A little over two years ago, a man named James Obergefell went to the U.S. District Court in southern Ohio because the state attorney general's office would not allow him to appear on his terminally ill partner's death certificate as the surviving spouse. The two had married in Maryland, where gay marriage was legal at the time, but Ohio refused to recognize it.
Ohio Attorney General Mike DeWine would soon become an early defendant (later dismissed) in one of the most groundbreaking Supreme Court cases in history: Obergefell v. Hodges, which would legalize gay marriage in every state.
The SCOTUS ruling also allowed gay spouses to be listed as “surviving partner” on death certificates — the very reason Obergefell sued in the first place.
So it's a little confusing why Texas Attorney General Ken Paxton thinks he can refuse to recognize a gay spouse as a surviving partner on a death certificate.
On Wednesday, U.S. District Judge Orlando Garcia ordered that Paxton and interim Commissioner of the Texas Department of State Health Services Kirk Cole (aka, the Hodges equivalent in Obergefell's Supreme Court case) attend a hearing next week so Garcia can decide if they will face contempt. Garcia also clarified that, yes, James Stone-Hoskins must be recognized on his husband's death certificate as the surviving spouse, which Paxton had refused to do earlier even though Stone-Hoskins had already paid to have it changed.
So far, Paxton's apparent defense is to still question whether Texas is required to abide by the June 26 SCOTUS ruling—this time by questioning whether the ruling applies retroactively. A spokesperson for Paxton's office told the Houston Chronicle that whether the ruling is retroactive to a case like this one “is a complex legal question that must be resolved in a separate case.”
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Rebecca Robertson, legal and policy director of ACLU of Texas, said that whether the law applies retroactively “is not the question.”
“I don't think that Attorney General Paxton is making a sound legal argument,” she said, “but beyond that, I would say that it is really sad to me that our elected officials are continuing to try to find ways to avoid complying with the law when it has such real emotional, personal impact on people's lives.”
Robertson compared Texas's continual attempts to resist the gay marriage ruling to segregation supporters refusing to recognize Brown v. Board. “I was hopeful that by now we'd be through all of this,” she said.
Should the court find Paxton in contempt, the consequences are unclear. But he has more opportunities for discipline elsewhere, as he faces three felony counts for his part in an alleged securities fraud scheme.