its way through an unusually torturous appeals process the Supreme Court ruled in Bowers v. Hardwick that a similar law in Georgia was constitutional, making the questions in Baker moot. Similarly, in the 90′s there was hope that Texas v. Morales might finally prevail in defeating the “homosexual conduct” prohibition, but the Texas Supreme Court decided that since, in their opinion, the law was rarely enforced, there was no reason for them to rule in the matter.

Lawrence’s legacy lives on in a scholarship named after him and Garner administered by the Houston GLBT Community Center. The scholarship “recognizes outstanding leadership shown by gay, lesbian, bisexual, and transgender Texas high school seniors and college
students by contributing to the cost of their continuing education. Selection is based upon character and need.” Tim Brookover, president of the community center, expressed sorrow at Lawrence’s passing “John was a hero, the community owes a great debt of gratitude to John and Tyrone for taking the case all the way to the Supreme Court,” said Brookover. “They could have easily allowed it to slip away, but they decided to stay and fight and that makes them heroes and role models.”

The application deadline for the John Lawrence/Tyrone Gardner Scholarship is March 2, 2012.

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What’s Shakin’ – Wings of Desire at MFAH, IRS to allow deductions for gender transition

Wings of Desire1. If you’re a fan of German films that are partially in French, the film oeuvre of Peter Faulk and sexy trapeze artists with existential angst then “Wings of Desire” is your kind of flick.  The 1987 Wim Wenders masterpiece tells the story of an Angel (Bruno Ganz) who, after watching humanity since the dawn of time, desires to become human so he can be with the woman he loves. “Wings of Desire” screens tonight at 7 pm at the Museum of Fine Art Houston (1001 Bissonnet).

2. Transgender Americans who undergo hormone therapy or receive gender realignment surgery may now be able to deduct the costs of those treatments on their taxes. According to GLAD, the Gay and Lesbian Advocates and Defenders, the IRS has issued an “action on decision” statement saying that the agency will acquiesce to an appeals court ruling allowing the deductions. GLAD cautions that medical deductions can still be audited and encourages anyone planning to deduct cost of transition medical expenses to rigorously document the medical necessity of treatments and consult with a tax professional when preparing return

3. Election day is tomorrow. If you’re one of the 58,345 people in Harris County who voted early, then good for you.  If not, you’ll want to visit HarrisVotes.org and find out where to go to cast your ballot.  Polls open at 7 am on Tuesday and close at 7 pm sharp.

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Judge to rule this week in Nikki Araguz case

Nikki Araguz

Transgender widow vows appeal if she loses case

JUAN A. LOZANO  |  Associated Press

WHARTON, Texas — The transgender widow of a Texas firefighter will likely learn next week whether his family’s request to nullify their marriage and strip her of any death benefits will be granted, a judge said Friday.

State District Judge Randy Clapp made the announcement after hearing arguments in a lawsuit filed by the family of firefighter Thomas Araguz III, who was killed while battling a blaze last year. The suit argues that his widow shouldn’t get any benefits because she was born a man and Texas doesn’t recognize same-sex marriage.

The widow, Nikki Araguz, said she had done everything medically and legally possible to show that she is female and was legally married under Texas law. She believes that she’s entitled to widow’s benefits.

“I believe the judge is going to rule in my favor,” Araguz said after the court hearing.

The lawsuit seeks control over death benefits and assets totaling more than $600,000, which the firefighter’s family wants to go to his two sons from a previous marriage. Voiding the marriage would prevent Nikki Araguz from receiving any insurance or death benefits or property the couple had together.

Thomas Araguz died while fighting a fire at an egg farm near Wharton, about 60 miles southwest of Houston, in July 2010. He was 30.

His mother, Simona Longoria, filed a lawsuit asking that her son’s marriage be voided. She and her family have said he learned of his wife’s gender history just prior to his death, and after he found out, he moved out of their home and planned to end the marriage.

But Nikki Araguz, 35, has insisted that her husband was aware she was born a man and that he fully supported her through the surgical process to become a woman. She underwent surgery two months after they were married in 2008.

Longoria’s attorney, Chad Ellis, argued that Texas law — specifically a 1999 appeals court ruling that stated chromosomes, not genitals, determine gender — supports his client’s efforts to void the marriage.

The ruling upheld a lower court’s decision that threw out a wrongful death lawsuit filed by a San Antonio woman, Christie Lee Cavazos Littleton, after her husband’s death. The court said that although Littleton had undergone a sex-change operation, she was actually a man, based on her original birth certificate, and therefore her marriage and wrongful death claim were invalid.

Ellis presented medical and school records that he said showed Nikki Araguz was born without female reproductive organs and that she presented herself as a male while growing up and going to school. He also said her birth certificate at the time of her marriage indicated she was a man.

“By law, two males cannot be married in this state,” Ellis told the judge.

Nikki Araguz, who was born in California, did not change her birth certificate to reflect she had become a female until after her husband’s death, said Edward Burwell, one of the attorneys for Thomas Araguz’s ex-wife, Heather Delgado, the mother of his two children.

But one of Nikki Araguz’s attorneys, Darrell Steidley, said that when his client got her marriage license, she presented the necessary legal documents to show she was a female. He also noted changes made in 2009 to the Texas Family Code that allowed people to present numerous alternatives to a birth certificate as the proof of identity needed to get a marriage license. That was an example, he argued, of the state trying to move away from the 1999 appeals court ruling.

The changes in 2009 allowed transgendered people to use proof of their sex change to get a marriage license. The Texas Legislature is currently considering a bill that would prohibit county and district clerks from using a court order recognizing a sex change as documentation to get married.

After the hearing, the firefighter’s family and attorneys for his ex-wife criticized plans by Nikki Araguz to star in a reality television dating show and implied she was only interested in money and fame that the case would bring her.

“That is absurd,” Nikki Araguz said in response. “I’m after my civil equality and the rights that I deserve as the wife of a fallen firefighter.”

If the judge rules against the firefighter’s family in their motion for a summary judgment, the case would then proceed to trial. Araguz said if the judge rules against her, she would appeal, all the way to the U.S. Supreme Court if necessary.

—  John Wright

Complaint: LGBT immigrants abused, neglected at detention centers run by Homeland Security

The National Immigration Justice Center has filed civil rights complaints on behalf of 13 LGBT immigrants who were allegedly abused and neglected at detention centers run by the U.S. Department of Homeland Security in nine states, including one in Houston. The Heartland Alliance’s NIJC filed the complaints today in a letter addressed to Homeland Security’s Office for Civil Rights and Civil Liberties, calling on the department to investigate and implement new policies.

The group has also launched a petition calling on the DHS and President Barack Obama to end the abuse of LGBT immigrants in detention.

The 13 complaints include allegations of sexual assault, denial of adequate medical care, long-term solitary confinement, discrimination and abuse, and ineffective complaints and appeals process. Below are a few examples from the letter, which you can download in its entirety here:

• [Juan] was sexually assaulted by two other detainees. Despite repeated requests for a transfer to another facility because he feared for his safety [Juan] was not transferred until three months after the incident, when ICE Headquarters intervened. In the meantime, the only “protection” that the Otero County Detention Center offered was placement in the “hole.” (Otero County Detention Center, New Mexico)

• [Delfino] was held in segregation for four months, justifying their decision on the basis that [Delfino] presented “effeminately.” Facility staff refused to provide [Delfino] a Bible and permitted him only one hour of recreation – in a cold nine- by-thirteen-foot cell – per day. (Houston Processing Center, Texas)

• [Monica] continues to be denied hormone therapy, despite her use of hormones for ten years prior to immigration detention, and her physical and psychological reliance on them. [Monica], now detained for over five months, told NIJC staff, “I can’t even look at myself in the mirror anymore,” due to returning facial and body hair and other distressing changes. [Monica], an asylum seeker who has suffered grave past abuse in Mexico, also received no treatment for her trauma- related depression. She attempted suicide in February 2011 – the facility put her in solitary confinement as punishment. (Santa Ana City Jail, California)

• [Alexis] was repeatedly called a “faggot” by guards, who also made jokes about her dying of AIDS. They singled her out for public searches in which they forced her to remove her outer clothing and mocked her exposed breasts. (Theo Lacy Facility, California)

—  John Wright

MASSACHUSETTS: NOM Files DOMA Amicus Brief With Federal Appeals Court

Joe. My. God.

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LCR’s response to Motion to Hold Appeals in Abeyance re: DADT

The Log Cabin Republicans have issued a response to “Motion to Hold Appeals in Abeyance.”

ARGUMENT

Although a bill to repeal the “Don’t Ask, Don’t Tell” statute, 10 U.S.C. §654, has been passed and signed by the President, this legislative “repeal” is not yet effective. It is undisputed, and the government’s motion acknowledges, that repeal will not take effect for 60 days following certification by three officials that several requirements have been met – a certification for which there is no deadline or expected timetable. The repeal also may not take effect at all if threatened Congressional action to “repeal the repeal” proceeds. In the meantime, Don’t Ask, Don’t Tell continues in full force. Homosexual Americans who wish to enlist in the armed forces may not do so openly; current homosexual servicemembers must continue to lie about their identity and serve under ongoing threat of investigation; and servicemembers identified as homosexual continue to be subject to discharge.

More good stuff in there, but touché, LCR, touché.




AMERICAblog Gay

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Texas Appeals Court Upholds Gay Divorce

TEXAS FLAG X390 (PHOTOS.COM) | ADVOCATE.COMThe appellate court rules that Texas attorney general Greg Abbott cannot block the divorce of two women who married out-of-state. 
Advocate.com: Daily News

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