Saturday, January 25, 2014

Abbott, Houston, And Same-Sex Marriage

Texas AG Abbott jumps into Houston's Same-Sex Marriage battle siding with current Texas laws.

Houston's openly lesbian mayor, Annise Parker, declared same-sex marriage legal in Houston, violating Texas state law. While no marriage licenses for same-sex marriages are being issued in Houston, Parker issued policies granting married benefits to same-sex spouses. Since, two law suits have been filed regarding Parker's policies. Attorney General and candidate for governor Greg Abbott has jumped into the suits, filing briefs for both cases.

The first case is a suit on behalf of the taxpayers of Houston, filed by Jack Pidgeon and Larry Hicks. AG Abbott claims Amicus Curiea, citing that the case needs to be heard in a state level court. The defendants (Parker) filed for dismissal claiming the Texas laws unconstitutional. In doing so, according to Abbott, they involved the state government.

Abbott's brief on the case also brings up the merits of the suit since taxpayer monies will be used to provide these benefits. As such, the taxpayers are allowed to challenge the legality of the expenditures.

This case should be remanded to state court as soon as possible. Removal is permitted only when the federal district court woul d have original jurisdiction over the action. See 28 U.S.C. § 1441(a). This court lacks  original jurisdiction because plaintiffs have sued as taxpayers to enjoin the mayor of Houston from unlawfully spending public funds. Pls.’ Orig. Pet. at ¶¶ 2.1–2.5, 5.1–8.2 (attached as Ex. A to Defs.’ Am. Notice of Removal). Texas law allows taxpayers to challenge illegal expenditures without demonstrating any particularized injury. See Andrade v.Venable, 372 S.W.3d 134, 137 (Tex. 2012) (“[A] taxpayer has standing to sue to enjoin the illegal expenditure of public funds, and need not demonstrate a particularized injury.”).

The second brief filed by Abbott regarding Houston is a call to dismiss a suit filed by an organization based in the state of New York. The suit is an attempt to violate the 10th Amendment and convince federal courts to intervene in issues of state sovereignty.  The NY based Lambda Group filed a suit against Houston attempting to compel them to continue to break state laws and recognize same-sex marriages that were lawfully performed and recognized in other states. Again, Abbot cites involvement of the AG's office due to the questioning of state laws.

A federal court must dismiss on its own initiative any action over which it lacks subject-matter jurisdiction. See FED. R CIV.P. 12(h)(3). The court lacks subject-matter jurisdiction for three reasons. First, federal courts lack authority to act in “friendly or feigned proceedings,” and there is no adversarial relationship between the plaintiffs and the defendants in this case. Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997). When litigants “desire precisely the same result” there is “no case or controversy within the meaning of Art. III.” Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 48 (1971). The plaintiffs and defendants all desire a regime that extends health benefits to the same-sex partners of city employees who obtained marriage licenses from other jurisdictions, and the defendants are refusing to obey state laws that prohibit them from recognizing out-of-state same-sex marriages. Article III does not permit the plaintiffs to sue city officials (who are giving the plaintiffs everything that they want) and ask a judge to ratify the city officials’ violation of state law.

The Same-Sex Marriage Trap

Same-Sex Marriage is one of those issues that produces a social and political quagmire created by shallow-thinking single-issue voters.

Single-issue voters are those who will vote for a candidate based on one single issue, and usually not one of great importance to governance within a republican form of government. For instance, if a city were to pass an ordinance protecting dandelions, some voters may want to pull those weeds from their yard. For them, the freedom to remove those weeds is the most important (and only) issue in the race. They would vote for a candidate that would promise to repeal that ordinance regardless of the candidate's economic policies. Their candidate could be the most corrupt choice, willing to raise taxes to 75%, place a toll on pedestrian traffic in city parks, ban cats and dogs, and advocate using taxpayers' money to supply crystal meth for use by all city cops in order to increase their patrol hours. It wouldn't matter. Their right to pull dandelions is the only thing they care about.

The same trap occurs with many moral issues such as same-sex marriage and abortion. A certain demographic concentrates only on those issues, ignoring more important ones.

A voter may agree with Abbott on fiscal policy, capitalist-based job and business opportunity creating policies, lower tax rates and expanded tax bases in order to increase revenue without increasing overall tax burdens (Laffer Curve). Heck, that candidate may be on the same side of the issue regarding abortion as the voter. But the single-issue voter will ignore the aggregate and vote against that candidate on just that one single issue. It is short-sighted, but it happens.

One of the things that makes this such a hot-button issue is the fact that some believe that marriage is defined by religion. In the US, that is not the case. The First Amendment precludes using religion as a basis for defining marriage (legally) in the US. Choosing a religious definition is legislating a chosen state religion. Marriage in the US is defined by law, plain and simple. Laws in our country are made by representatives charged to vote the will of their constituents. Many times they do not. Some even choose to believe they have the authority to tell their constituents what to think or believe.

Marriage is a state-by-state 10th Amendment right reserved to each individual state. Only in cases of a marriage being lawfully performed and recognized by one state then being reciprocated and recognized by all others does it become a federal issue. That was the case with mixed-race marriages in the early 20th century.

Drivers' licenses are another 10th Amendment right reserved to the states. Yet states seem to universally recognize licenses issued by the others. In contrast, the 2nd Amendment grants all citizens the right to own and carry firearms. Yet some states will not recognize this right and think it is a privilege for which they can issue or deny a permit. This is something plainly stated in the US Constitution and should not be subject to debate. If states cannot get something that straightforward correct, the issue of same-sex marriage should probably remain a very minor issue.

Reading Abbot's briefs, some may claim he is taking a social and political stance. I urge those who would believe so to read the full briefs. Greg Abbot may have a social or political stance on the issue. Regardless of what that stance may be, filing the briefs is his job. Like it or not, the Texas marriage laws are the lawfully and constitutionally recognized laws of the state. The majority of voting and taxpaying citizens of the state agree with the state's legal definition of marriage. Abbott is standing up for that legal majority. 

Those who may want to change the laws will have to wait until the 84th Legislative Session in 2015. It will be the state congress who would recommend such a resolution for a proposal subject to ratification by the voting population. Until then, there are more important issues to consider.