It is easy to think that marriage equality is settled law after the U.S. Supreme Court’s Obergefell v. Hodges decision in 2015. After all, that case held not only that there was a right for same-sex couples to marry, but also that they were entitled to “the constellation of benefits that the States have linked to marriage.” And just last week, that same Court reaffirmed, in Pavan v. Smith, that the right to marriage benefits is to be read broadly and even includes ancillary things like the right to be listed on birth certificates.
However, on Friday, in Pidgeon v. Houston, the Texas Supreme Court unanimously chose to utterly disregard U.S. Supreme Court precedent, saying instead that it needed to explore the “reach and ramifications” of Obergefell. It is going to conduct that exploration by allowing two taxpayers—Jack Pidgeon and Larry Hicks—the opportunity to continue to press their case that Houston cannot extend the same benefits to same-sex spouses of city employees as it does to opposite-sex ones.
The Texas decision inexplicably begins with a lengthy recitation of how marriage used to be limited to one man and one woman. It’s a mean-spirited detour, given that Obergefell is now the law of the land. Sure, 20-plus years ago many states passed Defense of Marriage Act (DOMA)-style laws limiting marriage to one man and one woman, but they wouldn’t be allowed to do so now. The inclusion of this information serves no purpose but to remind the reader that the all-GOP Texas Supreme Court simply doesn’t believe in marriage equality.
This case has a long and tortured history. After the 2013 United States Supreme Court decision in United States v. Windsor, which held that the federal DOMA was unconstitutional, Houston moved to extend benefits to same-sex spouses of city employees. (At this point, same-sex marriage was not yet legal in Texas, so this initially applied only to couples married in states where it was.) Pidgeon and Hicks sued, not because the extension of benefits to same-sex couples would have affected them personally in any fashion, but because they are taxpayers and voters and felt that Houston was “expending significant public funds on an illegal activity.”
Roe has collapsed in Texas, and that's just the beginning.
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While this case was progressing, of course, the U.S. Supreme Court decided Obergefell, which should have settled the question. The Texas Supreme Court doesn’t see it that way.
There was simply no reason for the Texas Supreme Court to take this case. Last year, it declined to take the very same one, which meant the lower court decision that had found benefits should be extended stood. In an incredibly unusual move, the court was pressured by a GOP letter-writing campaign and Texas Gov. Greg Abbott, Lt. Gov. Dan Patrick, and Texas Attorney General Ken Paxton, all of whom urged it to reopen the case.
Much of the case centers upon whether it could be sent back to the trial court—given that the case’s procedural history was so unusual and tangled—and what relief the plaintiffs could actually receive, given that they are just taxpayers challenging the law.
The injuries claimed by Pidgeon and Hicks are simultaneously repugnant and nonexistent. Relying upon the Burwell v. Hobby Lobby case, they argue that they did indeed suffer an injury when Houston’s mayor sought to extend benefits because “they are devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful.” The Texas Supreme Court described this as an “interesting and important” argument, which underpins the reasoning in sending it back down to the lower court.
Anti-equality advocates are, of course, thrilled and feel that this decision validates their perverse belief that the Tenth Amendment frees them from following the Obergefell decision. One of the lawyers for Pidgeon and Hicks stated that the decision shows that a federal court holding is not binding on the state courts, period. While the Tenth Amendment does reserve those powers for the states that the federal government does not claim for itself, it isn’t some magic shield by which states can ignore federal legislation or court decisions. The instances in which states may safely ignore federal court rulings are very narrow. The holding regarding Arkansas’ birth certificates in Pavan v. Smith, for example, makes very clear that the U.S. Supreme Court intended Obergefell to apply to the states where the privileges of marriage—not just the right to get married—are concerned.
The chance exists that the Texas lower court will better follow the dictates of Obergefell, but that is the slimmest of chances. The direction from the Texas Supreme Court here almost explicitly tells the lower court to read Obergefell narrowly and refuse to allow Houston to extend benefits to same-sex couples:
The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and […] it did not hold that the Texas DOMAs are unconstitutional.
This is a remarkable, terrifying, and depressing statement. It is an impossibly cramped reading of Obergefell that says, basically, that same-sex couples can marry, but that doesn’t mean they will be afforded any of the benefits of marriage. (It also sets the stage for years of litigation where this case could go back down to the lower court, up through the Texas appellate system again, and perhaps ultimately even to the Supreme Court.) It echoes Justice Neil Gorsuch’s dissent in the Pavan case, where he indicated that he believes that Obergefell must be litigated again and again in lower courts, with same-sex couples needing to battle for every last marriage-related right and privilege. Read together, they portend a formidable and threatening future for marriage equality advocates.
It’s now clear that Obergefell wasn’t the end of the battle for marriage equality—it was just the beginning.