Paxton’s Disastrous Doubling Down

Hot on the heels of Governor Abbott’s disingenuous lead, last Sunday Texas Attorney General Ken Paxton issued a statement regarding the Supreme Court’s ruling in Obergefell v. Hodges that is functionally incoherent, willfully misleading, and legally wrong. Were this merely more bluster from an extremist state official unsettled by Friday’s happy turn in the course of American history, we could comfortably ignore him. However, Paxton’s recklessness could lead to ruinous consequences for public officials who might heed his bad advice. For now, it appears as though they will not.

According to Paxton, county clerks in Texas may refuse to issue marriage licenses to same-sex couples—and judges and justices of the peace may refuse to conduct marriage ceremonies—if doing so would violate their sincerely held religious beliefs. To support that position, Paxton surgically excises the one line in the Obergefell ruling that—at a first and very perfunctory glance—seems to give him cover: “It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

Of course, that’s not all the ruling says; that’s not even all that particular paragraph of the ruling says, and Paxton seems to place all his hopes in the possibility that we might not bother to read the rest: “The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” In other words, Americans everywhere still enjoy their fundamental and inviolable right to religious liberty, and may exercise that right to express objections to same-sex marriages as loudly and as often as they like. The first duty of those who serve the State, however—including county clerks, judges, and justices of the peace—is to uphold the law.

And Obergefell is the law.

Paxton’s willful misreading of the Obergefell decision allows him to manufacture a “fundamental dilemma” and a “tension” between the right to equal protection and the right to religious freedom, and then uses that specious analysis to provide clerks and judges with irresponsibly erroneous legal advice. Paxton informs local officials that they may shirk their duties, admits that doing so exposes them to civil litigation, but promises that legions of attorneys stand ready to defend them should they choose to go the distance in the courts.

What Paxton fails to say is that that distance will be both very short and very costly, once those cases are inevitably lost and damages are due. State officials might briefly take comfort in the fact that the Attorney General will do “everything [he] can” to be a “public voice” for those involved in litigation, at least until they realize that Paxton has set them up to stand in front of a target his own office will skillfully avoid.

Thus far, few have been duped by Paxton’s bombast. Legal analysts are seeing the Attorney General’s statement for the untenable temper tantrum that it is, and for the most part local officials have decided to uphold the law, even over their own personal objections. In fact, most Texas counties are doing the right thing, and we are confident that the rest will inevitably understand where their duty lies.

But we’re still in the early days of post-Obergefell America, and Texas state officials have made it clear that they will continue to use trumped-up religious freedom arguments to sustain their own anti-LGBT bigotry. Ultimately they will fail. Texans have already made it quite clear that they don’t share Abbott’s and Paxton’s appetite for discrimination, and we are smart enough to know that religious liberty and human equality need never be at odds with one another.

Our Constitution is big enough for everyone.

Marriage Equality Comes to Texas, But There is Still Much to Do

Today’s historic Supreme Court ruling in Obergefell v. Hodges represents a major breakthrough in the fight against LGBT discrimination in America.  At long last, loving couples throughout the nation can delight in the dignity of a marriage fully recognized by the state and fully protected by the law.

Unfortunately, John Arthur did not live long enough to witness the extraordinary transformation his marriage to Jim Obergefell has wrought upon our country.  Arthur and Obergefell had already lived together in a committed relationship for two decades when the Supreme Court struck down the federal Defense of Marriage Act, at which point the two decided to marry.  At the time, the marriages of same-sex couples were not recognized in the state of Ohio, and so the two flew to Maryland to wed.  By then, however, Arthur’s amyotrophic lateral sclerosis (ALS) had deteriorated to the point to where he was too weak to leave the plane, and thus he and his lifelong partner celebrated their nuptials while still aboard, on the tarmac.  Tragically, John Arthur passed away on October 22nd, 2013.

The ACLU is proud to have participated in the dismantling of DOMA, and just as proud to have represented Jim Obergefell in his momentous quest to bring marriage equality to every state in the nation.

Here in Texas, however, there remains much to do.

While the Supreme Court ruling means that LGBT couples may both marry in Texas and enjoy all of the rights, responsibilities and privileges of being married in Texas, we fully expect Attorney General Ken Paxton and a number of the state’s county clerks to resist the Court’s decision for as long as they are able to do so.  They will not be able to hold out forever, of course, but in the meantime, the ACLU of Texas has set up a website and a toll free number (1-888-503-6838) that will provide LGBT couples with information concerning their rights and a forum for reporting any acts of state discrimination they might endure.

And of course, we must recognize that the fight against LGBT discrimination does not end with today’s victory for marriage equality.  While an overwhelming majority of Texans oppose LGBT discrimination, throughout most of the state, LGBT Texans can still be fired, evicted, and denied services simply for being who they are.  We will continue to work towards introducing non-discrimination ordinances city by city, in the hopes of ultimately passing a statewide NDO.

For now, however, we toast all LGBT couples who plan to celebrate their weddings over the coming weeks.  And if you have questions about your rights, or feel you have been discriminated against, do not hesitate to visit our site or call us at 1-888-503-6838.

The Best and Worst of the 84th

Governor Abbott spent the weekend clearing his desk of all pending legislation, and thus we can finally close the book on Texas’s 84th legislative session. This year’s session wasn’t especially unusual, in that it saw its fair share of “chubbing,” glad-handing, horse-trading, and fist fights. Also typical was the sheer volume of threats leveled against Texans’ civil liberties. Thankfully, most of the worst proposals failed to make it onto the books—while some of the better ones did.

Here’s a rundown of some of the issues that mattered for civil liberties:

LGBT Rights:  The Texas legislature faced a serious quandary this year. On the one hand, some of our politicians really, really despise the idea of LGBT equality—more now than ever, with the Supreme Court’s marriage equality decision due any day—and are terrified of the possibility that it will become a reality. On the other, Indiana’s “religious refusal” debacle demonstrated just how catastrophic state-sponsored discrimination is for business.

Against that backdrop, LGBT rights fared well this session. Our LGBT Equality Coalition rose to the challenge, and Texas business leaders spoke out against discriminatory laws. Legislators introduced more than 20 bills and two constitutional amendments designed to enshrine discrimination into state law, but in the end none of them passed.  The only LGBT-related bill to become law (signed by Abbott with great fanfare) merely reaffirms that clergy can refuse to perform marriages that violate their religious beliefs, a right already guaranteed by the First Amendment.

Reproductive Rights: Not satisfied with passing the infamous HB 2 in 2013 (now before the Supreme Court) and the closure of more than half the states abortion clinics, extremist legislators tried to double down.  They introduced measures to eliminate an exception to the state’s 20-week abortion ban for severe fetal abnormalities and to block insurance from being used to pay for the termination of a pregnancy. While both of those measures failed, others did not.

In a particularly mean-spirited attack, the legislature revamped the “judicial bypass” process, making it even more difficult for young women who are victims of neglect, abuse, or sex trafficking to access abortion services. To add insult to injury, politicians also blocked access to breast and cervical cancer screenings for patients of Planned Parenthood, and diverted more state funding to discredited “crisis pregnancy centers,” whose literature has been described by the Texas Medical Association as “needlessly graphic” and “factually inaccurate.”

Criminal Justice:  Groups from every segment of the political spectrum united to reform the state’s criminal justice system. The Smart-on-Crime coalition helped enact a series of measures designed to streamline the penal code, reduce recidivism, improve the reintegration process, and give former convicts a better chance for success in life after prison. Disadvantaged school children need no longer fear a fast track to the prison system, now that truancy is no longer a crime. School police officers will receive specialized training to help them better meet the needs of the students they serve and protect. Prisoners destined for solitary will now undergo mental health screenings.

Immigration: The rights of the undocumented fared better than one might have expected in the current political climate.  For one, the fact that Texas DREAMers will continue to have access to in-state university tuition was welcome news. Additionally, two attempts to wrest immigration enforcement from the federal government were thwarted: the Interstate Border Enforcement Compact, designed to allow member states to coordinate border control efforts independent of the federal government, and the Sanctuary Cities bill, which would have required local law enforcement entities to enforce immigration law at the expense of their own local priorities.

However, one immigration measure that enjoyed broad support in the legislature was passed into law. A sweeping border protection bill that costs hundreds of millions of dollars, HB 11 shows that our legislature only embraces small government and fiscal conservatism when it concerns tax rates and deregulation, but not so much when civil rights, police overreach, mission creep, and government surveillance are on the table. The law sets up a centralized surveillance center, allows for southbound checkpoints of American citizens still in the U.S., and implements a hiring surge of officers, which has proven a reliable method for fomenting corruption and abuse in law enforcement.

The bottom line: In spite of some victories for civil liberties this legislative session, lesbian, gay and transgender Texans can still be fired, evicted, or denied services in much of the state, regardless of whether the Supreme Court rules in favor of marriage equality. Texas women seeking abortion access find ever more obstacles in their path, with many more clinics forced to close if the Supreme Court refuse to step in. We still have one of the highest rates of solitary confinement in the country. Private prisons continue to clamor for more inmates, and the state still has heavy incentives to provide them. And legislators continue to push for proposals that would punish immigrants for seeking a better life.

The legislature reconvenes in 2017, and until then there is much work to do.

Will Texas State Officials Defy the Supreme Court?

“The oath of office I take says I support the laws and Constitution of the United States; it says that first.”

Dallas County Clerk John Warren
Dallas County Clerk John Warren
Thus spoke Dallas County Clerk John Warren when he announced that his office would begin issuing marriage licenses to same-sex couples in the event of a favorable Supreme Court ruling later this month. Warren likewise indicated that he would be prepared to act within an hour and a half of the ruling, and that he had already approved overtime for his staff in order to accommodate what would surely be unprecedented demand.

Other counties are following suit. Bexar County clerk Gerry Rickhoff has not only redesigned the license itself so that it does not address gender, but has also indicated that he is prepared to keep his office open 24 hours a day if necessary. And Travis County clerk Dana DeBeauvoir will be prepared to issue marriage licenses promptly, as she has done before.

Stan Stanart1
Harris County Clerk Stan Stanart

So we know Dallas, Austin, and San Antonio will be prepared to comply with a favorable Supreme Court decision on marriage equality the day it’s rendered. Unfortunately, however, same sex-couples who live in Houston—the state’s largest city and the most diverse in the country—might have to wait. Harris County Clerk Stan Stanart has stated that he will seek “guidance” from the state’s Attorney General before issuing marriage licenses to same-sex couples—and he’s made it perfectly and disturbingly clear that his reasons for preventing same-sex marriages are personal: “They’re destroying an institution, the institution of marriage.”

On the state level, politicians are reacting about as well as one would expect from a group of people who celebrate their opposition to marriage equality with slices of hate cake. The fact that their statements are predictable, however, doesn’t make them any less alarming. Representative Cecil Bell, who authored several retrograde anti-LGBT measures in the last legislative session, has stated that it would be “disappointing” to see county clerks “acting outside of Texas law,” suggesting that compliance with a Supreme Court ruling were somehow illegal. Naturally Bell added that such a ruling “is not an edict that sweeps across the land,” although that is precisely what a Supreme Court ruling does.

Ken Paxton
Texas Attorney General Ken Paxton

Like Bell, Attorney General Ken Paxton, whose “guidance” Stan Stanart and other clerks may seek on decision day, has stated publicly that he is “committed to defending the Texas Constitution and self-government by Texans”—the subtext being that he intends to pursue bureaucratic obstructionism if he finds the Supreme Court decision unacceptable to him and, apparently, “the will of the people of Texas.” This is in spite of the fact that polls clearly show that a strong majority of Texas voters believe that discrimination against the LGBT community is a problem.

Let the Attorney General and county clerks throughout the state know that you want them to do what their oaths and their duties already bind them to do: to obey and uphold the law of the land.

Recap: Compilation of #HOUequality tweets

At a special City Council hearing on Houston’s Equal Rights Ordinance that took place Wed., April 29, most residents who testified voiced their unequivocal support for the ordinance. Just 19 people spoke against.

Attend the public meetings on the Houston Equal Rights Ordinance. To sign up to speak at the Public Session on Tuesday, May 6, you must do so before 1 p.m. the day of the meeting by:

  • Calling the City Secretary’s office at 832.393.1100
  • Sending an email to citysecretary@houstontx.gov
  • Coming by the office on the public level of the City Hall Annex, 900 Bagby, Houston 77002 by 1:30 p.m. that
    Tuesday

Before you testify please download our guide (PDF), which is full of helpful tips for giving public testimony. If you can’t make it in person, tell your story online. You can submit text or a video link.

Show your support on social media!

June 12, “Loving Day,” May Be Joined by “Windsor Day”

Terri Burke
Executive Director

Romeo and Juliet weren’t the first, nor will they be the last, lovers to pursue their relationships in secret. Throughout the centuries, people have loved in the shadows, sometimes because of their ages, often because of parental objections, sometimes because they are married to someone else.

For the past 46 years, though, men and women of different races have been able to love – and importantly, to marry – in the daylight.

On June 12, 1967, “Loving Day,” the U.S. Supreme Court unanimously ended the laws in the states of the Old South that made it a crime for whites and non-whites to marry. The Earl Warren Court declared miscegenation laws unconstitutional. “There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the equal protection clause,” declared the majority opinion.

Mildred and Richard Loving married in Washington, D.C. in 1959 and returned to northeastern Virginia to make a home and raise a family. Mildred, an 18-year-old black woman, had no idea that she had committed a crime when she married Richard, a white man.

Arrested in their home – local police barged in late at night hoping to catch them having sex – they pleaded guilty to “cohabiting as a man and wife” and avoided jail time by moving to the District of Columbia. They wrote then-Attorney General Robert Kennedy who referred them to the ACLU (times have changed!).

Sometime in the next few weeks, the court will once again have the chance to bring love out of the shadows, when it releases its ruling in Windsor v. United States, a challenge to the federal Defense of Marriage Act. It’s entirely possible that another June date, this one in 2013, will go down in history because the John Roberts Court echoes that earlier opinion: “There can be no doubt that restricting the freedom to marry solely because of sexual orientation violates the central meaning of the equal protection clause.”

June is the month we associate with love and marriage. Because of the work of the ACLU, for 46 years it has been a month for brides and grooms of all colors. We can only hope that, because of Edie Windsor and the ACLU, Loving Day will soon be joined by Windsor Day and June will be known as the month of brides and brides and grooms and grooms.

Equal Access to Prom

By Dotty Griffith
Public Education Director

Jarrell High School senior, Allison Brawley, got to take the date of her choice to the prom as reported by Texas News Service. Although Allison first ran into roadblocks, she—with the help of the ACLU of Texas—was able to negotiate a resolution that allowed her to share a special night of celebration with friends and classmates.

The ACLU applauds the decision by Jarrell High School administrators to adopt a fair policy that treated all students the same, regardless of sexual orientation or gender.

Often doing the right thing isn’t easy or without controversy. By standing up for Allison’s rights in a measured and reasonable way, Allison and her mother set an example for other students and their parents to follow.

The ACLU of Texas is gratified that we were able to facilitate a positive outcome that showed respect for all parties involved.

Do Pervasive Homophobic Remarks Like “That’s So Gay” Create a Hostile School Environment?

By Gislaine Williams
Outreach and Volunteer Coordinator

The White House LGBT Conference on Safe Schools and Communities brought together educators, law enforcement, social service providers and community advocates to talk about the strategies being used to address violence and harassment against the LGBT community. Check out our live tweets during the event below.

Learn what you can do in Texas to protect students against discrimination and bullying at www.youthrightstx.org. Follow @youthrightstx on Twitter.

@whitehouse #lgbt conference starting in Arlington with Fairness Fort Worth, UTA president and Guatam Raghavan of whitehouse.

#whlgbt DOJ community relations Services helps build relationships between community and law enforcement

US Attorney Saldaño asks community to report incidents, violence against lgbt community often a hidden crime #whlgbt

#whlgbt Rupert of natl lesbian rights: still many challenges to reporting, transgender sex workers are scared to report violence

Rupert of @nclrights can’t separate racial justice from lgbt rights #whlgbt

#whlgbt conference Safe Schools panel includes @glsen @thejusticedept @usedgov and human rights campaign

#whlgbt Kosciw from @glsen says hostile school environment created by pervasive homophobic remarks like “that’s so gay”

#whlgbt Yudin of @usedgov: 90% LGBT students verbally harassed

#whlgbt Cummings of civil rights division, US DoJ bullying occurs because of overall hostile climate. Need training for all school personell

#whlgbt Cummings of DOJ: Proper to response to harassment not always discipline. Promote education & training.

Looking forward to hearing Joel Burns, Eric Holder at #whlgbt conference.

Watch it Live! #WHLGBT Conference on safe schools and communities at @utarlington http://wh.gov/LIVE

Joel Burns shares personal experience with bullying. Celebrating 19th wedding anniversary with his husband today. #whlgbt

Valerie Jarrett, senior Obama advisor: schools have moral and legal obligation to protect students from harassment #whlgbt

Holder: schools failing to address bullying are ignoring civil rights protections #whlgbt

“We look forward to progress that we can and must achieve,” Holder at #whlgbt conference

Small group discussion: both adults & students need education about bullying & we need holistic approach like PBIS to end bullying #whlgbt

DeptofEd and DOJ recognize role of school-to-prison pipeline. “Discipline is just part of answer-goal is to stop harassment.” #whlgbt

Judy Shepard closes #whlgbt conference http://twitpic.com/8z2rj0

You are 10 and Chewing Gum at School. Your Punishment: Class C Misdemeanor

By Kirsten Bokenkamp
Communications Coordinator

When I was a kid, a student caught chewing gum in class, or throwing a paper airplane across the classroom got a reminder from the teacher to stop disrupting class, or was maybe sent to the principal’s office for a lecture about proper behavior.  But never did any of my classmates ever get slapped with a Class C Misdemeanor for our misbehavior at school.  Today, this is no longer the case.  Some kids, before they are old enough to understand what it means to have a criminal record, are dealing with court dates and judges. And their families, who are often barely making ends meet, are blasted with harsh fines.  Wonder which kids are ticketed?  Statistically, children of color and special education students are disciplined at much higher rates than their peers.  Not quite fair, or smart.  Once a child is ticketed, their chance of dropping out of school and ending up in jail increases.

This week, the ACLU of Texas launched its Youth Rights Campaign, and student ticketing, part of the “school-to-prison pipeline” is one of our major priorities.  Youth misbehavior is a serious issue, but the way Texas schools are dealing with it isn’t the right answer.  Youth need support, and it benefits society as a whole to keep kids in school and out of the criminal justice system.  Our campaign calls for an end to these counterproductive discipline policies; instead, we call on Texas schools to implement evidence based behavior systems that have been shown to create a more positive school environment,

That’s not the only issue Texas youth are facing.  Our Youth Rights Campaign also works to ensure equality for all Texas children.  Unfortunately, students often face bullying, harassment, and discrimination because of their actual or perceived sexual orientation or gender identity.  As a result, these students do not feel safe at what should always be a safe place – school.  Our campaign calls on school administrators to be more aware of and responsive to allegations of bullying, harassment, and discrimination at school and to ensure students are treated with equality and dignity that all humans are entitled to.

The last issue that the ACLU of Texas Youth Rights Campaign focuses on is the placement of juveniles in solitary confinement.   Children, some as young as 14, who are certified to stand trial as an adult may be held in solitary confinement before they even have their day in court.  Many are found innocent, yet have spent a year or more of their young lives in solitary confinement.  Far from rehabilitative, this treatment is inhumane and leads to severe psychological distress and damage in adults; it is unconscionable that children are subjected to this abuse.  In addition to suffering extreme mental anguish, these children are also denied the opportunity to participate in religious services and school, and our counties waste scarce tax dollars on costly segregation schemes.

How does our campaign work? To be successful, we are reaching out to students, parents, teachers, and community members at the local level throughout Texas.  We are depending on the involvement of people who care about the wellbeing of their communities, who see the challenges and injustices that youth are facing, and who want to make Texas a safer and more productive state for everybody.  In fact, to be successful, we need you.  Texas’ youth needs you too.  To learn more about our Youth Rights Campaign, visit www.youthrightstx.org.  To learn more about the ACLU of Texas, visit www.aclutx.org.

ACLU of Texas: The “Best Activist Organization” in Austin!

By Kirsten Bokenkamp
Communications Coordinator

It’s that time of year again – The Austin Chronicle’s Best of Austin ballots are ready for submission – and we are looking for your vote for “Best Activist Organization”!  

As you ponder over what lucky organization will get your vote, you might be asking “why you, ACLU of Texas”? We’ll tell you why: For starters, we are the only activist organization that advocates for all civil liberties issues – no picking and choosing for us.  Beyond that, just listen to some of the great things we got done over the past year!  By the time you are done reading, voting for yours truly will be the only logical choice.

  • We fought to keep kids in schools and out of jail.  Schools now have clear steps to follow to protect their students from bullying at school; parents now have the right to tell schools that the school cannot corporally punish their child; less kids will be ticketed as a result of their childish misbehavior; and before ticketing truant students, schools are now required to first implement preventative measures.  Better yet, students under 12 or over 17 can no longer be given tickets for being truant. 
  • In support of student Nikki Peet, we successfully persuaded the Flour Bluff High School to allow a Gay-straight Alliance (GSA) Club to be formed on its campus. Denying a GSA club the ability to meet, when the school allows other non-curricular clubs to meet, violates the First Amendment and the Equal Access Act. Schools around Texas took note that we won’t stand for this discrimination!
  • We advocated before the State Board of Education, and told them that scholarship, not politics must determine our children’s public school curriculum. 
  • We got Austin youth involved in activism! Our youth advocates made office visits at the Capitol, testified on behalf of their peers, and helped us with our “Know your Rights” manuals for students.
  • It was an uphill battle, but we fought tooth and nail against the anti-immigrant legislation at the Capitol this session.  And, we are glad to report that the ‘Sanctuary Cities” bill has finally died!

That is just a sampling of the ways we fought to defend your civil liberties this past year. Please show your support by voting the ACLU of Texas as the “Best Activist Organization” in the Austin Chronicle’s Best of Austin contest!  Click here for the ballot, make sure you fill out all the required information, and find the “Best Activist Organization” under the “Politics and Personalities” Section.  And remember, you don’t have to live in Austin to vote!

Thanks y’all!