Top 10: Trans widow continued her fight

araguz2

VOWING TO WIN | Nikki Araguz says she will appeal her case all the way to he U.S. Supreme Court if necessary. (Courtesy of Nikki Araguz)

No. 8

The Texas Constitution defines marriage as between one man and one woman, but how will the state define “man” and “woman”?

Transgender marriage cases in Dallas and Houston could force the Texas Supreme Court — or even the U.S. Supreme Court — to ultimately decide the thorny issue.

In Houston, transgender widow Nikki Araguz has appealed a district judge’s ruling denying her death benefits from her late husband, Thomas Araguz III, a volunteer firefighter who was killed in the line of duty in 2010.

The judge, Randy Clapp, granted summary judgment to Thomas Araguz’s family, which filed a lawsuit alleging the couple’s 2008 marriage is void because Nikki Araguz was born male, and Texas law prohibits same-sex marriage.

The Araguz family’s argument relies heavily on a San Antonio appeals court’s 1999 ruling in Littleton v. Prange, which found that gender is determined at birth and cannot be changed.

However, LGBT advocates say the Littleton ruling is unconstitutional, goes against medical science and isn’t binding in other parts of the state, where it has not always been followed.

In Dallas, a district judge apparently reached the opposite conclusion from Clapp this November — denying a similar motion for summary judgment.

James Allan Scott, a transgender man, is seeking a divorce settlement from his wife of 13 years, Rebecca Louise Robertson. However, Robertson wants to have the marriage declared void because Scott was born a biological female.

District Judge Lori Chrisman denied Robertson’s motion for summary judgment, which leaned heavily on Littleton. The judge provided no explanation for her ruling allowing the matter to proceed as a divorce, at least for now.

It’s unclear whether Texas Attorney General Greg Abbott plans to intervene in the Dallas case. Abbott has intervened in same-sex divorce cases in Austin and Dallas, seeking to block them. But thus far he has stayed above the fray on transgender marriage, even though it presents overlapping issues.

After a transgender woman and a cisgender woman applied for a marriage license in 2010, the El Paso County clerk requested a ruling from Abbott about whether to grant it. But Abbott opted not to weigh in, with his office saying it would instead wait for court rulings in the Araguz case. The El Paso couple was later able to marry in San Antonio, where the county clerk went by Littleton v. Prange.

In response to the Araguz case, a bill was introduced in the Texas Legislature this year to ban transgender marriage. The bill would have removed proof of a sex change from the list of documents that can be used to obtain marriage licenses. Strongly opposed by LGBT advocates, it cleared a Senate committee but never made it to the floor.

Trans advocates said the bill also would have effectively prohibited the state from recognizing their transitioned status — or, who they are — for any purpose.

The problem for socially conservative lawmakers is, they can’t have it both ways. Marriage is a fundamental right that courts have said can’t be taken away from a person completely. So no matter what, Texas will be forced to allow a version of same-sex marriage.

Which is why some believe the cases could help undo the marriage amendment.

— John Wright

This article appeared in the Dallas Voice print edition December 30, 2011.

—  Kevin Thomas

Supreme Court hearing on Prop 8 to be televised

The seven-member California State Supreme Court will hear arguments Sept. 6, on whether state law gives the anti-gay group which pushed for passage of  Proposition 8, the voter approved state constitutional amendment banning gay marriage, the right to appeal a federal court decision declaring Prop 8 unconstitutional. And unlike the initial trial in Judge Vaughn Walker’s court, the Supreme Court hearing will be televised.

Court spokeswoman Lynn Holton said, “Because of public interest in the case, the court has approved a live statewide television broadcast of the arguments on the California Channel, a public affairs network.”

According to SF Appeal, should the sponsors succeed in their right to appeal, the case will go back to the 9th Circuit federal appeals court for review, a process that might take several months — just like everything else involving the court system.

However, the federal appeals court has said earlier this year that if the sponsors lack legal standing, the federal court will be required to dismiss the appeal.

The state high court has broadcast marriage equality-related arguments before, such as In re marriage Cases, was a California Supreme Court case with the dual holding that “statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny.”

 

—  admin

Prop 8 oral arguments are today, but if you’re not a lawyer it ‘might be like watching paint dry’

Ken Upton
Ken Upton

With DADT repeal all but dead, we turn our attention to California, where oral arguments are set today in the federal challenge to Proposition 8.

We’ve got a full preview and viewer’s guide over on the main page, and the two-hour proceedings will be broadcast live on the CSPAN website beginning at noon Dallas time.

But we also inquired of Ken Upton, a senior staff attorney at Lambda Legal in Dallas, as to what he’ll be looking for this afternoon. Here’s what Upton said:

I’ll be particularly interested in the panel’s questions surrounding standing (the constitutional principle that says only people actually affected or injured by the dispute have a right to litigate it, not people who merely have an opinion about it in a general sense). Courts can be willing to turn to this doctrine when appropriate to dispose of cases they aren’t ready to decide on the merits.

As for the second session, I’m interested in how the panel reacts to the evidence at trial and what weight they choose to give it. The marriage cases that were lost (e.g., NY, WA, IN, AZ) all resulted from a court willing to allow the government to speculate about the justifications for excluding same-sex couples from marriage. The victories happened when courts required the government to give real justifications that are grounded in fact, not theories made up after the fact based on rank speculation or outdated stereotypes. That will be the key here. How will the panel treat the evidence (which was overwhelmingly supportive of striking down Prop 8)?

It will be fun to watch (for lawyers, at least — might be like watching paint dry for many non-lawyers).

—  John Wright