Texas Attorney General Ken Paxton is still resisting the U.S. Supreme Court’s ruling in favor of same-sex marriage, even though the state finally issued an accurate death certificate Thursday to a gay man from Conroe whose husband passed away earlier this year.
Ken Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal, wrote in a letter to U.S. District Judge Orlando Garcia today that the Department of State Health Services continues to deny accurate birth certificates to the children of same-sex couples.
Upton and his clients, Susan Leigh Jorgeson and Robin Bass Jorgeson, plan to attend a hearing next week on a contempt motion against Paxton and Kirk Cole, the interim health department commissioner, over their refusal to issue an amended death certificate to John Stone-Hoskins listing him as the husband of James Stone-Hoskins. James Stone-Hoskins died in January after the couple married in New Mexico last year.
On Wednesday, Garcia ordered Cole to issue an amended death certificate to Stone-Hoskins, who has terminal cancer, and set a hearing for next Wednesday in San Antonio. Stone-Hoskins received the amended death certificate Thursday.
“While it appears the defendants have issued the specific corrected death certificate you ordered, they are by no means complying with the permanent injunction you entered against them in this matter,” Upton wrote in his letter to Garcia, adding that the state health agency has “steadfastly refused” to do so.
Upton said his clients, whose second child was born Aug. 4, were most recently denied an accurate birth certificate Aug. 5. Upton believes the high court’s June 26 ruling in Obergefell v. Hodges, along with a subsequent order from Garcia enjoining state officials from enforcing Texas’ same-sex marriage ban, require that the state allow gay couples to have both names on birth certificates.
Also writing a letter to Garcia on Friday was Elizabeth Brenner, an attorney for William Kenneth Wallace, who’s been denied a death certificate listing him as his late husband’s spouse. According to Brenner’s letter, Wallace has gone to the health department’s vital statistics office numerous times in person over the last month and a half, but each time he was turned away — most recently on July 27.
Brenner’s letter requests permission to appear at the contempt hearing as an interested party.
Daniel McNeel Lane Jr., who represents Stone-Hoskins, said Friday he’s unsure what sanctions Garcia may impose on Paxton and Cole if he finds them in contempt.
“The court is flexible with respect to remedies,” Lane said. “John [Stone-Hoskins] simply does not want others to go through what he had to go through.”
Paxton’s office didn’t immediately respond to a request for comment.
In a motion Thursday responding to Garcia’s order, Assistant Attorney General William Deane asked the judge to cancel the contempt hearing since officials have issued an amended death certificate to Stone-Hoskins.
Deane argues it’s unclear whether the Supreme Court ruling should apply retroactively to death certificates.
“The Attorney General has not refused to amend any death certificate,” the 11-page motion states. “Instead, he is providing legal advice and representation to a client who has preferred to seek court guidance on whether Obergefell retroactively requires that he take action that will significantly impact settled proceedings. There is absolutely no authority for the proposition that a constitutional officer of a State may be held in contempt for good-faith representation of a client in discharging his constitutional duty.”