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Texas AG: Domestic partner benefits unconstitutional, Bishop Tom Brown threatens city with lawsuit

By Whitney Burbank, WhitneyB@kvia.com
Leonard Martinez
Published On: Apr 29 2013 05:02:52 PM CDT
Updated On: May 01 2013 12:20:49 AM CDT

ABC-7's Whitney Burbank reports

AUSTIN, Texas -

Texas Attorney General Greg Abbott has issued an opinion stating that local governments and school districts that offer domestic benefits to same-sex partners are violating the state constitution.

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.

The cities of El Paso, Austin and Fort Worth have offered some benefits to domestic partners. Pflugerville, outside Austin, became the state's first school district to extend similar benefits.

Patrick said in a statement that Monday's opinion ensures local communities and school districts "cannot subvert the will of Texans."

El Paso County started offering domestic partner benefits in Aug. 2012.

El Paso City Council in mid-June 2011 voted in favor of restoring the health insurance of everyone affected by a 2010 voter-approved referendum designed to rescind domestic partner benefits of City employees. The 4 to 4 tie vote was broken by Mayor John Cook's vote.

"I think what (the AG's opinion) means is that the city of El Paso and the county need to do the right thing and end domestic health benefits," said Bishop Tom Brown on Monday. "Don't make us have to sue them to do the right thing."

Brown, who spearheaded the efforts to repeal the domestic partner benefits offered by the City of El Paso, was happy about Abbott's opinion.

"We knew from the very beginning the violating the law from these benefits," said Brown. "So we're very happy and gratified the Attorney General has stood by the law."

"Fortunately, I don't take legal advice from Tom Brown," said El Paso mayor John Cook.  "The Attorney General's opinion is nothing but that - it's an opinion that doesn't have the enforcement of a court case."

When asked if he had immediate plans to the sue the city, Brown said, "I'm talking to my attorney."

Cook did not appear to be phased by the possibility of a lawsuit resulting from the AG's opinion. Cook said lawsuits come across his desk at least five times a week,  "Anybody can sue. All they have to do is file a case. Whether not any court is going to hear it based upon the AG's opinion is another story."

The City of El Paso's City Attorney released a prelimary statement regarding Abbott's opinion:

The Attorney General opinion is focused on the methodology used by the units of local government to determine eligibility and concludes that the processes do not simply confer healthcare benefits on a new class of individuals but have created a formal legal status of domestic partnership not otherwise recognized under Texas law.  

The opinion does not determine whether providing the benefits, standing alone, might create or recognize a legal status in violation of the Texas Constitution. Basically, the Attorney General is saying the criteria used to define a domestic partnership is similar to a marriage and therefore barred by Article I, section 3 of the Texas Constitution.

The Attorney General further notes there are currently two cases before the U.S. Supreme Court which may call into question the enforceability of article I, section 32, under the United States Constitution.                     

Please be advised Attorney General opinions are purely advisory in nature. 

The city attorney would not comment further until El Paso's City Council is briefed.

El Paso City Council, in the Fall of 2009, extended health coverage for domestic partners of city employees. When a local religious group, El Paso for Traditional Family Values (EPFTFV), found out about the city's decision, they petitioned to bring the issue to the voters in Nov. 2010. Voters passed EPFTFV's ordinance which asked them to endorse 'traditional family values' by extending health benefits only to city employees, their legal spouses and dependent children.

Because of the vague language of the ordinance, about a hundred unintended people were slated to lose their health insurance, too. They are elected officials, including city representatives and municipal judges; retirees who receive health insurance through another employer; and city contractors.

Some of those unintended targets, including municipal judges and retirees filed a federal suit against the city in an effort to repeal the ordinance. Federal Judge Frank Montalvo in Spring 2011 ruled that the ordinance was not unconstitutional and thus could be enforced.

Members of EPFTFV argued that the city can simply apply the ordinance only to domestic partners. However, Montalvo's ruling also warns against excluding domestic partners. "The judge said that restoring the benefits to everyon except domestic partners would be unconstitutional," said City Rep. Beto O'Rourke.

That's why city officials say they only have two choices - restore the benefits to all affected, including the domestic partners and unintended people or implement the ordinance to everyone. A now divided city council grappled with a heavy decision -- to allow more than a hundred unintended people to lose their health insurance or to rescind a voter-approved ordinance and possibly face a recall petition.

City Representatives Eddie Holguin, Jr., Carl Robinson, Emma Acosta and Ann Morgan Lilly opposed the restoration; while Rachel Quintana, Beto O'Rourke, Susie Byrd and Steve Ortega voting for the restoration. Mayor John Cook broke the tie by voting in favor of the restoration.

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