Texas AG Paxton under the Microscope

It seems fair to say that statewide Texas politicians of the Republican variety are having some legal troubles.

Some of them have led to full-blown legal proceedings, like former Governor Rick Perry’s pending criminal charge, the civil fine against Attorney General Ken Paxton from the Texas State Securities Board (for an incident that occurred before he was elected), and the criminal securities fraud complaint filed against AG Paxton by Texans for Public Justice (which goes before a grand jury soon).

Some have remained in the realm of allegations and suspicions, like current Governor Greg Abbott’s alleged misconduct with regard to the Texas Enterprise Fund when he was Attorney General. I’m not sure if any formal complaints are currently pending against Lieutenant Governor Dan Patrick—which is not to say he hasn’t had complaints (PDF file) before—but he sure does know how to stir people up.

"SCOTUS Marriage Equality 2015 (Obergefell v. Hodges) - 26 June 2015" by Ted Eytan from Washington, DC, USA (SCOTUS Marriage Equality 2015 58151) [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

Most recently notorious, I’d say, is AG Paxton’s official opinion (PDF file here or here), issued on June 28, 2015 in response to a request from LG Patrick, regarding the U.S. Supreme Court’s marriage equality ruling in Obergefell v. Hodges and the Fifth Circuit’s order affirming that ruling in De Leon v. Abbott. Continue reading


The More Things Change, the More They Stay the Same

Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement, there would be no cause for such marriage. The fact that he separated the races shows that he did not intend for the races to mix.

Judge Leon M. Bazile (1965)
denying the motion of Richard and Mildred Loving to vacate their conviction for miscegenation

If Chief Justice Warren and his associates had known God’s word and had desired to do the Lord’s will, I am quite confident that the 1954 decision would never have been made. The facilities should be separate. When God has drawn the line of distinction, we should not attempt to cross that line.

Rev. Jerry Falwell
“Segregation or Integration: Which?” (1958) Continue reading


The Cake Will Be Bone-Shaped, I Assume

Pat Robertson is worried. In other news, the sky is blue.

But seriously, Pat Robertson is concerned about same-sex marriage. Again.

After a Washington state judge found on Wednesday that a Christian florist had violated the state’s anti-discrimination law by refusing to sell flower arrangements for a same-sex couple’s wedding, Robertson asserted that an “intelligent judge” would have ruled against the gay men.

“To say that some procedural anomaly in the statute overrides the fundamental religious freedoms of the people, it’s just crazy,” he insisted. “And I hope that the lawyers for this florist will appeal this thing to get into the federal courts.”

“But this is outrageous!” the conservative preacher continued. “To tell a florist that she’s got to provide flowers for a particular kind of wedding. What if somebody wanted to marry his dog? She’s got to have flowers for that? What if there’s a polygamous situation where a guy has five wives and he wants to have five ceremonies, and she’s going to be forced by the law to provide them flowers. I mean, this is crazy.”

[Emphasis added.] (h/t Alice)

My favorite part of this whole “marrying-your-dog” trope is that it gets the question backwards. If you really value liberty and freedom, the question should always be “why should this be illegal?”, not “Why should we as a society allow this?” (Yes, I’m paraphrasing Donna from “The West Wing.”) Continue reading


Social Media Synergy Leads to Awkward Results

A couple of friends shared a story on Facebook yesterday, about attorney Ted Olsen schooling right-wing legal dilettante Tony Perkins on marriage equality  In short, Perkins tried to pull out the tired old standby argument that allowing same-sex marriage would open the floodgates to all kinds of marriages.

Watch lawyer destroy Tony Perkins on Fox after he says gay marriage leads to girls marrying dads. Family Research Council President Tony Perkins argued on Sunday that girls would be allowed to marry their biological fathers if the U.S. Supreme Court legalized... RAWSTORY.COM
At least this time Perkins had an actual news story to cite, regarding a father and daughter who say they plan on getting married after two years of dating  which began after twelve years of separation (when the woman was ages 4 through 16). There is plenty to unpack and analyze in that story, beginning with the fact that it certainly appears to be an outlier, followed by the fact that so far no one else seems to be seriously advocating for legal recognition of their marriage.

If they want legal recognition for their marriage, though, I say let them make their case, either in court or in front of one or more state legislatures. This is not the point I want to make in this post, though.

Continue reading


Points for Effort in the Marriage Equality Cases?

The oral arguments in the Seventh Circuit case involving the marriage statutes in Indiana and Wisconsin sounds like they were extremely uncomfortable for those states’ attorneys general. In a way, I feel bad for the two attorneys who had to argue the case, but then again, they were trying to steer an obviously sinking ship. Ed Brayton posted some highlights from the hearing. This bit between the judges and Indiana Solicitor General Thomas Fisher seems like the trial advocacy equivalent of being rapped on the hand with a ruler:

JUDGE POSNER: “You allow the homosexual couples to adopt. Why don’t you want their children to have the same advantages as children adopted by heterosexual couples?”

FISHER: “The question is what can we do to nudge heterosexual couples who may produce children, you know, unintentionally to plan for this—to plan for the consequences and appreciate the consequences of sexual behavior. Those consequences don’t arise with same-sex couples. It’s not in the context of adoption that marriage—”

JUDGE POSNER: “But you’re not answering my question. You’ve got millions of adopted children, and a lot of them—200,000 or more—are adopted by same-sex couples. Why don’t you want their children to be as well off as the adopted children of heterosexual couples?” Continue reading


Morality Clauses in the Modern Era

When I was practicing family law, I sometimes included “morality clauses” in the divorce decrees that I drafted. This is a clause prohibiting either parent, during their periods of possession of the child/ren, from allowing an unmarried adult who is not a family member, and with whom that parent has a romantic or dating relationship, from staying overnight.

I was never proud of including such a clause, and I hated calling it a “morality” clause. I saw situations where it was most likely necessary to protect the child/ren, though, usually where one parent had, after separation from the other parent, become a, ahem, player. The idea was to shield the child/ren from that parent’s dating life until that parent was ready to get hitched again, and the other parent usually had to accept a similar restriction. While I thought it was overkill in most cases, it seemed necessary in a few.

Here’s the thing, though: it applies to unmarried adults who are dating a parent. The morality clause is moot if the parent marries the person, so the restriction is not permanent……..provided the parent can legally marry the person they are dating.

See where this is going?

What happens if the parent is in a same-sex relationship? The courts of Texas are always ready to answer questions like that in the most restrictive and invasive way possible:

Carolyn Compton is in a three year-old relationship with a woman. According to Compton’s partner Page Price, Compton’s ex-husband rarely sees their two children and was also once charged with stalking Compton, a felony, although he eventually plead to a misdemeanor charge of criminal trespassing.

And yet, thanks to a Texas judge, Compton could lose custody of her children because she has the audacity to live with the woman she loves.

According to Price, Judge John Roach, a Republican who presides over a state trial court in McKinney, Texas, placed a so-called “morality clause” in Compton’s divorce papers. This clause forbids Compton having a person that she is not related to “by blood or marriage” at her home past 9pm when her children are present. Since Texas will not allow Compton to marry her partner, this means that she effectively cannot live with her partner so long as she retains custody over her children. Invoking the “morality clause,” Judge Roach gave Price 30 days to move out of Compton’s home.

Ah, Texas. Where it’s better for a parent to be a convicted criminal than to be gay.

Price posted about the judge’s ruling on Facebook last week, writing that the judge placed the clause in the divorce papers because he didn’t like Compton’s “lifestyle.”

“Our children are all happy and well adjusted. By his enforcement, being that we cannot marry in this state, I have been ordered to move out of my home,” Price wrote.

To be fair, much of the state has emerged from whatever mass bigotry led to the 2005 constitutional amendment banning same-sex marriage, but it hasn’t reached wide segments of the judiciary yet. State law allows district judges to make custody orders consistent with the “best interest of the child,” which is often whatever the district judge says it is, and which appellate judges view as findings of fact that they rarely question.

Few, if any, reported cases have addressed the enforceability of morality clauses. A Texas appellate court took a moment recently to dismiss a dad’s claim that a morality clause restricting him, but not his ex-wife, violated the Equal Protection Clause. Roberts v. Roberts, No. 04-11-00554-CV, opinion (Tex. App.—San Antonio, May 1, 2013).

As far as I know, the purpose of morality clauses is to protect kids from confusion if a parent starts dating after a divorce by trying to shield them from all but the most serious relationships. That this is still called “morality” reflects an origin in an earlier era. A blogger at the site Mr. Custody Coach offers a good take on the nature and effect of morality clauses today:

On the surface, the thought is about protecting the children from a revolving door of romantic partners from being introduced to the children, only to have them disappear from their lives in short order. It goes without saying that this would be detrimental to the children’s psyche, though how much and to what extent is hard to measure. However, there are far too many loopholes in even the tightest of morality clauses. Further, they simply can’t stop the children from being introduced to new significant others in a parent’s life.

There are some recent trends in child parenting agreements/orders that really should be avoided. In fact, morality clauses should be avoided, in our opinion, due to the reality that they are quite difficult to enforce and don’t afford children the “protection” that is intended.

First, the use of a parent’s sexual behavior to restrict visitation or withhold custody, even when there is no evidence that such behavior has any effect on the child. Children have close friends. Adults have close friends. It stands to reason that these friends may come in go in any of our lives. It seems counter-intuitive that a new adult “close friend” should be restricted from introduction or noticed as a part of a parent’s life. In fact, it may introduce suspicion to the children about the new person in their parent’s life without any real understanding of why it’s necessary, which can be detrimental in its own right.

Secondly, the use of restraining orders nowadays is used to introduce the family court’s opinion regarding the child’s best interests when in reality – it’s a tool to circumvent the parent’s judgments about what’s best for their child.

In each situation, the court is able to impose its view of moral behavior with the force of law. With all of the other intrusions that divorce and custody litigation affords the family court – this one is another that is an alarming trend. Further, it has been our experience that those initiating such clauses are doing so simply to control the life of their ex-partner and are even the person who violates the clauses that they are trying to impose on the other party

It is undoubtedly important to deal carefully with introducing a child to a new significant other, but the assumption of the standard morality clause is that the S/O could become a spouse. For Compton and her partner, this restriction could apply for the rest of their lives. A mostly-absentee dad seems to have gotten an assist from a regressive judge, and now the children may have to live in a single-parent household.

I hope the opponents of marriage equality are proud of themselves.

If we’re really going to talk about “morality” in a post-divorce scenario, as seen through the eyes of a conservative Republican state judge, I feel like I ought to break out the big guns:

I tell you that anyone who divorces his wife, except for sexual immorality, and marries another woman commits adultery.

Matthew 19:9 (NIV)

Just once, I’d like to see a sanctimonious parent in a post-divorce custody proceeding have that thrown in their face.

Of course, there are those who want to ban divorce entirely, forcing children to live with two miserable parents trapped in an unhappy marriage for the children’s own good because Jesus, so maybe I should keep the in-context Bible-quoting to a minimum.


Social Science, Intolerance, and Redheads (Oh My?)

The social sciences are, in general, easier to ignore than the harder sciences if you don’t like their conclusions (not that this stops people from ignoring inconvenient aspects of physics, chemistry, or biology.) Where social issues are concerned, our abilities to convince ourselves of whatever we already believe are rather magnificent in their scope and brazenness. Anyway, George Will apparently doesn’t like to pay attention to what social science has to say about the lack of negative impact gay people have on society. It’s not that he discounts the research that has occurred. He apparently prefers to ignore it or pretend it does not exist at all.

Nathaniel Frank at Slate offers a good analogy for Will’s basic refusal to engage on the issue:

Suppose a group of people claim that redheads can’t enter the town square because they’ll drive away commerce, badly harming the economy—and then this group gets a law passed barring redheads from public spaces. To reverse the discriminatory law, they then argue, redheads must spend however long it takes to amass definitive proof that entering the town square won’t cause harm (which is impossible since you can’t conduct research on scenarios you won’t permit). When redheads nevertheless begin to produce a growing body of research that points conclusively to the fact that their presence does not harm commerce, the law’s defenders consistently reply, “It still might; more research is needed.” Continue reading


When Conservatism Meets Empathy (UPDATED)

1146008_19639910Modern-day conservatism cannot survive a head-on collision with empathy, at least when the empathy is for a close loved one. That is really the only way to explain Senator Rob Portman’s (R-OH) about-face on same-sex marriage.

To be clear, I’m very glad that he has seen the light, so to speak. I also have no doubt that he will face severe backlash from his party’s “base,” who don’t seem to like any policy that expresses any sort of kindness towards people they dislike. So he went out on a limb here, and his specific reasons are perhaps not as important as the fact that he did it. I am less interested in why someone comes to the right conclusion as I am in supporting the fact that they got there. The reasons become important, however, when you consider how a change in tune will affect their positions on related issues. In this case, Senator Portman pretty much flat-out said that his mind was changed gradually after his son came out as gay in 2011. I assume he will continue to be a Republican darling on issues that do not affect his loved ones.

I don’t much feel like quoting from the senator’s self-serving justification for his flip-flop in the Columbus Dispatch, so I’ll quote Sylvia Nightshade, writing about it in Daily Kos:

[H]e never considered how the issue of gay marriage affects people until it affected him.  Don’t get me wrong, I’m glad he’s come over to our side (we have cookies!), but this reveals exactly why Republican politicians suck.  They don’t think about things from other people’s perspective.  They don’t have to struggle to eat, so they don’t think about what happens when they cut food stamps and people who already have too little to eat have even less.  They have retirement savings and won’t have to depend on Social Security, so they don’t think about how gutting SS effects people who depend on it to survive.  They can afford their own healthcare without any problem, so this big scary Obamacare mandate is all bad news, it can’t possibly help people who have no insurance now and just pray they don’t get sick or injured, because it doesn’t help them.  They just end up paying extra taxes for people who are lazy, right?  Because how else would you end up in a situation like that, unless you were lazy?  Because Republican politicians aren’t lazy, and they’re all well-off, so the opposite must be true–if you’re lazy you fail at life.  Thus if you’ve failed, it’s your own fault, so why should anybody else help you?  Help yourself, damnit!

Leaving aside the misuse of the word “effect,” she raises many excellent points. Much of the ideology of the modern-day Republican party derives from a near-total failure (dare I say refusal?) to understand the actual lived experiences of the people affected by their policies. Perhaps the most obvious example from the past year would be Rush Limbaugh’s treatment of Sandra Fluke, who offered expressly non-sexual reasons for women to use contraception. Limbaugh, either because he is cognitively incapable of understanding that she was not talking about sex, or because he knows that his fan base won’t care that he was wrong, ignored all of the actual words that came out of her mouth and called her a slut. Repeatedly.

Same-sex couples want to get married? Well, they are sexual deviants, conservatives know, despite the fact that they want to get married and raise families.

Meanwhile, individual Republicans declare their support for policies deemed anathema to conservatism once it affects them or a family member directly. See Dick Cheney on same-sex marriage, Nancy Reagan on stem-cell research. Compare Nancy Reagan’s position on that issue to that of Rush Limbaugh.

It is tiresome to argue these points, because the only surefire way to make the point clear, apparently, is to put the effects of their policies directly in front of their faces, where it affects someone who actually matters to them.

UPDATE (04/18/2013): Peter Miller at Vice has a good piece on this phenomenon, “Republicans Don’t Have a Ton of Empathy for Strangers.” The whole thing is worth a read, but this jumped out at me:

I’m not saying that Republicans are monsters. I’m not even saying they don’t care about other people’s kids. They probably don’t, but that’s beside the point. The point is, right-wingers of all stripes, from the feisty libertarian to the noble Santorumite, are incapable of learning from the experiences of others. They just can’t help it.

He goes on to list examples, but this really captures the phenomenon for me.

Photo credit: twitchtoo on stock.xchng.


Living in Hell


Source: Reuters, via Buzzfeed

BuzzFeed published a couple of photo sets recently about marriage equality in Washington state and elsewhere:

20 Photos That Could Change Someone’s Mind About Gay Marriage


60 Moments That Gave Me The Chills During Seattle’s First Day Of Marriage Equality

I admit that there was a time when I did not understand the marriage equality issue. I didn’t see why it was such a big deal. Quite a few people still oppose allow people to marry the consenting adult of their choice. They cite many reasons, all of them ultimately indefensible. But that’s not why I’m writing this today.

Look at the pictures at these links. Look at the people who have spent decades waiting for the society in which they live to accept their love as worthy of recognition.

Source: Meryl Schenker/ZUMAPRESS.com, via BuzzFeed

Source: Meryl Schenker/ZUMAPRESS.com, via BuzzFeed

If you can look at these pictures, and see the joy that is so much in evidence, and yet you still maintain that limiting marriage to your particular view of it is more important than their happiness, then I have nothing kind to say to you.

Honestly, I want to tell you to go to hell. But I won’t.

If you look at these faces full of love, of lifelong commitments finally brought out of the shadows to show that they are no different than what society has deemed “normal” after all, and you still believe that your world is somehow under threat, then it is clear to me that you are already living in a hell of your own making.


The America I Know

1342516_29565745Today is a victory for many people, and a defeat for almost as many. The sun rose this morning and is still shining as I write these words, so clearly the more Biblical of the warnings we heard regarding this election have not come to pass.

Right now, we have no way of knowing what the broader lessons of the 2012 presidential election will be. I can certainly hope that the reelection of Barack Obama, as much as I may find fault with his presidency, is an affirmation of what I might call (in a secular sense) the better angels of our nature. Not everyone shares my beliefs and my views about what America is, what it can be, or what it should be, but I feel as though some of those views have been affirmed by the events of the past few weeks.

America, perhaps unlike any other nation in the world, is and always has been a work in progress. The American Revolution did not end with the Treaty of Paris in 1781, nor did the many conflicts within America end at Appomattox Courthouse in 1865. The American Revolution was not just a war fought with muskets. The United States of America is the revolution, and it continues to this day. Continue reading