Paxton, anti-trans forces win 1st round, but fight continues

UPDATE: On Tuesday Ken Paxton announced he has filed yet another lawsuit against the federal government, this time challenging Health and Human Services regulations protecting transgender people from discrimination in their medical care. See our InstanTEA blog post here.

FW judge’s ruling on trans students guidelines could send 4th Circuit case to SCOTUS

 

Lisa Keen | Keen News Service
KeenNewsService@gmail.com

 

Texas Attorney General Ken Paxton

Texas AG Ken Paxton

In a move that could increase attention on the U.S. Supreme Court, a federal judge on Sunday, Aug. 21, issued a temporary order blocking the Obama administration from taking any action against states that refuse to comply with its guidelines concerning treatment of transgender students in federally-funded schools.

The order, from Judge Reed O’Connor — a George W. Bush appointee — enables at least 23 states that have expressed opposition to the Obama administration guidelines issued in May to ignore those guidelines until the court can rule on the merits of lawsuits challenging them.

The guidelines, from the U.S. Department of Education and the Department of Justice, state that discrimination against transgender students violates federal law against sex discrimination and that schools failing to comply with the laws could lose their federal funding.

A White House spokesman reiterated Monday, Aug. 22, the administration’s contention that the guidelines were “certainly not a mandate” and characterized the lawsuit as an election year attempt to “play politics” with issues involving transgender students.

“[O]ur goal has been from the beginning to provide for the safety and security and dignity of students all across the country,” said John Earnest, press secretary for President Obama.

Lambda Legal and four other national legal groups working on LGBT issues expressed disappointment in Judge O’Connor’s injunction. They said it is likely to confuse school districts trying to help transgender students and goes against “years of clear legal precedent nationwide establishing that transgender students have the right to go to school without being singled out for discrimination.”

The groups said the injunction would have “no effect on the ability of other courts or lawyers representing transgender people to continue to rely on the federal government’s interpretations of Title IX or on prior decisions that have reached similar conclusions about the scope of federal sex discrimination laws.”

Officials with Resource Center, the LGBT community center in Dallas, on Monday issued a statement saying O’Conner’s ruling “is not the final word on the Obama administration’s efforts to provide civil rights protections for transgender Americans.

The statement continued, “The stay will likely be quickly appealed, first to the 5th Circuit Court of Appeals in New Orleans and ultimately to the U.S. Supreme Court. It’s also important to remember this is just a stay, and not the final ruling of a trial. With other cases in the legal pipeline, the rights of transgender Americans may end up being asserted and confirmed in another, higher court.

“The legal guidance the administration provided — rooted in their interpretation of Title VII of the Civil Rights Act and Title IX of the Education Code, as well as decades of case law, are legally sound” Resource Center’s statement continued. “The judge did not address that in his stay. Rather, he issued his decision based on the arcane process of federal rule-making. The Center believes that justice will prevail and the guidelines will eventually be upheld, but that is cold comfort to transgender students nationwide at the beginning of their school year. Nor does it offer any optimism to transgender people in the workplace, even though the judge did not immediately address the state of Texas and other plaintiff’s efforts to put a halt to the Obama administration’s guidance in that area.”

 

Big enough conflict?

But the injunction could have an effect on whether the U.S. Supreme Court agrees to take up the issue sooner rather than later.

Judge O’Connor’s decision in this preliminary matter contradicts a ruling of another federal court. And conflicts among federal courts make issues more likely to attract Supreme Court intervention.

The Fourth Circuit U.S. Court of Appeals ruled that Title IX of the Education Amendments Act of 1972, which prohibits discrimination based on sex by federally-funded educational institutions, prohibits discrimination based on gender identity.

Judge O’Connor for the U.S. District Court of Northern Texas said “the plain meaning of the term sex” does not include gender identity. Noting that the Supreme Court had granted a stay against the Fourth Circuit decision, O’Connor said a decision from the Supreme Court “may obviate the issues in this lawsuit.”

Judge O’Connor’s decision makes clear he thinks states opposing the Obama administration guidelines have a strong case. He said, “the plain meaning of the term sex” in Title IX “meant the biological and anatomical differences between male and female students as determined at their birth.” The guidelines, therefore, are “contrary to law.”

In the preliminary ruling, O’Connor said the guidelines pose a sufficient level of threat to the statutes and constitutions of plaintiff states to demonstrate “a threat of irreparable harm” that warrants a temporary injunction.

Starting in 2010, Obama administration agencies began interpreting federal laws barring discrimination on the basis of “sex” to include “gender identity.” That meant laws prohibiting discrimination based on sex provided some protection for people whose gender identity is different from that stated on their birth certificate. In May, the departments of Education and Justice distributed a letter with “guidelines,” saying discrimination against such transgender students violates federal laws and that schools failing to comply with the laws could lose their federal funding.

The letter, said O’Connor, “provides not only must [states] permit individuals to use the [school restrooms and facilities] consistent with their gender identity,” but stipulates that alternative accommodations are unacceptable.

Thirteen states filed the lawsuit, Texas v. U.S., to argue that Congress intended “sex” to refer “only to one’s biological sex, as male or female.” Those states also include Alabama, Arizona, Georgia, Kentucky, Louisiana, Maine, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin.

Ten other states — Arkansas, Kansas, Michigan, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, and Wyoming — filed a similar lawsuit in a federal court in Nebraska.

In granting the injunction, Judge O’Connor said the Obama administration’s guidelines are “clearly designed to target” plaintiff states with “legal consequences” if the states fail to follow the guidelines.

The Obama administration’s guidelines and actions, said O’Connor, “indicate that [states] jeopardize their federal education funding by choosing not to comply” with the guidelines. Thus, he said, those guidelines are both “legislative and substantive” and that the public should have been given an opportunity to comment on those guidelines.

“The information before the Court,” said O’Connor, “demonstrates [the Obama administration agencies] have ‘drawn a line in the sand’ in that they have concluded [states] must abide by the guidelines, without exception, or they are in breach of their Title IX obligations.”

“Permitting the definition of sex to be defined [as the Obama administration has stated] would allow [the administration] to ‘create de facto new regulation’ by agency action without complying with the proper procedures.”

At issue are two federal laws that prohibit discrimination based on sex: Title VII of the Civil Rights Act, which covers employment, and Title IX of the Education Amendments Act, which covers educational institutions.

A brief filed by five pro-LGBT legal groups argued that federal appeals courts governing many of the states opposing the Obama guidelines have already ruled that sex discrimination includes discrimination against transgender people.

The groups include Lambda Legal, the ACLU, the National Center for Lesbian Rights, GLBTQ Legal Advocates & Defenders (formerly known as GLAD), and the Transgender Law Center.

Jon Davidson, national legal director for Lambda Legal, said he does not believe O’Connor’s ruling will increase the probability that the Supreme Court will accept the Fourth Circuit case. He said “a large number of issues” in the Texas v. U.S. case “go beyond what is at issue in the [Fourth Circuit] appeal, such as whether the states, state and local agencies, and state officials that brought the suit were sufficiently harmed” by the guidelines.

“Granting review in [the Fourth Circuit case, Gloucester v. Grimm] wouldn’t resolve all those issues,” said Davidson, “so I don’t think the preliminary injunction in Texas v. U.S. puts pressure on the Supreme Court to hear the Gloucester case.”

Shannon Minter, NCLR’s national legal director, said he thinks O’Connor’s injunction will likely be stayed, noting that, in discussing the “plain meaning” of “sex” in federal law, O’Connor “completely disregards” Price Waterhouse. In that 1989 decision, a majority of the U.S. Supreme Court ruled that Title VII’s prohibition of discrimination because of “sex” include discrimination against an employee based on expectations for an employee’s appearance and behavior based on their biological sex. (Notably, Justice Anthony Kennedy dissented.)

“This is a political case brought to make a political point,” said Minter. “The states don’t have any actual injury. They are just expressing their disagreement with the department’s view of the law, but that abstract disagreement is not a valid basis for a federal lawsuit. This is political posturing at the expense of a small group of vulnerable children.”

The Texas Tribune noted that Judge O’Connor issued a temporary injunction in March of last year to block enforcement of an Obama administration interpretation of the Family and Medical Leave Act that required states to provide to same-sex married couples the same benefits it provides to opposite-sex married couples. Texas Attorney General Ken Paxton withdrew that lawsuit after the U.S. Supreme Court ruled in June of last year that state bans on marriage licenses for same-sex couples was unconstitutional.

© 2016 by Keen News Service

 

 

—  Tammye Nash

Paxton asks to be excused from contempt of court hearing

Ken Paxton

Attorney General Ken Paxton

Attorney General Ken Paxton asked that he and interim commissioner of Texas Department of State Health Services Kirk Cole be excused from a contempt of court hearing on Wednesday, Aug. 12.

The order to appear was issued by U.S. District Judge Orlando Garcia because Cole and Paxton refused to recognize a same-sex marriage for purposes of a death certificate. Their refusal defies Garcia’s marriage-equality ruling that declared the Texas marriage amendment unconstitutional.

Garcia ordered the state recognize the marriage of John and James Stone-Hoskins. James died earlier this year before the Supreme Court ruling. But Garcia’s ruling was made in February 2014 and was affirmed by the Fifth District Court of Appeals in July 2015.

Although Garcia ordered the state to reissue the death certificate immediately, it took Cole’s office two days to comply.

Cole and Paxton had until today to respond to the court with any written defense. Instead, they asked to be excused from appearing. They also asked the judge to rule by 3 p.m. so they’d have time to appeal.

I’m sure Garcia will respond to that request “immediately.”

—  David Taffet

Attorney General Ken Paxton should resign

James Russell columnIn the seven months that Ken Paxton has served as Texas’ top law enforcement officer, he has slammed the federal government for its immigration policies, the Environmental Protection Agency for its environmental regulations, the Supreme Court for its rulings upholding the Affordable Care Act and legalizing marriage equality nationwide, defended the state’s stringent anti-abortion law and praised in broad terms further deregulation of the Second Amendment.

To be fair, as Texas Attorney General, Paxton’s office must defend the state court lawsuits, including those filed by his predecessor, now-Gov. Greg Abbott. Just like his predecessor he also has ambitions for higher office. Also like Abbott, his statements read like a fundraising letter. While it is clear he inherited a politicized office from Abbott, Paxton has recently done the office nor taxpayers NO additional favors.

Paxton is already under investigation by a Collin County grand jury for violating state securities law, an admission he made freely and then paid a $1,000 fine for. Under state law, it is illegal for an attorney to accept client commissions without registering first with the state securities board. Paxton not only broke the law but also broke a law he helped pass a state legislator.

Despite this revelation on the campaign trail he defeated two Republican challengers, former Rep. Dan Branch and former Railroad Commissioner Barry Smitherman. In the general election he defeated Democrat opponent Sam Houston, a Houston-area attorney, in a landslide. Of course, in both instances he was boosted by an energized grassroots and the support of wealthy Tea Party backers. They encouraged, or, more likely were encouraged by, his hard-line rhetoric on any number of issues. (Who wrote the talking points remains the question.)

Regardless of what he may actually believe, when looking for a quick political ascendency, look no further then the Texas GOP grassroots and their wealthy backers for advice. From state representative to one-term state senator to the state’s top law enforcement office,he got what he wanted.

Sadly Paxton’s carelessness, irresponsibility and smugness did not end with an admission or a fine, much less at the door of his private practice. He has also taken those traits to his taxpayer-funded office.

Following Friday’s U.S. Supreme Court ruling in Obergefell v. Hodges legalizing same-sex marriage nationwide, his office issued the requisite statement denouncing the decision. He also predictably, following April’s arguments, released a statement defending the state’s marriage ban.

Despite it being out of his responsibility, he then issued an opinion permitting county clerks and other government officials to decline to issue marriage licenses to same-sex couples if it violates their religious beliefs. While responsibly acknowledging clerks may be held liable, he sealed the fundraising envelope when he offered pro bono legal defense to any clerk mired in litigation for the decision. Religious liberty is an inherent right extended to all individuals, including those who genuinely oppose or support same-sex marriage for those reasons.

Even if you disagree politically or morally, issuing a marriage license does not mean you are sanctioning it. You cannot flout federal law.

Sadly that’s not what he told county clerks and potential donors across the state.

Between his politicization of his office and clear disregard for the law as represented by the pending criminal probe and irresponsible opinion on marriage equality, it has become clear Paxton is unfit for office. But in using Paxton’s logic, I can only conclude two things: breaking the law doesn’t violate his religious convictions, but resigning does. Whether or not a criminal indictment decides his professional fate in spite of any religious convictions, however, is an entirely different matter.

—  James Russell

Paxton bemoans the horror of marriage equality, predicts wrack and ruin

Texas Attorney General Ken Paxton

Texas Attorney General Ken Paxton

Less than 24 hours after insisting that Texas county clerks needed to get his approval to issue marriage licenses to same-sex couples if the U.S. Supreme Court issued a pro-marriage-equality ruling today (Friday, June 26) — which the court did, shortly after 9 a.m. CST — Texas Attorney General Ken Paxton issued a statement calling the ruling “an assault on the actual text of the U.S. Constitution” and predicting widespread death and destruction — OK, really he just said it will dilute marriage as a societal institution and endanger religious liberty.

If we had even a smidgen of belief that Paxton has actually read the U.S. Constitution, or even the Texas Constitution, we might be more inclined to pay attention. But …..

Anyway. Here’s his statement in its entirety. If you have a weak. stomach, make sure you haven’t just eaten something when you read it:

“Today’s ruling by five Justices of the U.S. Supreme Court marks a radical departure from countless generations of societal law and tradition. The impact of this opinion on our society and the familial fabric of our nation will be profound. Far from a victory for anyone, this is instead a dilution of marriage as a societal institution.

“What is most disturbing is the extent to which this opinion is yet another assault on the actual text of the U.S. Constitution and the rule of law itself. Just as Roe v. Wade ripped from the hands of the American people the issue of life and placed it in the judge-made ‘penumbras’ of the Constitution, so has this opinion made clear that our governing document — the protector of our liberties through representative government — can be molded to mean anything by unelected judges.

“But no court, no law, no rule, and no words will change the simple truth that marriage is the union of one man and one woman. Nothing will change the importance of a mother and a father to the raising of a child. And nothing will change our collective resolve that all Americans should be able to exercise their faith in their daily lives without infringement and harassment.

“We start by recognizing the primacy and importance of our first freedom — religious liberty. The truth is that the debate over the issue of marriage has increasingly devolved into personal and economic aggression against people of faith who have sought to live their lives consistent with their sincerely-held religious beliefs about marriage. In numerous incidents trumpeted and celebrated by a sympathetic media, progressives advocating the anti-traditional marriage agenda have used this issue to publicly mock, deride and intimidate devout individuals for daring to believe differently than they do. This ruling will likely only embolden those who seek to punish people who take personal, moral stands based upon their conscience and the teachings of their religion.

“It is not acceptable that people of faith be exposed to such abuse. The First Amendment to the U.S. Constitution protects our religious liberty and shields people of faith from such persecution, but those aspects of its protections have been denigrated by radicals, echoed by the media and an increasingly-activist judiciary. Consistent with existing federal and state Religious Freedom Restoration Acts that should already protect religious liberty and prevent discrimination based on religion, we must work to ensure that the guarantees of the First Amendment, protecting freedom of religion, and its corollary freedom of conscience, are secure for all Americans.

“Our guiding principle should be to protect people who want to live, work and raise their families in accordance with their religious faith. We should ensure that people and businesses are not discriminated against by state and local governments based on a person’s religious beliefs, including discrimination against people of faith in the distribution of grants, licenses, certification or accreditation; we should prevent harassing lawsuits against people of faith, their businesses and religious organizations; we should protect non-profits and churches from state and local taxes if the federal government penalizes them by removing their 501(c)(3) status; and we should protect religious adoption and foster care organizations and the children and families they serve. Shortly, my office will be addressing questions about the religious liberties of clerks of court and justices of the peace.

“Displays of hate and intolerance against people of faith should be denounced by all people of good will and spark concern among anyone who believes in religious liberty and freedom for all.

“Despite this decision, I still have faith in America and the American people. We must be vigilant about our freedom and must use the democratic process to make sure America lives up to its promise as a land of freedom, religious tolerance and hope.”

 

—  Tammye Nash

AG Ken Paxton: wait for my blessing before you issue marriage licenses

Ken-Paxton

Attorney General Ken Paxton

Texas Attorney General Ken Paxton released a statement today (Thursday, June 25)  ahead of a pending Supreme Court decision on marriage equality urging county officials to wait for a legal decision from his office before issuing marriage licenses to same-sex couples.

Citing the state’s law banning same-sex marriage, Paxton recommends “that all County Clerks and Justices of the Peace wait for direction and clarity from this office about the meaning of the Court’s opinion and the rights of Texans under the law. If the Court [disagrees with the state], prudence dictates we reflect on precisely what the Court says, what it means, and how to proceed consistent with the rule of law.”

The Supreme Court’s decision is widely anticipated to come down tomorrow (Friday, June 26), the anniversary of the Lawrence and Windsor decisions. If not tomorrow, the decision will be handed down Monday, June 29.

For the record: Paxton has no real say in this, per state code. And legal experts have told Dallas Voice that public officials who defy a Supreme Court ruling in favor of marriage equality can be held personally liable for doing so.

And while we’re on the subject of flouting the law, the state’s top law enforcement officer has admitted to and been fined for violating state securities law. He is now under investigation by a Collin County grand jury.

Laws be damned.

—  James Russell

AG Holder says DOJ will file briefs with SCOTUS supporting equality

Screen shot 2015-01-16 at 4.42.32 PM

U.S. Attorney General Eric Holder

U.S. Attorney General Eric Holder has issued this statement regarding the U.S. Supreme Court’s decision to hear cases on marriage equality and the Justice Department’s intention to file “friend of the court” briefs in support of marriage equality:

“After the Justice Department’s decision not to defend the constitutionality of Section 3 of the Defense of Marriage Act, the Supreme Court sent a powerful message that Americans in same-sex marriages are entitled to equal protection and equal treatment under the law. This landmark decision marked a historic step toward equality for all American families.

“The Supreme Court has announced that it will soon hear several cases raising core questions concerning the constitutionality of same-sex marriages. As these cases proceed, the Department of Justice will remain committed to ensuring that the benefits of marriage are available as broadly as possible. And we will keep striving to secure equal treatment for all members of society — regardless of sexual orientation.

“As such, we expect to file a ‘friend of the court’ brief in these cases that will urge the Supreme Court to make marriage equality a reality for all Americans. It is time for our nation to take another critical step forward to ensure the fundamental equality of all Americans — no matter who they are, where they come from, or whom they love.”

—  Tammye Nash

UPDATED: Human Rights Campaign praises outgoing AG Eric Holder

eric holder.smallFollowing reports that United States Attorney General Eric Holder will announce his resignation today, the Human Rights Campaign released a statement praising him while calling for President Obama to nominate an out LGBT cabinet member.

“Some Attorneys General wait for history, others make history happen. Attorney General Holder made history for the LGBT community,” said Chad Griffin, president of HRC. “He was our Robert F. Kennedy, lightening the burden of every American who faces legal discrimination and social oppression. We owe him a profound debt of gratitude for his legacy of advocacy and service.”

“The President has expressed a commitment to appointing a cabinet that reflects the full diversity of the American people, and there are many richly-qualified candidates available to serve as the first openly-LGBT cabinet secretary. It would be a natural extension of this administration’s enduring commitment to equality to send a message of visibility and inclusion by nominating such a candidate to serve in this historic role,” Griffin added.

You can read the full statement here.

According to NPR, the nation’s first black attorney general is one of the longest-serving Obama appointees and “ranks as the fourth longest tenured AG in history.”

Holder is well-known for refusing to defend DOMA and suing Texas over its voter ID law.

He plans to serve until a successor is nominated and approved by the Senate.

Check out Instant Tea throughout the day as details come in.

—  James Russell

Holder: DOJ will file brief in favor of same-sex marriage

eric holder.small

U.S. Attorney General Eric Holder

U.S. Attorney General Eric Holder told ABC News’ Pierre Thomas on Monday that the Justice Department will be filing a brief in the Utah same-sex marriage case urging the U.S. Supreme Court to uphold a lower-court ruling and block states from banning same-sex marriage.

District Judge Robert J. Shelby ruled last December that Utah’s same-sex marriage ban is unconstitutional. A three-judge panel of the 10th Circuit Court of Appeals upheld the ruling last month, and Utah Attorney General Sean Reyes announced that instead of asking the full 10th Circuit Court to review the case, he would appeal directly to the U.S. Supreme Court.

Holder said that filing the brief would be “consistent with the actions we have taken over the past couple of years,” in which the Justice Department has refused to defend the federal Defense of Marriage Act. Holder said that decision was “vindicated by the Supreme Court,” which ruled last year in Windsor vs. United States that the sections of DOMA allowing the federal government not to recognize same-sex marriages performed in jurisdictions that recognize such marriages are unconstitutional.

Holder told Thomas that he believes banning same-sex marriage is unconstitutional and that such bans cannot survive the standard of heightened scrutiny. He called the fight for LGBT rights “a defining civil rights challenge of our time,” and that LGBT people are waiting for an “unequivocal declaration that separate is inherently unequal.”

 

—  Tammye Nash

Dan Branch vows to defend state’s right to trample on rights of women, gays

branchdan

State Rep. Dan Branch speaks at a Log Cabin Republicans meeting in Dallas in 2008. But don’t expect Branch to address the gay GOP group again now that he’s running for statewide office. (John Wright/Dallas Voice)

Republican State Rep. Dan Branch, who represents much of Dallas’ Oak Lawn gayborhood in the Texas House, vowed to defend the state’s ban on same-sex marriage as he kicked off his campaign for attorney general on Tuesday.

“Whether defending our First Amendment freedoms, the Second Amendment right to bear arms or the 10th Amendment’s reservation of power to the states, I will exhaust all available remedies to protect Texas from attacks on our freedoms,” Branch said. “When our federal government fails to protect our borders or fulfill its commitment of emergency relief to communities like West, I won’t stop until the federal bureaucrats are held accountable. And I will fight for our state’s right to protect the unborn and our right to define marriage as between one man and one woman.”

In other words, Branch wants to protect Texas’ “right” to trample on the freedoms of women and same-sex couples.

—  John Wright

Log Cabin calls for immediate end to DADT, says keeping policy in place during repeal is ‘absurd’

Associated Press

SAN FRANCISCO — Gay rights advocates on Monday filed a challenge to a request by the Obama administration to keep the repealed “don’t ask, don’t tell” policy in place while the Pentagon prepares for an end to the ban on allowing gays to serve openly in the military.

In a brief filed in the 9th U.S. Circuit Court of Appeals in San Francisco, lawyers for gay political group Log Cabin Republicans said keeping the policy in place was “absurd.”

At issue is the constitutionality of Congress allowing the policy to stay in effect to give the Pentagon time to train troops and take other steps outlined in December when lawmakers repealed the 1993 law that put the ban in place. Under the new policy, the restrictions remain until the Pentagon certifies that the change won’t damage combat readiness.

The repeal came several months after a federal district judge issued an injunction barring enforcement of “don’t ask, don’t tell,” declaring in September that the policy was unconstitutional.

The Obama administration request to keep the policy in place was made in its brief challenging the injunction. Dan Woods, who is representing the Log Cabin Republicans, replied in the brief filed Monday.

“Even though a judge found this to be unconstitutional and the administration is not disagreeing with that, they are still investigating and able to discharge people,” he said.

Earlier this year, the administration said it would no longer defend the 1996 federal law that prohibits recognition of same-sex marriages.

President Barack Obama had concluded that any law that treats gay people differently is unconstitutional unless it serves a compelling governmental interest, Attorney General Eric Holder said when discussing the administration’s reasoning for that decision.

—  John Wright