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Texas judge blocks family, medical leave benefits for same-sex couples in four states

A federal judge in Texas has temporarily blocked federal rules that would have provided Family and Medical Leave Act (FMLA) benefits to same-sex couples in Texas. But the Supreme Court will make the final decision.

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    Suzanne Bryant, an adoption attorney who was recently granted the first same-sex marriage license in Texas since a 2005 constitutional amendment made it illegal, visits state Rep. Jessica Farrar's office as part of a lobbying effort by LGBT rights group Equality Texas to end discrimination based on sexual orientation and gender identity at the State Capitol on Monday in Austin, Texas. While Bryant and other members of Equality Texas were lobbying state officials, a rally to protect the amendment they want reversed was attended by conservative activist groups on the south steps of the State Capitol.
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A federal judge in Texas has temporarily blocked federal rules that would have provided Family and Medical Leave Act (FMLA) benefits to same sex couples in Texas.

US District Judge Reed O’Connor granted a preliminary injunction on Thursday to stay the expansion of the definition of “spouse” under the Family and Medical Leave Act to include gay couples.

“Unlike the previous agency rules defining ‘spouse’ according to the employee’s state of residency, this final rule bases it upon the jurisdiction in which the marriage was celebrated,” Judge O’Connor wrote in a 24-page order released Thursday evening, the Austin American-Statesman reported.

“Such agency action improperly preempts state law forbidding the recognition of same-sex marriages.”

Since the United States Supreme Court ruling of June 2013, the federal government has recognized the marriages of same-sex couples performed in states that have legalized the practice. That also applies to couples who live in states that do not recognize their unions but were married in another state that does.

Texas is one of about a dozen states that do not recognize same-sex marriage, and some same-sex couples residing in Texas have opted to marry outside of the state as a result. The judge’s decision on Thursday prevents these couples from receiving the benefits afforded heterosexual married couples until the issue is resolved through legal channels. At the end of the day, the Supreme Court will make the final decision, lawmakers say. 

The FMLA permits eligible employees to take unpaid, job-protected leave for specified family and medical reasons such as childbirth, adoption, family emergencies, or serious medical conditions. The new rule would also direct state agencies to grant FMLA to all married couples, regardless of their state of residency.

But rather than allow the change to extend FMLA benefits to same-sex couples in the state, Texas Attorney General Ken Paxton sued the US Labor Department March 18 to block implementation of the change, saying that it would violate his state's sovereignty. 

Texans voted for a constitutional ban on same-sex marriage 10 years ago, and Mr. Paxton argued that complying with the new regulations would have forced state agencies to choose between violating federal rules or the 2005 gay-marriage ban in the Texas constitution. 

“Texans have clearly defined the institution of marriage in our state, and attempts by the Obama administration to disregard the will of our citizens through the use of new federal rules is unconstitutional and an affront to the foundations of federalism,” Paxton said, The Dallas Morning News reported

Meanwhile, three other states, Arkansas, Louisiana, and Nebraska, also joined the lawsuit.

Gay rights advocates in Texas have criticized the suit.

“It appears Attorney General Paxton has decided to follow his predecessor’s practice of wasting taxpayer money by filing hopeless politically motivated lawsuits against the federal government that are doomed to fail,” Neel Lane, an attorney representing gay couples in a Texas marriage equality case, told The Dallas Morning News.

“In this case, Paxton is persecuting law-abiding citizens who simply happen to be gay or lesbian,” he said. The civil rights battles waged in the 1960s proved that such a “tactic may work in the short term, but eventually we will all condemn his actions for what they are."

But on Thursday, O’Connor agreed with Paxton that the change would violate Texas state law and opted to grant the stay.

In his remarks, the judge argued that the suit serves the public's "abiding interest" in protecting state sovereignty from "federal encroachment," Bloomberg reported.

However, O’Connor also noted that the legal landscape is changing and that the Supreme Court will ultimately make the final call.

“Without a doubt, the questions involved in this action are serious and must be resolved by the proper authority. The Supreme Court will soon address these issues and provide much needed clarity for the lower courts,” he wrote.

The constitutionality of Texas’s gay marriage ban is currently being considered at the federal level. The Texas ban on gay marriage was overturned by a federal judge last year, but the ruling is being held in abeyance until the 5th US Circuit Court of Appeals has an opportunity to rule on the case. The Supreme Court is expected to rule in June on whether states can ban gay couples from getting married. 

In the meantime, some Texas lawyers have advised married, same-sex couples to take the necessary steps to protect their families legally.

“While out-of-state marriage confers a number of federal benefits on same-sex couples, state law still precludes access to many important protections that are available to opposite-sex couples. Thus, same-sex couples living in Texas must take additional legal measures by drafting wills, powers of attorney, cohabitation agreements, etc. in order to obtain some of these protections,” Attorney Elizabeth Brenner wrote on her website

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