Andy Miller (left) and Brian Stephens with their son, Clark
Andy Miller (left) and Brian Stephens jointly adopted their son Clark in 2007 were unable to include both of their names on Clark’s supplemental birth certificate. (Courtesy of Andy Miller and Bryan Stephens )

Ken Paxton Asks Judge to Cancel Contempt Hearing on Gay Marriage


Attorney General Ken Paxton’s office says he shouldn’t face a contempt hearing for failing to comply with the U.S. Supreme Court’s same-sex marriage ruling, and no longer needs judicial supervision to ensure he’s doing so.

In an advisory submitted on Monday’s deadline, the AG’s office assured U.S. District Judge Orlando Garcia that state officials have implemented new policies for issuing birth and death certificates to same-sex couples, and are processing all pending applications.

Garcia initially scheduled a hearing for Aug. 12 on whether Paxton and Kirk Cole, interim commissioner of the Department of State Health Services, should be held in contempt for not providing an accurate death certificate to a gay widower. But Garcia postponed the hearing until September after officials pledged to comply with the high court’s June 26 decision in Obergefell v. Hodges.

In Monday’s filing, assistant solicitor general Michael Murphy argued the hearing is no longer necessary, and objected to “the unprecedented threat of contempt” in the first place. Quoting Supreme Court Justice Anthony Kennedy, Murphy suggested officials simply needed time to adapt after the high court “unsettled … a ‘millennia’-old definition of marriage.”

“Because the state is in full compliance with Obergefell and this court’s injunction and has granted the relief the intervenor sought, the State Defendants believe there is no need for the Court’s scheduled Sept. 10, 2015 contempt hearing or any continued Court supervision of the Department,” Murphy wrote.

Representatives from the AG’s office couldn’t immediately be reached for further comment.

Ken Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, said Tuesday he feels the threat of contempt was “a proportionate response to the unprecedented level of arrogance, impudence and non-compliance” with the marriage ruling on the part of state officials.

Upton added that while officials were adapting, the gay widower who sought an accurate death certificate, John Stone-Hoskins, was dying himself, and hundreds of same-sex couples were forced to go without accurate birth certificates.

“What they needed was the threat of going to jail and a good civics lesson in how our system works,” Upton said.

Murphy noted in his filing that the state has posted new policies for birth and death certificates online. In addition to providing accurate birth and death certificates to married same-sex couples, the policies say the state will amend those issued prior to the high court’s ruling.

The state will also provide accurate supplemental birth certificates to the same-sex parents of adopted children — granting LGBT advocates a victory in the cause championed by Representative Rafael Anchia, D-Dallas in recent legislative sessions.

View the state’s revised policies on vital records for same-sex couples below.