Despite plenty of anti-gay rhetoric from Republican elected officials, Texas state government has largely complied with the U.S. Supreme Court’s June ruling in favor of same-sex marriage.
The Employee Retirement System and the Teacher Retirement System, as well as the University of Texas and Texas A&M University systems, all quickly extended benefits to the same-sex spouses of employees.
Even Republican Attorney General Ken Paxton, who called the high court’s ruling “lawless” in a statement, abandoned a federal lawsuit challenging the state’s same-sex marriage ban. Paxton also dropped his own lawsuit seeking to block gay employees from obtaining benefits under the federal Family and Medical Leave Act.
However, state officials are now showing their first serious signs of resistance to the high court’s decision in Obergefell v. Hodges, resulting in two imminent lawsuits seeking to force the Department of State Health Services’ Vital Statistics Unit to provide accurate birth and death certificates to same-sex couples.
“I don’t understand what they are thinking,” said Ken Upton Jr., senior counsel for the LGBT civil rights group Lambda Legal. “One of the cases consolidated before [the Supreme Court] was a birth certificate case and one was a death certificate case. How can they not think this was resolved?”
The first lawsuit will be filed Wednesday, according to Daniel McNeel Lane Jr., the same attorney who represented same-sex couples in the federal lawsuit challenging Texas’ marriage ban.
Lane represents John Stone-Hoskins of Conroe, whose husband, James Stone, passed away in January. Stone-Hoskins, now battling cancer himself, is seeking a death certificate listing him as Stone’s husband. The couple married last year in New Mexico.
“He has submitted everything necessary to issue the new death certificate, but [the agency] has not agreed to do so,” Lane wrote in an email to the state last month. “Mr. Stone-Hoskins is on borrowed time — his doctors expect him to live another 45 to 60 days. As you probably know, such projections are unreliable, and he may die at any time.”
Chris Van Deusen, a spokesman for the Department of State Health Services, said in a statement last week that more than a month after the high court’s ruling, officials still hadn’t decided whether to update birth and death certificates.
“We are reviewing the Supreme Court decision to determine whether changes need to be made to vital records documents,” Van Deusen said. “This involves taking a broad look at a variety of forms and vital records. Our attorneys are working with the [attorney general’s] office on the analysis. We hope to finish the analysis in the coming weeks. Once we complete that analysis, we would make any necessary changes as soon as possible.”
Paxton’s office didn’t respond to a request for comment.
Upton said Lambda Legal also planned to file a lawsuit against the state health agency — possibly as early as this week — seeking accurate birth certificates for the adopted children of same-sex couples.
Currently, supplemental birth certificates issued to adoptive parents must contain the name of one female, the mother, and one male, the father. Representative Rafael Anchia, D-Dallas, championed a bill this year that would have allowed same-sex parents to have both names on the birth certificates of adopted children. Despite two impassioned speeches on the House floor, Anchia’s bill never came up for a vote in the chamber.
Assuming Lane and Upton’s clients prevail in their lawsuits, it could be expensive for the state. Defendants in successful civil rights cases are liable for the plaintiffs’ attorney fees, and possibly damages. And Texas already is likely to face a hefty tab from Lane’s firm in the same-sex marriage lawsuit.
“I hope the vital statistics people end up paying through the nose for this nonsense,” Upton said. “If they make us sue them, it is not going to be cheap for them.”