Texas AG Sues to Deny Family Leave to Same-Sex Spouses

Texas Attorney General Ken Paxton wants his state and others to be able to deny federally guaranteed family and medical leave benefits to married same-sex couples.

Paxton filed a lawsuit in federal court Wednesday challenging the Obama administration on a new rule making time off under the Family and Medical Leave Act available to all legally married same-sex couples, even if the state where they live doesn't recognize their marriage, the Washington Blade reports.

The act guarantees 12 weeks of unpaid, job-protected leave for an employee who has a serious illness or needs to care for a spouse, child, or parent (26 weeks if the family member is in the military and has a serious illness or injury). Both public and private employers have to provide the leave, with the exception of those that have fewer than 50 employees.

The FMLA, enacted in 1993, has historically recognized spouses on the basis of whether the couple's state of residence recognizes their marriage. A new Labor Department rule changes that; as long as the couple's marriage was legal in the state where it took place, they are spouses for the purposes of the FMLA. The rule takes effect March 27.

Paxton claims the new rule is a violation of Texas's state sovereignty. "The newly revised definition of 'spouse' under the FMLA is in direct violation of state and federal laws and the U.S. Constitution," Paxton said in a statement quoted by the Blade. "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."

The Labor Department rule is part of the Obama administration's efforts to make the federal benefits of marriage available to all legally wed same-sex couples, after the Supreme Court's 2013 decision striking down section 3 of the Defense of Marriage Act allowed the federal government to recognize their marriages.

Paxton contends that because the Supreme Court did not deal with the section of DOMA that allows states to deny recognition to same-sex marriages performed elsewhere, Texas and other states without marriage equality should be exempt from the new FMLA rule. However, several federal and state courts have cited the DOMA ruling in striking down state marriage bans.

His "prayer for relief" in the suit "would have the effect of barring the FMLA change from going into effect in not just Texas, but all 12 states that currently don't recognize same-sex marriage," the Blade reports.

Paxton's complaint also claims that under the new rule, "Employers in Texas will be called upon to decide issues that the Supreme Court has not yet decided, and those employers do so without the benefit of briefing and oral arguments for the full presentation of the issues on both sides."

The Supreme Court may well rule on marriage equality before Paxton's suit is decided, as it will hear a case April 28 and issue a ruling before the court session ends in June. Also, Texas's marriage ban has been struck down by a U.S. District Court, and the state's appeal of that decision was heard by the U.S. Court of Appeals for the Fifth Circuit in January. A pro-equality ruling in either case would make Paxton's lawsuit moot.

LGBT rights advocates denounced the suit. "I think there are a lot of people who would like to know why the attorney general cares if loving, committed couples are recognized as loving, committed couples," Daniel Williams, legislative director for Equality Texas, told The Texas Tribune.

By the way, one of Texas's U.S. senators -- Ted Cruz, pictured with Paxton -- has introduced legislation that would prevent the federal government from recognizing the marriages of same-sex couples who don't live in a marriage equality state.