AUSTIN — In the wake of the toppling of Roe v. Wade and with Justice Clarence Thomas urging the U.S. Supreme Court to revisit rulings on gay sex and marriage, Texas is the stage for several lawsuits dealing with LGBT rights.
Right now, a half dozen cases on everything from insurance coverage for HIV prevention to employment discrimination and same-sex marriage are wending their way through state and federal courts here. Their outcomes could radically alter rights for lesbian, gay, bisexual and transgender people in Texas and across the country.
The lawsuits all have one thing in common: former Texas solicitor general Jonathan Mitchell.
Best known as the man behind the state law that allows Texans to file civil lawsuits against people who help pregnant people get abortions, Mitchell opened up a law firm in Austin four years ago with the goal of systematically dismantling decades of court rulings he believes depart from the U.S. Constitution.
The Dallas Morning News is tracking six of his cases that originated in Texas and deal with LGBT rights. Here’s a summary of each case.
Gay Marriage
Dianne Hensley vs. State Commission on Judicial Conduct (Third Court of Appeals)
Brian Keith Umphress vs. David Hall, et al. (Northern District of Texas)
Summary: Both of these cases were brought by Texas officials with the authority to perform weddings but who do not want to offer marriages to same-sex couples because they say it violates their religious beliefs.
One case in state court, filed by McLennan County Justice of the Peace Dianne Hensely, argues that marriage officiants who are government officials should be able to recuse themselves from performing ceremonies for gay couples if the couples have a viable alternative option to be wed. The other case, in federal court and filed by Jack County Judge Brian Keith Umphress, makes a similar argument.
But the Umphress case goes further, arguing that the U.S. Supreme Court erred when it declared gay marriage bans unconstitutional in 2015. It urges the court to revisit that decision.
“There is no constitutional right to same-sex marriage,” the Umphress. “The federal judiciary has no authority to recognize or invent ‘fundamental’ constitutional rights.”
Umphress’ case is awaiting a decision from the federal appeals court. Hensley’s case is before a state appeals court in Austin.
Other actors: Chad and Dusty Fillmore of Fort Worth are also listed as lawyers for Umphress, as are lawyers from the Plano-based Christian nonprofit law firm First Liberty Institute and Jacksboro-based firm Spiller & Spiller.
Potential effects: If Mitchell wins either case, governmental officials who are marriage officiants would be able to wed only opposite sex couples. If the Umphress case proceeds, the question of same-sex marriage could again end up before the Supreme Court. In his concurring opinion in the decision overturning Roe last month, Clarence Thomas urged his fellow justices to take up the issue if a case questioning the constitutional right to gay marriage presents itself.
Insurance Mandates
John Kelley, et al., vs. Xavier Becerra (Northern District of Texas)
Summary: Plaintiffs in this federal lawsuit argue that insurers or self-insured employers should not have to cover certain kinds of preventive medical care because that would force them “to underwrite coverage that violates their religious beliefs.” The suit also targets the Affordable Care Act’s mechanisms for deciding which care private insurers must cover, arguing it gives the federal agencies and other unelected bodies undue control over decisions that should remain with Congress.
The suit specifically mentions contraception and the HIV prevention drugs known as PreP, which the plaintiffs say “facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”
The plaintiffs include Tarrant County residents Joel Starnes and John Kelley, who runs Kelley Orthodontics, and Braidwood Management, a business owned by anti-LGBT activist Steven Hotze. Mitchell is the lead lawyer representing the plaintiffs.
The case is currently sitting in front of U.S. District Court Judge Reed O’Connor, a George W. Bush appointee who has called both the Affordable Care Act and protections for transgender patients unconstitutional.
Other actors: The America First Legal Foundation, the conservative law firm founded by Donald Trump’s hardline immigration adviser Stephen Miller, is also representing the plaintiffs, as are the Fillmores.
Potential effects: If Mitchell wins, private insurers would have more power over which treatments they cover independent of federal requirements for care.
Employment Discrimination
Braidwood Management v. EEOC (Fifth Circuit Court of Appeals)
Summary: The case in federal court, filed on behalf of Hotze’s Braidwood Management and the Keller-based Bear Creek Bible Church, argues that religious employers should be able to hire and fire workers based on their sexuality and gender identity.
In 2020, the Supreme Court said Title VII’s prohibition against discrimination in the workplace based on “sex” also barred discrimination based on sexual orientation and gender identity. The plaintiffs in these cases argue faith-based organizations and companies should be exempt from these protections. Mitchell represents the plaintiffs.
A federal judge in North Texas agreed with Mitchell. The U.S. Equal Opportunity Commission, the defendant, is fighting that decision at the federal appeals court. Mitchell’s response is due Aug. 1.
Other actors: The America First Legal Foundation is also listed as a lawyer the plaintiffs.
Potential effect: If Mitchell wins, religious employers would be able to fire or refuse to hire employees based on their sexuality or gender identity
LGBT Library Books
Leila Green Little, et al. vs. Llano County (Western District of Texas)
Summary: The federal lawsuit, filed by citizens of Llano County, argues their First and Fourteenth Amendment rights were violated when local leaders pulled certain titles from the library’s child and teen sections that they deemed “pornographic.”
More titles were moved or removed after Rep. Matt Krause, R-Fort Worth, asked school districts to audit the books on their shelves, which one Llano library board member described as the “16- page list of CRT and LGBTQ book[s].” The titles included “Being Jazz: My Life as a (Transgender) Teen” by Jazz Jennings and “Spinning,” a coming out and coming of age story by Austin-based illustrator and writer Tillie Walden.
The plaintiffs also say the local leaders violated state open meetings rules. The case is currently sitting in front of U.S. District Court Judge Robert Pitman, an Obama appointee. Mitchell is representing several of the local Llano leaders.
Other actors: Texas Attorney General Ken Paxton has filed a motion to intervene on behalf of the state, which the plaintiffs oppose. Several other lawyers are also representing some of the same officials, as well as other defendants, as Mitchell.
Potential effects: If they win, the plaintiffs could force local Llano leaders to replace titles they pulled from library shelves and discourage similar efforts in future.
‘Save Chick-fil-A’
Patrick Von Dohlen, et al. vs. city of San Antonio (438th District Court in Bexar County)
Summary: This state lawsuit, filed by a handful of would-be Chick-fil-A customers, argues San Antonio violated a state’s so-called Save Chick-fil-A law by booting the fast food chain Chick-fil-A from the local airport based on its charitable donations to Christian groups that oppose LGBT rights. The law, which Gov. Greg Abbott signed in 2019, prohibits governmental entities from taking “adverse actions” against a business or person for their contributions to or memberships in religious organizations, and allows citizens to sue over apparent violations.
In April, the Texas Supreme Court sided with the city, saying the plaintiffs didn’t have enough proof of a violation of the law, and sent the case back to the trial court. Mitchell represents the plaintiffs who sued the city. Mitchells plans to file an amended petition in the San Antonio trial court.
Other actors: Abbott, several GOP lawmakers, America First Legal, and openly anti-LGBT group the Texas Pastor Council all filed friend of the court briefs on behalf of Mitchell’s clients. The Fillmores are also listed as lawyers for the plaintiffs.
Potential effects: While supporters of the “Save Chick-fil-A” law said it was written to uphold religious freedom, advocates for the LGBT community called it a thinly veiled attempt to justify discrimination in the name of faith. If the plaintiffs win, the law will have survived its most serious challenge in court and advocates worry it could embolden other citizens to bring similar suits.
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