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Texas AG Greg Abbott issues opinion suggesting that the state constitution bars domestic partnership benefits


By Scottie Thomaston Texas state seal

The state attorney general in Texas, Greg Abbott, has issued an opinion stating that local governments are violating Texas’ constitution by offering domestic partnership benefits to same-sex couples. Texas voters passed an initiative to ban same-sex marriage in 2005, adding an anti-gay marriage amendment to the state constitution. Both before and after passage of the constitutional amendment, several cities in the state have offered domestic partnership benefits to opposite-sex and same-sex couples. Travis County has offered these benefits for sixteen years. Austin, Fort Worth, El Paso, and a school district in the state have also extended these benefits to couples.

According to reports, a state senator asked for the attorney general’s opinion last year:

Tea party-backed state Sen. Dan Patrick sought the ruling in November. The Houston Republican argued that Texas amended its constitution in 2005 to define marriage as between one man and one woman, while prohibiting government entities from recognizing anything similar to marriage.
Patrick said in a statement that Monday’s opinion ensures local communities and school districts “cannot subvert the will of Texans.”

County attorneys for Travis County are researching the opinion and they’ve said they plan to address the issue with county commissioners; lawyers for the city of Austin are doing the same. And Travis County Judge Sam Briscoe has said that the attorney general’s opinion isn’t the final word: county attorneys don’t have to follow it if they disagree with the reasoning of the opinion, and state courts get the last word on these matters either way.

The Dallas Morning News, which has posted a copy of the attorney general’s opinion, says this narrow reading of the constitutional amendment would prevent even opposite-sex couples from being recognized in a domestic partnership, and from receiving these benefits, which apparently are only reserved for married opposite-sex couples. They also have a reaction from a state equality organization:

Equality Texas, a gay rights group, has a different interpretation of the ruling, based on two sentences in the ruling that provide a large loophole for governmental entities.

The attorney general wrote, “The political subdivisions you ask about have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. “

Equality Texas argues that as long as cities, counties and school districts don’t have affidavits that create a “domestic partnership status,” then they can extend benefits to anyone in a household.

While many private businesses that offer domestic partner benefits have specific criteria and create a domestic partnership status, governmental entities should steer clear of that model, said Daniel Williams, legislative specialist for Equality Texas.

Lawyers for the city of Austin are concerned about the city’s ability to attract quality workers to the area if the state adopts this narrow interpretation of the amendment.

According to most reports, the opinion doesn’t force any action or require any cities or school districts to immediately comply with Attorney General Abbott’s view. But since the opinion is based on what the state government believes Texas courts will do when confronted with the issue, there is some force behind the memo. City and county attorneys will review the opinion in the coming weeks.

1 Comment

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