The Next Assault on Marriage Equality Has Begun

After first refusing an appeal, the Texas Supreme Court has agreedto take on a case that appears designed to chip away at same-gender marriage rights in Texas — andpotentially across the United States.

Last year the Texas Supreme Court refused to hear a case in whicha lower court affirmed that, under the Obergefellv. Hodgesruling of 2015, cities cannot deny same-gender couples the employee benefits givento opposite-sex couples.

The case, known asPidgeon v. Turner, is a thorny one.

Howdid we get here?

After a separate legal action, the City of Houston began providing same-gender partner benefits in2013 — even though Texas state law prohibited same-gender marriage. The city offered the benefitsfor any same-gender couple married in a state thatrecognized such aunion. City officials conceded thatthe Windsor v. United States Supreme Court case of that year could be read as affirming marriage equality rights and, therefore, superseded state law.

Republicans and religious conservatives were outraged by thedecision. Two citizens launched alegal suitin an attempt to block this roll-out of employee benefits. The case argued that Houston’s actions were a misuse of taxpayer funds and in direct violation of both a 2001 law that prohibited cities from exceeding state laws in this area, as well as the state’s ban on marriage equality.

The suit against the city initially found some success, but following the Supreme Court’sruling in the Obergefell case, that lawsuit fell apart. With the new ruling, same-gender couples’ rights to access marriage and all its available spousal benefits had been affirmed.

As a result, and in a vote of eight to one, the Texas Supreme Court duly dismissed an appeal of the casein September of 2016. But anti-equality forces were not happy.

What followed was an extraordinary attempt by Republican politicians to pressure the court to reconsider this decision.

In a friend of the court brief, around 70 Republican politicians and religious conservative forces have urged the court to stand up to what they deem “federal tyranny.” They also warn that refusing to hear this case couldhaveserious repercussions by denying voters the right to knowwhat “duly elected high court justices” thinkabout the issue.

Many analysts have called these statements a blatant attemptto unseat any justices whodo not fall in line when it comes to re-elections later this year.

In addition — and perhaps even more alarmingly — Governor Greg Abbott, Lt. Governor Dan Patrick and the state’s attorney general Ken Paxtonsubmitteda brief in which they argue that this is an ideal opportunity to limit the impact of the Obergefell ruling.

Folllowingall this, the state Supreme Court has now said it will hear oral arguments in March.

What has changed?

Houston city officials contendthat the case is as dead as ever because, legally speaking, everything that was true in 2016 remainstrue today.

However, it’s undeniable that there has been a major shift in politics, thanks to the inauguration of Donald Trump. And it seems unlikely that this administration will continue the Obama administration’s advocacy and support for same-gender marriage.

Furthermore, witha U.S. Supreme Court vacancy, the president and a Republican-controlled Congress will decide who fills the open seat.If a conservative — and potentially anti-marriage equality — justice isplaced on that bench, the courtcould be prompted to rehear a case withthe right argument.

Even then, however, the argument would have to be strong. This begs the question: Do anti-equality forces have a compellingposition? Well, they seem to think so.

In refusing the case last year, the Texas Supreme Court was split eight to one. The one dissenting voice was Judge John Devine — and he seems to have given anti-equality forces hope.

Here’s what Devinehad to sayabout the case last year:

Without substantial discussion or analysis, the court of appeals assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses. …I disagree. Marriage is a fundamental right. Spousal benefits are not. Thus, the two issues are distinct, with sharply contrasting standards for review.

By any standard, this is a rather grubby attempt to pry open a chasm between marriage as a social mooring and the legal rights that itaffords. Texas’ anti-equality Republicans seem pleased with this potentially clever trick, but legal analysts are not soconvinced — and there are a good few reasons why.

First, the Obergefell ruling was uncompromising in statingthat same-gender couples shouldbe afforded all the rights associated with marriage. To put that in context, if a city provides spousal benefits or partner benefits for opposite-sex couples, it must do so for same-gender couples. TheWindsor ruling dealt specifically with the federal Defense of Marriage Act, but it lends itself to that same notion too.

Even discounting Obergefell, though, there remainsa strong legal precedent that same-gender couples should be afforded all the rights of marriage. Not too long ago, Republicans were even willing to concede the allowance of civil unions and all the associated rights of marriage so as to deny same-gender couples the ability to call themselves “married.”

Ultimately, this case probably won’t be the one todirectly attack national marriage equality. But the fact that the Texas Supreme Court has been bullied into wasting itstime on the off-chance of ananti-marriage equality ruling is a significant blow to the rule of law and the separation of powers.

It is also indisputable that this case representsanother insidious step toward the goal of destroying marriage equality — and a worrying reminder that without the advocacy of an administration likewe saw in the latter Obama years, we may be in for a tough fight ahead.

Photo Credit: Elvert Barnes/Flickr

97 comments

Jerome S
Jerome S6 months ago

thanks

SEND
Jerome S
Jerome S6 months ago

thanks

SEND
Jim V
Jim Ven6 months ago

thanks for sharing

SEND
Jim V
Jim Ven6 months ago

thanks for sharing

SEND
Siyus C
Siyus Cabout a year ago

Thank you for sharing

SEND
Jaime J
Jaime Jabout a year ago

Thank you

SEND
Marie W
Marie Wabout a year ago

Thank you for sharing

SEND
Karen H
Karen H1 years ago

To the people who argue that their religion declares marriage is between one man and one woman - your religion does not "trump" mine. My religion says marriage is between two people who love each other with all their heart and soul. I know plenty of one man / one woman marriages that are loveless.

SEND
Marie P
Marie P1 years ago

We all ought to respect everyone. Such prejudice

SEND
John W
John W1 years ago

Yea.. OK

SEND