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Texas Judge Rules Same-Sex Marriage Ban Unconstitutional

By Chuck Lindell, Austin American-Statesman (TNS)

AUSTIN, Texas — Travis County Probate Judge Guy Herman ruled Tuesday that the Texas ban on same-sex marriage was unconstitutional, but the county will not issue marriage licenses to gay couples, at least for now.

Herman ruled as part of an estate fight in which Austin resident Sonemaly Phrasavath sought to have her eight-year relationship to Stella Powell deemed to have been a common-law marriage. Powell died last summer of colon cancer.

Travis County Clerk Dana DeBeauvoir said she will be conferring with Herman and county lawyers to determine the impact of the ruling.

“I am scrambling, trying to find out if there is anything I can do. Right now, I think it’s no, but we are checking,” said DeBeauvoir, who in the past has said that she is ready to begin distributing marriage licenses to same-sex couples as soon as allowed by the courts.

The lawyer for the siblings who opposed Phrasavath’s claim said no decision has been made on whether to appeal.

Attorney General Ken Paxton declined an offer to be party to the case and thus is not in a position to appeal.

Herman’s ruling came after an hourlong hearing in the Travis County Courthouse. Phrasavath challenged the constitutionality of the prohibition on gay marriage as a first step toward establishing her relationship as a common-law marriage.

Phrasavath and Powell began living together in Austin shortly after Phrasavath proposed in 2007, leading to a marriage ceremony that, though not recognized under Texas law, was performed one year later by a Zen priest in Driftwood southwest of Austin.

Travis County courts became involved after Powell died without a valid will in June, eight months after she was diagnosed with colon cancer, leading to a legal fight over her estate between Phrasavath and two of Powell’s siblings.

Photo: Bill & Heather Jones via Flickr

Rick Perry Criminal Case Can Proceed, Judge Rules

By Chuck Lindell, Austin American-Statesman (TNS)

AUSTIN, Texas — A state district judge refused to throw out the criminal charges against Texas Gov. Rick Perry, ruling Tuesday that special prosecutor Michael McCrum had been properly appointed to the case.

Perry’s legal team argued that the charges must be voided because McCrum did not properly take his oath of office when he began working on the governor’s case, negating every act performed over the past 15 months —  including the indictment accusing Perry of abusing the powers of his office.

Senior District Judge Bert Richardson disagreed.

“This court concludes that Mr. McCrum’s authority was not voided by the procedural irregularities in how and when the oath of office … was administered,” Richardson’s order said.

What’s more, Richardson ruled, Perry’s lawyers waited too long to raise their objections to the way McCrum was sworn in more than a year ago.

Richardson has yet to rule on a separate, broader challenge arguing that Perry’s charges should be tossed out because they were based on unconstitutional state laws and because they improperly criminalize politics and limit gubernatorial power. A ruling on that issue is still several weeks away.

A Travis County grand jury indicted Perry in August on felony charges of abuse of official capacity and coercion of a public servant. The indictment resulted from his threat last year to Travis County District Attorney Rosemary Lehmberg to resign after her April 2013 drunken driving conviction or lose $7.5 million for the Public Integrity Unit housed in her office.

Lehmberg refused to step down, and Perry carried out the threat by using his line-item veto authority in the state budget.

Photo: Denise Flores via Flickr

Supreme Court Bans Abortion Regulation From Taking Place In Texas

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas — The U.S. Supreme Court on Tuesday barred Texas from enforcing an abortion regulation that had left only seven clinics operating in the state.

The late-evening ruling means recently closed abortion clinics can reopen, at least temporarily, as a divided Supreme Court blocked Texas from requiring abortion facilities to meet the same standards as ambulatory surgical centers.

The on-again, off-again regulation was a key part of House Bill 2, passed in 2013 after two contentious special legislative sessions that featured late-night protests and a filibuster by Democratic Sen. Wendy Davis, that launched her gubernatorial campaign against Republican Greg Abbott, the attorney general who is defending HB 2 in court.

“The U.S. Supreme Court gave Texas women a tremendous victory today,” said Nancy Northup, president of the Center for Reproductive Rights. “Tomorrow, 13 clinics across the state will be allowed to reopen and provide women with safe and legal abortion care in their own communities.”

Previously, however, abortion providers have testified that restaffing and reopening clinics can be difficult, and it was unclear late Tuesday how many — and how rapidly — closed facilities would be returned to operation.

The surgical-center requirement, set to take effect Sept. 1, was ruled unconstitutional on Aug. 29 by U.S. District Judge Lee Yeakel, who said the regulation was designed to limit access to abortion by shutting down clinics, not to improve women’s health as legislators backing it had argued.

If allowed to be enforced, Yeakel said, the rule would leave no abortion clinics operating in the state south and west of San Antonio — resulting in 1.3 million reproductive-age women living more than 100 miles from an abortion provider, with about 750,000 women more than 200 miles from one.

Abbott filed a two-step appeal to the 5th U.S. Circuit Court of Appeals seeking to overturn Yeakel’s ruling and to allow Texas to enforce the regulation while the appeal continues.

On Oct. 2, the appeals court agreed to let Texas enforce the regulation, forcing all clinics to close except for seven that were already licensed as ambulatory surgical centers in Austin, San Antonio, Dallas, Fort Worth and Houston. An eighth surgical center is under construction in San Antonio.

The appeals court still must rule on the constitutionality of the surgical center regulation.

On Tuesday, responding to an emergency motion from abortion providers, the U.S. Supreme Court reinstated Yeakel’s injunction banning Texas from enforcing the regulation.

The Supreme Court’s two-paragraph ruling didn’t elaborate on the court’s reasons, though the order noted that Justices Antonin Scalia, Samuel Alito and Clarence Thomas would have allowed Texas to enforce the provision.

Abortion opponents were disappointed in the ruling but expressed confidence that the 5th Circuit would eventually uphold the surgical-center regulation.

When the 5th Circuit issued its 2-1 ruling allowing Texas to enforce the regulation, the majority noted that Texas was likely to succeed in its defense of HB 2, said Emily Horne, legislative associate for Texas Right to Life.

“We are obviously stunned by the decision,” Horne said of Tuesday’s action. “But the Supreme Court didn’t address any of the (law’s) merits, and the 5th Circuit did, so that gives us a lot of hope.”

Davis praised Tuesday’s ruling.

“The court recognized that these deeply personal decisions should be made by a woman with the guidance of her family and her doctor,” Davis said. “While politicians like Greg Abbott support making abortion illegal even in cases of rape and incest, I’m thankful that women can continue to make their own personal decisions.”

Abbott’s campaign referred questions to the attorney general’s office, which issued a statement vowing to continue defending HB 2, just as the agency defends “all state laws when they are challenged in court.”

Tuesday’s Supreme Court ruling also barred Texas from enforcing a second HB 2 provision — requiring abortion doctors to gain admitting privileges at a nearby hospital — as applied to clinics in El Paso and McAllen.

Hospitals had refused to grant privileges to doctors from the two clinics, prompting Yeakel to rule that the regulation imposed an improper burden on access to abortion by requiring women in West Texas and the Rio Grande Valley to travel hundreds of miles to the nearest Texas abortion facility.

In a previous legal challenge to HB 2, a three-judge 5th Circuit panel upheld the admitting-privileges requirement and a separate provision regulating abortion-inducing drugs.

Last week, the full appeals court declined to review that decision in a 12-3 ruling, and abortion providers are expected to ask the Supreme Court to toss out the admitting-privileges requirement for all clinics.

HB 2 also banned abortions after 20 weeks gestation. That provision wasn’t challenged in court and went into effect Sept. 1, 2013.

Action will return to the 5th U.S. Circuit Court of Appeals, where lawyers for Texas will try to overturn a lower-court ruling that found the surgical-center regulation to be unconstitutional. Texas cannot enforce the regulation while the appeal proceeds.

AFP Photo/Mark Wilson

Court Hands Texas Abortion Providers Another Setback

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas — A federal appeals court Thursday declined to reconsider a March decision that allowed Texas to require abortion doctors to gain admitting privileges in a nearby hospital.

Abortion providers had asked the full 5th U.S. Circuit Court of Appeals to review the unanimous decision by a three-judge panel, arguing that some doctors have been unable to comply, forcing clinics to close and placing an unconstitutional burden on women seeking an abortion.

That request was denied, without elaboration, 12-3.

However, the order included an unusually long and forceful 62-page dissent by Justice James Dennis, who said the court’s original decision to allow the admitting privileges rule “flouts” standards established by the U.S. Supreme Court to determine when abortion regulations pose an undue burden on women.

“If not overruled,” Dennis wrote, “the panel’s sham undue burden test will continue to exert its precedential force in courts’ review of challenges to similar types of recently minted abortion restrictions in Texas, Louisiana and Mississippi,” the states in the 5th Circuit’s district.

“A majority of this court effectively ensures that laws, like the Texas law challenge here … will be given only a modicum of scrutiny, essentially giving states carte blanche with respect to the regulation of the right to an abortion,” he wrote.

The original ruling, Dennis said, “warrants correction by the Supreme Court.”

Abortion providers — including Planned Parenthood, seven abortion clinics and three abortion doctors — are expected to appeal to the Supreme Court, their last recourse to challenge the admitting privileges regulation and another provision, also upheld by the 5th Circuit, that limited how abortion-inducing drugs are dispensed.

The case was separate from a second challenge to Texas abortion regulations contained in House Bill 2, passed in 2013 in the second of two contentious special legislative sessions. That challenge, focusing on requirements that abortion clinics meet the same standards as ambulatory surgical centers, is pending before the 5th Circuit.

Last week, the appeals court allowed Texas to enforce the surgical-center requirement while justices weigh the constitutionality of the rule, leaving only seven abortion clinics operating in Texas. Abortion providers responded by asking the U.S. Supreme Court to bar Texas from enforcing the surgical-center rule, which would allow more than a dozen clinics to reopen during the appeals process.

Both HB 2 cases revolve around the “undue burden” test established in 1992 by the U.S. Supreme Court in Planned Parenthood v. Casey.

The Casey decision reaffirmed the right to an abortion but also recognized that states have a legitimate interest in protecting the health of women and the life of the fetus. To strike a balance between the competing interests, the Casey ruling said states cannot adopt regulations that unduly burden a woman’s ability to choose an abortion.

In its March decision upholding HB 2’s admitting privileges regulation, the three-judge panel said abortion providers failed to prove that forcing some clinics to close would sufficiently limit access to abortion.

“More than 90 percent of the women seeking an abortion in Texas would be able to obtain the procedure within 100 miles of their respective residences even if HB 2 went into effect,” the panel ruled. “The regulation will not affect a significant — much less ‘large’ — fraction of such women.”

In Thursday’s dissent, Dennis wrote that the three-judge panel “failed to weigh the magnitude of the burden … against the strength of the state’s justification for the law.” Evidence showed that having admitting privileges does not improve medical care and thus cannot justify the increased burden on women, he wrote.

All three dissenters — including judges James Graves Jr. and Gregg Costa — were appointed by Democratic presidents.

Ten of the 12 justices who declined to reconsider the original ruling were nominated by Republicans.

Photo: Glenn~ via Flickr

Texas Judge Criticizes Colleagues For Jeopardizing Rights Of Non-English Speakers

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas—In an unusually blunt condemnation, Texas Court of Criminal Appeals Judge Elsa Alcala rebuked her court Wednesday for endangering the rights of non-English speakers and for being “a stumbling block in the path toward a better criminal-justice system.”

The case that riled Alcala, and two fellow judges who joined her fiery dissenting opinion, involved Irving Garcia, who is serving a 20-year prison sentence for fatally shooting a man about a dozen times outside a McAllen shopping center in 2010.

Garcia, a Spanish speaker who doesn’t understand English, declined the trial court’s offer of an interpreter on the advice of his lawyer, who spoke Spanish and briefly summarized the testimony of 13 English-speaking witnesses for his client.

The problem, Alcala wrote, was that the trial judge and defense lawyer didn’t fully advise Garcia of his constitutional right to an interpreter, impeding his ability to confront the witnesses against him. Garcia, 25, should be granted a new trial with a full-time interpreter, she concluded.

Instead, six members of the court determined that Garcia’s murder conviction was proper. While defendants must be provided an interpreter if they cannot understand English, they can waive that right if desired, the majority determined.

Alcala, however, argued that Garcia’s lawyer, not named in the opinion, declined an interpreter during an off-the-record meeting at the desk of District Judge Bobby Flores, who failed to question Garcia about his choice. Had he asked, Alcala wrote, Flores would have learned that Garcia’s decision had been coerced by his lawyer, who claimed an interpreter would be a distraction that would hinder his ability to provide quality representation.

Defendants cannot waive a constitutional right through coercion, Alcala said.

By failing to uphold Garcia’s right to understand the legal proceedings against him, she added, the majority delivered a “smoke-and-mirrors” ruling that jeopardized the rights of an estimated 2 million people in Texas who, like Garcia, don’t speak English.

“This court will continue to constitute the stumbling block in the path toward a better criminal-justice system in Texas until a majority of the judges on this court consistently enforce the federal constitutional right to an interpreter,” Alcala wrote.

Dissenting opinions are common on the state’s highest criminal court, and at times the author’s frustration leaks into print, such as when Judge Michael Keasler wrote in 2012 that he was “baffled and appalled” when the court granted Travis County baby sitter Cathy Lynn Henderson a new trial for the death of an infant in her care.

But Alcala’s condemnation of her fellow judges was notably stark, beginning with a statement that in the quest to ensure fair trials for all, Texas seems to take one step back for every two steps forward.

“The court’s holding in this case represents that step back and affects not only the Hispanic population in Texas, but all Texans who expect that their state’s courts will consistently abide by the requirements of the U.S. Constitution,” she wrote.

Since she was appointed to the court by Gov. Rick Perry three years ago, Alcala has shown an independent streak and a willingness to question court practices and precedents. She is also the only Latino judge on the court, and during her swearing-in ceremony, she marveled that an “impoverished, orphaned Mexican-American girl can, through public education and the grace of God, become a jurist on one of the state’s highest courts.”

Wednesday’s opinion was the appeals court’s second round of rulings on Garcia’s request for a new trial.

In April, the court denied the request in a 6-3 ruling that included a more measured dissent by Alcala.

Garcia’s lawyers had responded by asking the court to reconsider its ruling — a common but rarely granted request that was denied Wednesday, also on a 6-3 ruling, prompting Alcala’s blistering dissent, which was joined by Judges Cathy Cochran and Cheryl Johnson.

Photo: George Olcott via Flickr

NRA Rips ‘Open Carry’ Rallies In Texas

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas — In a blistering criticism of “open-carry” rallies in Texas, the National Rifle Association said gun enthusiasts who bring loaded rifles and tactical long guns into restaurants and public places are putting the pro-gun movement at risk with “downright weird” behavior.

The gun-toting gatherings are scary, thoughtless and counterproductive “hijinx,” causing alarmed bystanders to question the motives of gun advocates and potentially generating support for restricting gun rights, according to a statement on the NRA Institute for Legislative Action website.

“Using guns merely to draw attention to yourself in public not only defies common sense, it shows a lack of consideration and manners. That’s not the Texas way. And that’s certainly not the NRA way,” said the post, titled “Good citizens and good neighbors: The gun owners’ role.”

The statement, posted Friday but distributed Monday, drew a pointed response from open-carry advocates.

“The more the NRA continues to divide its members by attacking some aspects of gun rights instead of supporting all gun rights, the more support it will lose,” Open Carry Texas said on its Facebook page, adding that several members cut up their NRA lifetime membership cards in protest, posting photos of the result.

Open Carry Texas said the NRA concerns were overblown, noting that gun-toting members have begun asking permission before entering a business and typically send an unarmed person to alert customers and staff in advance.

“It is unfortunate that an organization that claims to be dedicated to the preservation of gun rights would attack another organization fighting so hard for those rights in Texas,” Open Carry Texas said.

Texas law allows gun owners to openly carry rifles. Concealed handguns also are allowed with a permit, but openly displayed sidearms are not legal in most situations.

Advocates in Texas for allowing holstered handguns — a practice most states permit — have drawn attention by bringing long guns to demonstrations in restaurants, coffee shops and store parking lots. A noon parade down Austin’s East Sixth Street turned heads last March during the South by Southwest event.

The goal, advocates say, is to educate Texans about the right to carry firearms and show that armed and responsible gun owners are not a public threat.

But the events have drawn fire from gun-control groups, particularly Moms Demand Action for Gun Sense in America, which said patrons and employees should not be forced to determine if an armed group is dangerous or law abiding.

“Assessing an (armed) person’s intent would be difficult for law enforcement,” said Stephanie Lundy with Moms Demand Action’s Texas chapter. “It’s certainly not something that my teenager should be asked to do. It’s also not something that I as a civilian should be asked to do.”

After recent open-carry gatherings in several Texas restaurants, Moms Demand Action pressed corporate officials to create a national policy banning guns in all outlets. Officials with Chili’s, Jack in the Box, Chipotle and Sonic responded by asking gun owners to leave their weapons at home but stopped short of an outright ban.

A Chipotle spokesman, noting that a recent gathering caused “many of our customers anxiety and discomfort,” said company officials “are respectfully asking that customers not bring guns into our restaurants, unless they are authorized law enforcement personnel.”

The statement from the NRA, the nation’s largest gun-rights group and a political powerhouse, showed that not all gun advocates are sold on the tactic as well.

Bringing long guns into restaurants is “downright weird and certainly not a practical way to go normally about your business while being prepared to defend yourself,” the NRA statement said.

“Just because something can be done doesn’t mean it should be done,” the statement said. “If we exercise poor judgment, our decisions will have consequences … such as turning an undecided voter into an anti-gun voter because of causing that person fear or offense.”

But Jason Orsek, vice president of Come and Take It Texas, said organized open-carry rallies will continue. Armed members of the group were in downtown Austin last Saturday distributing food, clothes and toiletries to several hundred homeless people — and like most rallies, the event was held without incident, he said.

“It looks like the NRA caved into pressure from anti-gun groups,” Orsek said. “I’m of the opinion that you either believe in and support the Second Amendment or you don’t. You don’t pick and choose parts of it. The Second Amendment’s very clear.”

Elvert Barnes via Flickr

Texas Judge Orders Hospital To Reinstate Two Abortion Doctors

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas — A state judge Thursday ordered a Dallas hospital to temporarily reinstate admitting privileges that had recently been revoked for two abortion doctors.

University General Hospital Dallas sent identical letters to the doctors last month saying their admitting privileges had been revoked because their abortion practices were “disruptive to the business and reputation” of the hospital.

The doctors filed suit Thursday, arguing that the revocation violated a state law that bars hospitals from discriminating against doctors based on whether they perform or refuse to perform abortions. Several hours later, Associate District Judge Sheryl Day McFarlin agreed, granting a temporary restraining order requiring the hospital to reinstate the privileges.

A trial, set for April 30, will determine if the order should continue for the hospital, a publicly owned acute-care facility in southwest Dallas.

The lawsuit, which did not seek money, claimed abortion opponents demanded that the hospital revoke the privileges for Dr. Lamar Robinson, with Abortion Advantage, and Dr. Jasbir Ahluwalia, with the Routh Street Women’s Clinic, or face an April 1 protest.

On March 31, the hospital’s new chief executive officer, Chuck Schuetz, revoked the privileges and “assured protesters that UGHD would be ‘pro-life’ and would not associate with those who provide abortions,” the lawsuit said.

Under the state’s stricter abortion law that went into effect last year, doctors cannot perform abortions unless they have admitting privileges at a hospital within 30 miles of their clinic.

Both doctors have had to cancel “dozens of appointments each day” since receiving the letters, the lawsuit said. While Routh Street Women’s Clinic has been able to continue with temporary help from a part-time doctor, Abortion Advantage had stopped offering the procedure, the suit said.

Photo from Flickr Commons/World Can’t Wait

Texas Judge Orders Hospital To Reinstate Two Abortion Doctors

By Chuck Lindell, Austin American-Statesman

 

AUSTIN, Texas — A state judge Thursday ordered a Dallas hospital to temporarily reinstate admitting privileges that had recently been revoked for two abortion doctors.

University General Hospital Dallas sent identical letters to the doctors last month saying their admitting privileges had been revoked because their abortion practices were “disruptive to the business and reputation” of the hospital.

The doctors filed suit Thursday, arguing that the revocation violated a state law that bars hospitals from discriminating against doctors based on whether they perform or refuse to perform abortions. Several hours later, Associate District Judge Sheryl Day McFarlin agreed, granting a temporary restraining order requiring the hospital to reinstate the privileges.

A trial, set for April 30, will determine if the order should continue for the hospital, a publicly owned acute-care facility in southwest Dallas.

The lawsuit, which did not seek money, claimed abortion opponents demanded that the hospital revoke the privileges for Dr. Lamar Robinson, with Abortion Advantage, and Dr. Jasbir Ahluwalia, with the Routh Street Women’s Clinic, or face an April 1 protest.

On March 31, the hospital’s new chief executive officer, Chuck Schuetz, revoked the privileges and “assured protesters that UGHD would be ‘pro-life’ and would not associate with those who provide abortions,” the lawsuit said.

Under the state’s stricter abortion law that went into effect last year, doctors cannot perform abortions unless they have admitting privileges at a hospital within 30 miles of their clinic.

Both doctors have had to cancel “dozens of appointments each day” since receiving the letters, the lawsuit said. While Routh Street Women’s Clinic has been able to continue with temporary help from a part-time doctor, Abortion Advantage had stopped offering the procedure, the suit said.

AFP Photo/Mandel Ngan

Civil Rights Act’s Gains Are Being Undermined, Bill Clinton Says

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas — Even as he praised the Civil Rights Act as a bold step in the quest to build a more perfect union, former President Bill Clinton cautioned Wednesday that the historic law’s gains are being threatened by a rising tide in the politics of exclusion.

Closing the second day of the three-day Civil Rights Summit, Clinton lauded the “pivotal, brilliant leadership” of President Lyndon B. Johnson, who ignored cautious advisers and cajoled a balky Congress into passing a law that continues to change the country for the better.

“He sensed opportunity, and he felt an obligation,” Clinton told a packed audience at the LBJ Presidential Library.

Johnson’s achievement reminded Clinton of another president, Abraham Lincoln, who toiled to push Congress into action on another landmark, the 13th Amendment, which abolished slavery.

Like Lincoln, he said, “Johnson’s leadership embodies the power of presidency to redeem the promise of America.”

But Clinton warned that the Civil Rights Act of 1964 and the Voting Rights Act of the following year, which sought to improve participation in the political process, are being undermined by voter ID laws and efforts to restrict access to the ballot box.

“Any time you erect a barrier to the political participation that disproportionately affects people based on race, based on physical capacity or income … it undermines the spirit of the Civil Rights Act and the Voting Rights Act,” he said to applause.

Clinton also blasted the 2013 U.S. Supreme Court decision that overturned a key section of the Voting Rights Act, which had required states with a history of racial discrimination, including Texas, to seek federal approval for any change that affects voting.

“Here we’ve been working for 50 years, first to open registration to everyone, and to be responsible to vote, and all of a sudden there are all these new barriers to voting,” he said. “We all know what this is: This is a way of restricting the franchise after 50 years of expanding it.”

It is ironic, Clinton said, that the country is so deeply divided shortly after the human genome was mapped, revealing that every person is “genetically 99.5 percent the same. Why are we risking the future of this great experiment, the wide horizons that Lyndon Johnson and his colleagues opened to us, while spending 99.5 percent of our time on that half-percent that is different?”

Clinton began his half-hour speech on a more positive vein, noting that his presidency and those of Jimmy Carter and Barack Obama were made possible by the Civil Rights Act.

“We forget sometimes in our busy lives how, in the long sweep of history, that this all happened rather quickly,” Clinton said, noting that Johnson was born only 43 years after the Civil War’s end. “He was a child of the South who … wielded his enormous political skills and made them work for ordinary people who had been disempowered.

“Fifty years ago, we were two decades past the great victory won by the United States and its allies in World War II, a long and bloody struggle for freedom throughout the world. Yet two decades later, millions of our brothers and sisters — many of whom had themselves fought in that war — were still denied basic freedoms,” Clinton said.

Photo: veni markovski via Flickr.com

Texas Judge Blocks 2 Executions In Drug-Source Fight

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas — A federal judge in Houston blocked Texas from performing two pending executions, ruling Wednesday that defense lawyers cannot properly challenge the planned use of a new batch of pentobarbital without knowing the source of the lethal drug.

Texas Attorney General Greg Abbott quickly appealed the ruling to the 5th U.S. Circuit Court of Appeals.

State prison officials are trying to keep the name of the drug supplier a secret, saying similar disclosures have led to threats of violence against pharmacies that sell drugs for use in executions.

Lawyers for the death row inmates — Tommy Sells, scheduled to be executed Thursday, and Ramiro Hernandez-Llanas, set for an April 9 execution — argued that they cannot verify whether the lethal drug is “tainted, counterfeited, expired or compromised” without knowing the source of the pentobarbital and what tests have been performed to assess its efficacy.

U.S. District Judge Vanessa Gilmore agreed with the defense lawyers, granting a preliminary injunction to block the executions.

“Texas law does not specify what substance will be used in carrying out lethal injections, but federal law requires that any protocol or method used cannot violate the constitutional prohibition on cruel and unusual punishment,” Gilmore wrote in a five-page order.

“Until plaintiffs have full disclosure of the product with which Texas will cause their death, they cannot fully develop a challenge to its process,” she wrote.

Gilmore chided Texas lawyers for providing her with the “last-minute disclosure” of a redacted lab report said to verify the potency of the pentobarbital. The redactions, however, excluded important information, Gilmore wrote, including the source of the drug, what tests were performed, who did the testing and “numerous other details essential to assessing the quality and efficacy of the drug.”

Gilmore also ordered state officials to disclose — under seal, and therefore not available for public inspection — information about the pentobarbital, including its supplier, and an un-redacted report of the lab tests on the drug.

AFP Photo/Caroline Groussain

Judge Overturns Texas Ban On Gay Marriage

By Chuck Lindell, Austin American-Statesman

AUSTIN, Texas — The Texas ban on same-sex marriages is unconstitutional, a federal judge in San Antonio ruled Wednesday.

U.S. Judge Orlando Garcia issued an injunction barring Texas from enforcing a law and constitutional amendment that prohibit same-sex couples from marrying and ban the state from recognizing same-sex marriages that were legally performed in other states.

There will be no rush to the altar in Texas, however. Garcia stayed his ruling, delaying its implementation while Texas officials appeal to the 5th U.S. Circuit Court of Appeals, which oversees courts in Texas, Louisiana and Mississippi.

“Without a rational relation to a legitimate government purpose, state-imposed inequality can find no refuge in our United States Constitution,” Garcia, appointed by President Bill Clinton in 1994, said in a 48-page order.

Garcia joins federal judges who have voided gay-marriage bans in Utah, Oklahoma and Virginia, ruling that the prohibitions unfairly demeaned and stigmatized gay couples in violation of the U.S. Constitution’s guarantee of equal protection under the law. Those rulings also were stayed while appeals continue.

In narrower rulings along the same equal-protection lines, U.S. judges recently ordered Kentucky to recognize same-sex marriages legally performed in other jurisdictions and forced Ohio to recognize out-of-state same-sex marriages on death certificates.

Lawsuits are pending in about 20 states that ban gay marriage, including Michigan, where a federal court trial is underway over a constitutional amendment that limits marriage to opposite-sex couples.

Seventeen states and the District of Columbia allow same-sex marriages.

In Texas, Garcia rejected arguments from state Attorney General Greg Abbott’s office, which argued that each state has the right to define marriage as best fits the traditions of its citizens, that traditional marriage best supports the state’s interest in promoting responsible procreation and child rearing, and that same-sex marriage is a recent innovation that cannot be seen as a fundamental right that must be protected by the courts.

The Texas ban on same-sex marriage, passed into law in 2003 and added to the Texas Constitution by 76 percent of voters in 2005, also is being challenged by two federal lawsuits in Austin that are in the early stages of litigation.

The San Antonio lawsuit was filed by Cleopatra De Leon and Nicole Dimetman of Austin, who want Texas to recognize their 2009 marriage in Massachusetts, and Vic Holmes and Mark Phariss of Plano, who have been together for 16 years and wish to be married in Texas.

Like the legal challenges in other states, their lawsuit relied heavily on last summer’s U.S. Supreme Court ruling that overturned the federal Defense of Marriage Act, enacted in 1996 to limit marriage, under federal law, to the union of one man and one woman.

Writing for the 5-4 majority in U.S. v. Windsor, Supreme Court Justice Anthony Kennedy said the law, known as DOMA, violated the core constitutional principle that people are entitled to equal protection under the law.

DOMA’s main purpose was to demean and stigmatize homosexuals, relegating them to second-class status and humiliating the children they are raising, Kennedy wrote, concluding that there can be no legitimate government purpose for a law intended to “disparage and to injure.”

In a blunt dissent, Justice Antonin Scalia warned that the ruling would lead to inevitable attacks on similar state laws.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.

The first lawsuits were filed weeks later.

AFP Photo/Scott Olson