Busy legal day today in Houston. Last month, shortly after her re-election, Mayor Annise Parker announced that the City of Houston would award benefits to same-sex spouses.
The city of Houston will begin offering health and life insurance to legally married same-sex spouses of municipal employees, Mayor Annise Parker announced Wednesday.
Parker based her executive order on a legal opinion by city attorney David Feldman, who said it was in keeping with the equal protection guarantees cited by the U.S. Supreme Court in the ruling that gutted the federal Defense of Marriage Act in June, the Houston Chronicle reports.
“Based on the right to equal protection under the law, it is unconstitutional for the city to continue to deny benefits to the same-sex spouses of our employees who are legally married,” Parker said. “This change is not only the legal thing to do, it is the right, just and fair thing to do.”
Parker and Feldman also said they believe Texas’s constitutional ban on same-sex marriage violates the U.S. Constitution and should be superseded by the federal government’s steps to recognize same-sex marriages since the Supreme Court ruling.
The Houston Chronicle reports that today suit was filed by the Harris County GOP over this decision.
Harris County Republicans, led by the county’s GOP chairman, sued the City of Houston Tuesday over MayorAnnise Parker‘s extension of health and life insurance benefits to all spouses of legally married employees, including same-sex couples in November.
“This is one of the most egregious acts by an elected official I’ve ever seen,” said Jared Woodfill, chairman the Harris County Republican party. Woodfill, is the lead lawyer on the lawsuit. “They just decided to, unilaterally, as a lame duck, thumb their nose at the will of the people and just spit on the U.S. Constitution.”
The lawsuit, filed late Tuesday in state District court, alleges that the mechanism that Parker used to enact benefits for same-sex couples violates the Houston’s city charter, the state Defense of Marriage Act and the Texas Constitution.
I blogged about this earlier, and I questioned who would have standing to challenge this. The Houston City Attorney (the same lawyer who found that Windsor compels awarding benefits in conflict with the Texas state constitution) said they had no standing.
Attorneys for the city said the lawsuit will likely be thrown out because the two men who filed it do not appear to have legal standing.
“They don’t appear to have any particular state to complain about this,” said City Attorney David Feldman. “Just being a taxpayer isn’t enough.”
Texas jurisprudence has a broader conception of taxpayer standing than does federal jurisprudence, but I don’t know that it would go quite this far. I suspect that the AG would have standing to compel the city, as a creature of state law, to comport its actions with state law, but I haven’t looked too closely at that, either.
I spoke to a reporter with the Chronicle about this issue, and suggested that there may be taxpayer standing under Texas law, but I need to research the issue further. Further, as Leif notes, the Attorney General may get involved. AG Abbott is already challenging a decision by a Texas judge to grant a divorce to a gay marriage. That issue is before the Texas Supreme Court this term.
This case presents some deep conflict of law issues, as the city is citing the decision by federal agencies to award benefits to same-sex couples as a legal basis for his decision. It also tees up Texas’s constitutional amendment banning gay marriage.
In the meantime, here is the complaint:
Update: A Judge issued a TRO, and set a hearing for Jan. 6.