By Laurel Brubaker Calkins
(Bloomberg) –- Texas amended the death certificate of a gay man to state his husband is a surviving spouse after a judge threatened to hold state officials in contempt for failing to recognize all same-sex marriages.
John Stone-Hoskins, whose husband died in January, had repeatedly petitioned the state to list him as a widower following the U.S. Supreme Court’s June ruling legalizing same-sex marriages. The couple was legally married last year in New Mexico, which already recognized gay marriages.
Texas initially refused to alter the deceased’s status from “single,” claiming the Supreme Court ruling doesn’t apply retroactively. State officials issued the corrected death certificate Thursday, one day after a federal court ordered the change and summoned Texas Attorney General Ken Paxton and the state’s top health-services official to appear next week.
Paxton drew national attention in the wake of the high court ruling for his strong opposition to same-sex marriage. He encouraged county clerks to follow their religious convictions and refuse marriage licenses to same-sex couples, while also suggesting clerks assign those duties to colleagues without objections.
In court papers filed Friday, Texas asked U.S. District Judge Orlando Garcia of San Antonio to reconsider his order and cancel next week’s contempt hearing. The state claims it has the right to ask in a separate proceeding whether it must “go back and amend death certificates pre-dating the Supreme Court’s order.”
“Whether a newly-recognized federal constitutional right is retroactive is a complex, fact-specific inquiry that is resolved in subsequent legal proceedings,” Texas’s attorneys said in the filing. Amending death certificates could require probate courts to reopen estate distributions and claw back life insurance proceeds, they said.
Neel Lane, Stone-Hoskins’ lawyer, said he’ll oppose the state’s request to drop the contempt hearing. Attorneys for another man who also wants the state to list him as his late husband’s surviving spouse have asked to appear at the Aug. 12 hearing.
The case is De Leon v. Abbott, 5:13-982, U.S. District Court, Western District of Texas (San Antonio).