Lambda Legal Hub




County Clerks In Fort Worth, Houston Say They Won't Issue Marriage Licenses To Gay Couples Even If Stay Is Lifted

Garcia.MaryLouiseCounty clerks in Fort Worth and Houston say they won't issue marriage licenses to same-sex couples even if a federal judge lifts his stay of a ruling striking down Texas' marriage bans, The Texas Observer reports. 

However, county clerks in Austin, Dallas and San Antonio all confirmed they're prepared to issue licenses if the stay is lifted. 

Last week, plaintiffs in a federal lawsuit challening the bans asked U.S. District Judge Orlando L. Garcia to lift his stay of a February decision which declared the bans unconstitutional. If Garcia lifts the stay, it could create a window for same-sex couples to marry in Texas before Republican Attorney General Greg Abbott is able to request a new stay from the 5th U.S. Circout Court of Appeals, which is set to hear oral arguments in the case on Jan. 9. 

From The Texas Observer

Jeff Nicholson, chief deputy for Tarrant County Clerk Mary Louise Garcia (above right), a Republican, said Tuesday he consulted with the DA’s office about the issue after receiving an inquiry from a citizen.

6a00d8341c730253ef01b8d0a0130e970c-800wi“They advised us very explicitly that the lifting of the stay by Garcia in San Antonio, which is a different district than the one we’re in, doesn’t have any effect on us,” Nicholson told the Observer. “I think the DA’s position is here, until this is very clearly decided, that Texas law is Texas law, and we’re going to sit tight.” ... 

Harris County Clerk Stan Stanart (below right), a Republican, said he would defer to Attorney General Greg Abbott’s office about whether he should issue licenses pending an appeal of Garcia’s decision to lift the stay.

“I’ll be looking to him for guidance,” said Stanart. “If they’re going to immediately appeal and they feel like there’s going to be an immediate stay, I would wait to find out what’s going to happen there.”

Stanart said he personally opposes same-sex marriage but will issue licenses if Texas’ marriage bans are ultimately overturned.

“My duty is to the law, not necessarily to provide a loophole,” Stanart said.

Bexar County (San Antonio) Clerk Gerhard C. “Gerry” Rickhoff, a Republican, told the Observer he's prepared to keep his office open 24 hours a day to accommodate same-sex couples, including those coming from surrounding counties where clerks may decline to issue licenses. Travis County (Austin) Clerk Dana DeBeauvoir, a Democrat, said she's also prepared to issue same-sex marriage licenses, including updating a database to change "Bride" and "Groom" to "Person 1" and "Person 2" and training her call center staff to field inquiries from same-sex couples. 

“I’m hoping for this day,” DeBeauvoir said. “I’m very much looking forward to marriage equality.”


Lambda Legal Targets Anti-Gay 'No Promo Homo' Laws In 8 States, Calls Them Unconstitutional

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Amid the controversy over Russia's anti-gay law earlier this year, it was widely reported that at least eight US states have laws on the books that are similar, though perhaps less far-reaching. 

Donteraseus_v6Now, Lambda Legal has launched a campaign targeting those laws, which the LGBT civil rights group says violate the guarantee of equal protection in the US Constitution. 

The laws, often referred to as "no promo homo" laws, restrict or prohibit the discussion of LGBT issues in the classroom, according to Lambda Legal's #DontEraseUs campaign:  

These laws are harmful and stigmatizing to LGBT students. For example, Alabama and Texas specifically mandate that, in curriculum related to sexual health education, students must be taught that being gay “is not a lifestyle acceptable to the general public.” Meanwhile, Arizona prohibits instruction that “portrays homosexuality as a positive alternative life-style” in certain curriculum. Other states with anti-LGBT curriculum laws include Louisiana, Mississippi, Oklahoma, South Carolina, and Utah.

Lambda Legal says many of the "no promo homo" laws were passed in the late 1980s and early 1990s as part of legislation related to sexual health education and HIV/AIDS. However, while they may apply only to health education, they are often misinterpreted by teachers and administrators — and could even be used to prohibit instruction about Harvey Milk in a history class or Walt Whitman in a poetry class. 

What's more, the laws actually are likely to increase the spread of sexually transmitted diseases by promoting stigma that leads to risk-taking. For example, Arizona's law prohibits instruction that “some methods of sex are safe methods of homosexual sex.”

And by creating a climate of discrimination, the laws contribute to the bullying of LGBT youth, who are already at a greater risk for suicide:  

LGBT students in states with these laws report hearing more homophobic remarks from school staff and are less likely to report incidents of harassment to school staff, according to GLSEN’s National School Climate Survey.

The obvious difference between a group like GLSEN taking on the "no promo homo" laws and Lambda Legal doing so is that the latter has a team of attorneys to back it up. The #DontEraseUs campaign doesn't explicitly threaten litigation, but Lambda Legal clearly states that it believes the laws constitute unlawful discrimination by the government:  

By comparison, imagine if there were laws that barred classroom discussion of people of a particular ethnic descent in a positive light, or required schools to teach students that having a particular religious background is “not acceptable to the general public.” These laws would treat students in those groups differently and violate their constitutional rights to equal protection.

Unfortunately, litigation may be the only way to halt implementation of the laws in many of the states, where there is little or no hope for legislative repeal in the near future.  

Lambda Legal is asking people, especially students, to join the #DontEraseMe campaign by speaking out against the laws and helping the group better understand how they're being applied. To join, go here. For frequently asked questions about the laws, go here. And for the full text of each of the eight laws, go here.   


Lambda Legal Asks U.S. Supreme Court to Review Federal Judge's Ruling Upholding Louisiana Gay Marriage Ban

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Hoping to bypass the 5th Circuit Court of Appeals, Lambda Legal and the lawyers representing Forum for Equality Louisiana and seven same-sex Louisiana couples have asked the U.S. Supreme Court to review U.S. District Judge Martin Feldman's August ruling upholding the state's same-sex marriage ban. 

The filing, called a Writ of Certiorari before Judgment can be granted in cases that show there is imperative public importance as to justify bypassing the normal appeals process in the Circuit Court of Appeal.

Said Lambda Legal Senior Counsel Kenneth D. Upton, Jr. via statement:

LouisianaThe ruling from the lower court in this case is a time-warped reading of the Constitution and neglects developments in the law, including since the Supreme Court’s decision in Windsor. We have seen a blizzard of well-reasoned rulings in recent months holding similarly discriminatory bans unconstitutional, including rulings out of the Fourth, Seventh, Ninth and Tenth Circuits Courts of Appeal. We are asking for the Supreme Court’s review now while it is considering the Sixth Circuit decision because together these cases present the full gamut of aberrant arguments supporting these discriminatory bans, and, in Louisiana specifically, present in one state a case covering both the right of same-sex couples to marry, and for legally married same-sex couples to have those marriages recognized. The longer same-sex couples are forced to live in a country divided by where their families are respected and where they aren’t the more apparent the injustice will become—and that clarity will come at a price for thousands of families.

Added Forum for Equality Louisiana Executive Director SarahJane Brady:

Dozens of federal courts have been nearly unanimous: these hateful, politically motivated marriage bans have no place in our country – and they will soon end up in the dustbin of history where they belong.  After the Sixth Circuit’s ruling upholding state bans on same sex marriages, we determined there is too much at stake in Louisiana and other states without marriage equality to wait on the appeals process to play out, potentially delaying justice for same-sex couples.

The Fifth Circuit has scheduled arguments in challenges to same-sex marriage bans from Louisiana and Texas for January 9. 

Read the petition below via Equality Case Files:

 


ACLU and Lambda Legal Ask Supreme Court to Review 6th Circuit Ruling Upholding Gay Marriage Bans

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As expected, the ACLU and Lambda Legal have filed a petition asking the U.S. Supreme Court to take up the Sixth Circuit's anti-equality ruling that upheld gay marriage bans in Ohio, Michigan, Tennessee, and Kentucky. 

Said Susan Sommer, Director of Constitutional Litigation for Lambda Legal via press release:

We have reached a tipping point, and the lives of thousands of same-sex spouses and their families hang in the balance. The Sixth Circuit Court of Appeals’ ruling shines a spotlight on our divided country, where married same-sex couples are either respected or discriminated against, depending on where they live or even where they travel. As we have learned from other historic cases like Loving v. Virginia and Lawrence v. Texas, there comes a time when the U.S. Supreme Court weighs in, and provides the answer,--on the question of marriage for same-sex couples we believe that time has come.

Read the petition below via Equality Case Files:


GOP Texas Lawmaker Wants To Enshrine 'License To Discriminate' Against Gays In State Constitution

A Tea Party Republican in Texas wants to enshrine a "license to discriminate" against LGBT people into the state Constitution.

CampbellState Sen. Donna Campbell filed a proposed constitutional amendment Monday that could allow business owners and government contractors to turn away gay people, or fire LGBT employees, under the guise of religious liberty. The amendment could also undermine LGBT-inclusive nondiscrimination ordinances that have passed in all of Texas' major cities.

Campbell's proposed constitutional amendment, Senate Joint Resolution 10, states that government "may not burden an individual’s or religious organization’s freedom of religion or right to act or refuse to act in a manner motivated by a sincerely held religious belief unless the government proves that the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest."

SJR 10 goes on to say that a "burden" includes "indirect burdens such as withholding benefits, assessing penalties, and denying access to facilities or programs."

PizerJenny Pizer (right), senior counsel at Lambda Legal, told Towleroad that in addition to undermining local nondiscrimination laws, she believes Campbell's proposal would open up government to all sorts of litigation from people who have religious objections to a wide variety of regulations.

"What it probably means is that the government's ability to challenge discrimination would be limited," Pizer said. "While she wants to permit religiously motivated discrimination against gay people, what about religiously motivated discrimination by one religion against another? What if the Jewish doctors decided to stop providing medical services to Christian fundamentalists? 

"It blows a hole in your nondiscrimination protections if people can ignore them for religious reasons," Pizer added. "It may be designed to trump local nondiscrimination protections, and that's a serious problem, but the bigger problem for government is the fact that it then becomes prohibitively expensive to enforce things like food safety law. What if somebody has a religious belief that requires them to make large bonfires in the backyard as part of a religious tradition, and you have dry, dangerous fire conditions? There are basic safety regulations. ... This is far-right grandstanding, but it's grandstanding with very serious potential implications for government."

Campbell, who's from the San Antonio area, strongly opposed that city's passage of an LGBT-inclusive nondiscrimination ordinance last year. In a letter to then-Mayor Julian Castro, Campbell wrote:

"San Antonio is an exceptional city in which every individual should feel welcome, and I believe that's the intent of the authors of the ordinance. However, by alienating a majority of Texans who believe in traditional marriage and values, it is having the opposite effect. San Antonio churches, families and businesses feel less welcome in their hometown as a result of this proposed ordinance, fearful that they may now be penalized or face costly lawsuits just for practicing their faith or expressing their opinion."

Campbell later told the Houston Chronicle

“Our Judeo-Christian values are under assault and I’m not going to let that stand. We have the right and religious freedom to express ourselves. When the government moves outside the proper bounds of the primary role, especially in order to legislate societal norms, they’re on shaky ground. Really it’s a few, just a few advocates, of tolerance. They are trying to criminalize faith and traditional values of the majority of Texans. Tolerance is going too far in this instance.”

Campbell introduced a similar measure two years ago, but it died in committee amid concerns that it would expand the right of Westboro Baptist Church to protest military funerals or even create a religious right to an abortion, according to Texas Monthly. Campbell's 2013 measure was backed by the anti-LGBT group Texas Values and opposed by Equality Texas. Daniel Williams, legislative specialist at Equality Texas, said Monday that Campbell's proposal would go far beyond an existing state statute.

“In 1999 Texas set the gold standard for protecting religious liberty with the passage of the Texas Religious Freedom Restoration Act,” Williams said. “SJR 10 would gut the existing legislation.”

Earlier this year, amid national outcry, Republican Arizona Gov. Jan Brewer vetoed a bill that would have allowed businesses to discriminate against gays based on religious beliefs, but a similar law later passed in Mississippi.

Texas cities with nondiscrimination ordinances that could be affected by Campbell's amendment include Austin, Dallas, El Paso, Fort Worth and San Antonio. Last year, the Houston City Council passed an LGBT-inclusive nondiscrimination ordinance, but the ordinance is on hold pending a lawsuit from opponents.

At a recent anti-LGBT rally in Houston, opponents of the city's Equal Rights Ordinance donned T-shirts saying, "We reserve the right to refuse service to homosexuals."

In an online press release about the bill, Campbell tied it to the city of Houston's decision to subpoena pastor sermons as part of its defense against the lawsuit challenging the ordinance. From Campbell's press release:

The Restoring Religious Freedom Amendment reflects a swift and measured response after controversy erupted in Houston last month when the City attempted to subpoena pastors' sermons. Those subpoenas stirred protest from Texas churches and elicited strongly worded statements from Governor-Elect Greg Abbott, Attorney General-Elect Ken Paxton, and Senator Campbell.

"The resolution I filed today provides a necessary layer of protection from overreaching governments that engage in acts of prejudice meant to intimidate Texans of faith from expressing their deeply held religious beliefs," Senator Campbell said.


Lambda Legal Brings Challenge to Puerto Rico's Same-Sex Marriage Ban To First Circuit Court of Appeals

6a00d8341c730253ef01b7c6f833ff970b-800wiAs promised, Lambda Legal has filed an appeal of Federal Judge Perez-Gimenez’s ruling that upheld Puerto Rico’s ban on same-sex marriage. The case will now be heard by the First Circuit Court of Appeals in Boston. The Washington Blade reports:

“Puerto Rico has many loving, committed couples who need the dignity and respect of marriage as soon as possible, and we won’t stop fighting on their behalf,” said Omar Gonzalez-Pagan of Lambda Legal. Ada Conde Vidal and Ivonne Álvarez Vélez of San Juan filed the lawsuit in U.S. District Court in March. Four additional gay and lesbian couples along with Lambda Legal and Puerto Rico Para Tod@s, a Puerto Rican LGBT advocacy group, joined the case three months later. 

Puerto Rico's ban on same-sex marriage was enacted in 1999 after lawmakers amended the U.S. commonwealth’s civil code to ban recognition of same-sex marriages. The decision out of Puerto Rico contradicts the larger trend we have been witnessing whereby federal and appellate court judges have been striking down bans on same-sex marriage:

“The district’s court ruling is not only out of step with the rest of the country, it leaves Puerto Rico as the only jurisdiction within the First Circuit to ban marriage for same-sex couples,” said Gonzalez-Pagan. “During the past year reasoned rulings by district courts throughout the nation and the Courts of Appeals for the 4th, 7th, 9th and 10th Circuits, as well as the U.S. Supreme Court’s actions to let stand some of those rulings, clearly demonstrate that marriage bans, such as Puerto Rico’s, are unconstitutional.” 

Gov. Alejandro García Padilla, who is among the defendants in the case, publicly supports civil unions for gays and lesbians. He reiterated his opposition to marriage rights for same-sex couples last week after Pérez-Giménez announced his ruling. “The government should not be in the business of discriminating against its people,” said Gonzalez-Pagan. “It is disappointing that Puerto Rico continues to perpetuate the harms it causes to loving, committed Puerto Rican same-sex couples.”

Now that the issue of same-sex marriage in Puerto Rico is headed to the 1st Circuit, SCOTUS Blog considers the impact its decision will have on the larger issue of same-sex marriage in the United States:

6a00d8341c730253ef01b8d08243b2970c-800wiTwo years ago, the First Circuit said flatly that it was still required to follow the Supreme Court’s summary, one-sentence ruling in 1972, in the case of Baker v. Nelson.  That ruling, it said, is “binding precedent” which bars an argument that there is “a constitutional right to same-sex marriage.”  And, it noted, the Supreme Court has not overturned that ruling in more recent gay rights decisions.  The Baker decision said without elaboration that a plea for a right to marry a same-sex partner did not raise “a substantial federal question.”

The question now is whether the First Circuit will continue to adhere to that view, in the face of a broad wave of federal court decisions indicating that Baker v. Nelson no longer remained an obstacle to striking down state laws against same-sex marriage.   If the First Circuit holds fast, it could set up a split on this issue that could lead the Supreme Court to step into the same-sex marriage controversy in a way that it has so far avoided.

In his ruling on October 21 rejecting the couples’ challenge to Puerto Rico’s ban, U.S. District Judge Juan M. Perez-Gimenez said that he had no choice because of the 1972 precedent and because of the First Circuit’s comments about Baker v. Nelson‘s continued validity.  The Baker decision, he said, is still controlling, “even when other cases would seem to undermine the Supreme Court’s holdings….The Supreme Court is perfectly capable of stating its intention to overrule a prior case.”


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