Terry H. Schwadron

This is so stupid that it has me sputtering.

Last Friday, the Texas Supreme Court — a court of elected judges who openly acknowledge that the relied on letters, emails and expressions from individuals in making their decision — ruled unanimously that the Constitution does not clearly require states to extend spousal benefits to same-sex couples.

Indeed, the court had to squint and look sideways at the ranking U.S. Supreme Court decisions in doing so. But Texas decided that the ranking decisions, known as Obergefell v. Hodges and DeLeon v. Abbot, a U.S. Court of Appeals ruling, only narrowly require Texas to recognize marriage licenses — and nothing more about same-sex couples. Arkansas recently raised the same issue before the U.S. Supreme Court and lost.

Did they miss all the celebrating, the worldwide adoption of similar same-sex marriage changes? Did they miss the Gay Pride parades in Texas cities? Did they forget that it is part of the American creed, if there is such a thing, to expand rights, not to nibble away at them? Did they really not get that when a spouse is sick, the partner wants the right to be present, or that insurance for a married couple covers both, or that their decision in this case is a baldly political act to defy the U.S. Supreme Court?

Clearly, this decision will be appealed, and waste time and money going back to the U.S. Supreme Court for affirmation that marriage is not restricted to a man and woman. Or not. Elevation of Justice Neil Gorsuch to the Supreme Court and that Court’s decision to review a baker’s case about not wanting to produce a wedding cake for a marriage he finds religiously objectionable could provide a new revisit for marriage equality. Indeed, Justice Gorsuch in the recent decision to hear the case of a baker who shunned making a cake for a gay couple seemed to invite more challenges around the edges.

Slate provided this excellent summary of the legalisms:

“Friday’s decision in Pidgeon v. Turner involves spousal benefits for government workers in Houston. Texas law prohibits same-sex couples from receiving such benefits. In 2013, after the Supreme Court struck down the federal same-sex marriage ban, the Houston city attorney advised then-Mayor Annise Parker that this prohibition ran afoul of the Constitution. While the Texas law remains, Parker mandated that it no longer be enforced in Houston, ordering the city to “extend benefits” to government employees’ same-sex spouses who’d been legally married elsewhere. (At this point, Texas’ same-sex marriage ban had not yet been struck down.) Two taxpayers, Jack Pidgeon and Larry Hicks, challenged Parker’s directive shortly thereafter, arguing that by granting benefits to same-sex couples, Houston was “expending significant public funds on an illegal activity.” (When Parker left office, current Houston Mayor Sylvester Turner stepped in as the defendant.)

“A state trial court agreed and blocked the new policy. While the city appealed that decision, the Supreme Court issued Obergefell in June, 2015, invalidating state-level same-sex marriage bans. The 5th U.S. Circuit Court of Appeals applied Obergefell to Texas several days later in a case called De Leon v. Abbott, striking down the state’s bar on same-sex marriage. In light of these decisions, a state appeals court reversed the block on same-sex benefits in Houston and sent the case back down to the trial court “for proceedings consistent with Obergefell and De Leon.” Pidgeon and Hicks appealed the ruling to the state Supreme Court, which initially refused to take the case.

“After a group of high-profile Republicans urged the justices to reconsider, however, the court reversed course and heard arguments in March.”

Now the justices have ruled, and their decision is a blow to the constitutional equality of same-sex couples. “According to the court, Obergefell “did not address and resolve” the “specific issue” of state spousal benefits. Therefore, the state appeals court erred in ordering the trial court to resolve the case “consistent with Obergefell and De Leon.” Instead, the Texas Supreme Court insisted, the trial court must settle the issue itself — keeping in mind that Obergefell “did not hold that states must provide the same publicly funded benefits to all married persons.”

“This maneuver is an oblique way for Texas to defy Obergefell without acknowledging what it’s doing. Obergefell declared that the Constitution grants same-sex couples “the constellation” of “rights, benefits, and responsibilities” that “the states have linked to marriage.” Its holding was not limited to marriage licensing. The Arkansas Supreme Court learned this lesson when it attempted to keep same-sex parents off their children’s birth certificates. On Monday, the U.S. Supreme Court reversed that ruling in Pavan v. Smith, affirming that the Constitution prevents such “disparate treatment.”

“The Texas Supreme Court acknowledged Pavan but noted that the justices also agreed to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, a constitutional challenge to LGBTQ nondiscrimination laws. This decision “to hear and consider Masterpiece Cakeshop,” the Texas Supreme Court insisted, “illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.”

Actually, the baker case pits one First Amendment right against others. Obergefell and Pavan say that the government may not treat same-sex couples differently from opposite-sex couples.

It’s somewhat surprising that the Texas Supreme Court acknowledged Pavan at all because any plausible reading of that decision clearly resolves Pidgeon. In Obergefell, the court held that every state must extend the “privileges and responsibilities” of marriage to same-sex couples “on the same terms and conditions as opposite-sex couples.” In Pavan, the court clarified that all rights associated with marriage — not just marriage licensing itself — must be afforded to same-sex couples.

Now, whether members of the Texax Supreme Court did what they did out of concerns that are legal or political is hardly the difference. Justices seldom say they are relying on expressions of public opinion in settling legal matters.

It remains a question about whether the emergent conservative majority on the U.S. Supreme Court will buck the established law of Obergefell.

##

terryschwadron.wordpress.com

Journalist, musician, community volunteer