Is Same-Sex Marriage Safe?

The Texas Supreme Court takes on the first major effort to roll back marriage equality in the age of Trump.

Protesters outside the Texas Supreme Court in Austin on Wednesday.

Mark Joseph Stern

AUSTIN, Texas—Debating the constitutionality of government discrimination against same-sex couples today has a charmingly retro feel. The United States Supreme Court issued Obergefell v. Hodges more than a year and a half ago, requiring states to license same-sex marriages and treat them equally to opposite-sex marriages. And yet here we are in 2017, watching the Texas Supreme Court seriously ponder whether the state can deny spousal benefits to same-sex couples simply because they are gay.

If you’re prone to nostalgia, Wednesday’s arguments may evoke a certain wistfulness, a fond remembrance of the days when state officials appeared before judges to insist that gay people do not really deserve the equal protection of the laws. If you’re prone to inquietude, on the other hand, I have good news: A majority of the court appeared apprehensive about rolling back marriage equality. It’s possible that the justices could defy the U.S. Supreme Court and permit Texas to treat same-sex couples unequally. But it seems far more likely that they will dodge the key question in the case and dismiss the whole piteous affair on procedural grounds.

Pidgeon v. Turner, Wednesday’s case, involves a very sneaky challenge to the core holding of Obergefell. The superbly named plaintiffs, Jack Pidgeon and Larry Hicks, are Houston taxpayers who oppose the city’s policy of providing spousal benefits to all married state employees, gay or straight. They point out that the policy violates Texas’ same-sex marriage ban, which bars the state from providing any “right” or “benefit … asserted as a result of a marriage between persons of the same sex.” Houston first defended the policy, which it enacted in response to a lawsuit in 2013, on the grounds that the Supreme Court’s decision in United States v. Windsor cast doubt on the constitutionality of anti-gay marriage laws. After Obergefell, it argued, reasonably, that because states could no longer discriminate against same-sex couples, the Texas spousal benefits ban was invalid, and the city’s extension of spousal benefits to same-sex couples was constitutionally compelled.

Pidgeon and Hicks assert that, in fact, neither Windsor nor Obergefell rendered the Texas ban unenforceable. As a result, when Houston provides benefits to same-sex couples, it is spending taxpayer money illegally and in violation of their religious beliefs. As taxpayers and “religious conscientious objectors” to same-sex marriage, Pidgeon and Hicks insist that they have standing to challenge Houston’s policy in court. And they want the Texas Supreme Court to hold that the state ban on spousal benefits is totally constitutional under Obergefell—rendering the Houston policy unlawful.

This argument is ridiculous. The Obergefell court ruled that, under the Due Process and Equal Protection Clauses of the 14th Amendment, states must recognize same-sex marriages “on the same terms and conditions” as opposite-sex marriages. In sweeping language, the majority affirmed the “equal dignity” of same-sex couples, prohibiting states from restricting their access to the “fundamental right” of marriage and “all the benefits” associated with it. Indeed, the court explicitly declined to engage in a “case-by-case determination of the required availability of specific public benefits to same-sex couples,” concluding that the process would impermissibly abridge constitutional equality.

Perhaps in recognition of this fact, the Texas Supreme Court refused to hear Pidgeon last September, over the bizarre dissent of Justice John Devine, who declared that Texas’ interest in “encouraging procreation” justified the state’s same-sex benefits ban. But Texas Republicans launched a lobbying campaign urging the court to reconsider. And in January, the justices—who all face re-election campaigns at some point down the road—reversed course and agreed to hear the case.

And so the court met on Wednesday to contemplate whether Obergefell means what it says. Jonathan Mitchell, arguing for Pidgeon and Hicks, boldly took the position that it does not. Obergefell, he explained, held only that states cannot deny the “fundamental right” of marriage to same-sex couples. Mitchell acknowledged that there may be other fundamental rights associated with marriage, like the “right to adopt children” and “perhaps” the right to list a same-sex spouse listed “on a death certificate.” But, Mitchell maintained, “We don’t know if Obergefell compels equal treatment with regard to nonfundamental rights,” such as spousal benefits. In light of that alleged uncertainty, he concluded, Texas must continue to enforce its same-sex benefits ban.

Mitchell’s uncertainty as to whether Obergefell requires the listing of a same-sex spouse on a death certificate is quite astonishing, as that is the precise claim that James Obergefell pursued successfully in court after his husband died. Equally perplexing was Mitchell’s distortion of the majority opinion in Obergefell, which did not divide marriage benefits into categories but rather viewed “the varied rights” of marriage “as a unified whole.” But the justices barely pushed those points; in fact, most of them seemed nervous to engage with his substantive argument at all. Instead, they repeatedly asked whether they could even hear the case in the first place, grilling Mitchell on standing (can religious taxpayers really obtain it so easily?) and jurisdiction (the Texas Supreme Court has very limited authority to hear appeals like this one).

When Douglas W. Alexander approached the lectern to defend Houston, however, the justices started to loosen up and have a little fun. Devine, who got this ball rolling with his wacky September dissent, asked Alexander whether it’s really true that “the state can never distinguish between opposite-sex and same-sex couples under Obergefell.” The answer is yes, but Alexander hedged a bit, responding that it couldn’t distinguish between them at least with regard to spousal benefits. Justice Jeffrey Boyd pounced, proclaiming that, “Even after Obergefell, the state can treat otherwise equal people unequally subject to the appropriate level of constitutional scrutiny.” So—“What is the appropriate level of scrutiny?”

Alexander responded, correctly, that while the Supreme Court “has never clarified” that level of scrutiny for sexual orientation discrimination, it has held that laws burdening a fundamental right are subject to strict scrutiny. “And,” he said, “we have that here.”

“How are spousal benefits a fundamental right?” Justice Eva M. Guzman promptly demanded, sucking Alexander back into the vortex of Mitchell’s botched Obergefell interpretation.

“We are not arguing that there is a fundamental right to spousal benefits,” an admirably cool-headed Alexander responded, but if Texas extends them to opposite-sex couples, “it must extend them to same-sex couples.” He then noted that the very conservative Judge Jerry Smith wrote an opinion for the U.S. Court of Appeals for the 5th Circuit applying Obergefell to Texas.

“Knowing him as you do,” Alexander said, “that could not have been an easy decision for him to write.” But he still wrote it, and “this court should do exactly” what he did—bite its tongue and apply the plain letter of Obergefell.

On rebuttal, Mitchell pushed back against Alexander’s rational basis claim, arguing that laws discriminating against gay people need only be rationally related to a legitimate government interest. When Justice Debra Lehrmann asked what the rational relation was here, Mitchell went truly old school. His two reasons: the state’s “interest in procreation” and in “channeling procreative sexual intercourse into procreative marriage.”

“What about opposite-sex couples who can’t have kids?” Guzman asked.

“Under rational basis,” Mitchell said, “rough cuts are permissible.”* He then suggested that he could also win under intermediate scrutiny, which requires an “exceedingly persuasive justification” for discrimination, but did not specify what that justification might be.

As arguments drew to a close, Boyd finally put the key question of the case front and center.

“Are you saying,” he asked Mitchell, “that we don’t have to obey Obergefell?”

Rather than saying no and leaving it at that, Mitchell gave an answer that one might generously describe as academic.

“An opinion of the Supreme Court doesn’t have the same status as constitutional text,” he told Boyd. “It’s not the supreme law of the land.”

A slightly alarmed Boyd leaned forward.

“You’re not arguing that we can ignore precedents of the Supreme Court?” he asked.

“This court should comply with Obergefell,” Mitchell conceded. But, he reiterated, it should interpret the ruling as narrowly as possible. Shortly thereafter, the justices filed off the bench. Mitchell and Alexander shook hands, and nearly all of the spectators exited the courtroom, leaving a sea of empty seats for the day’s two remaining arguments.

In an ideal world, the Texas Supreme Court would now unanimously hold that Obergefell calls for state spousal benefits to be granted equally, regardless of sexual orientation. But this isn’t an ideal world. This is Texas. And despite those meaty substantive exchanges, a majority of the justices clearly have little desire to reach the merits of this case. Any justice who votes to affirm Obergefell will likely face a primary challenge from the right, necessitating an extra round of campaigning and fundraising in the next election cycle. Why take that risk in a case that is entangled in such a thorny procedural thicket?

The odds, then, favor some kind of respectable evasion, and several justices gamed out that scenario on Wednesday. Pidgeon and Hicks are stretching standing to its limits; taxpayers are rarely allowed to challenge laws they dislike just because they help fund them. It’s also not clear that the Texas Supreme Court has authority to hear the case, as it arises out of an appeal from a temporary injunction rather than a final ruling on the merits. The justices could thus dismiss the litigation altogether on standing grounds or send it back down to the lower court for further consideration. A dodge may not give marriage equality advocates the victory they were hoping for. But it would save the country from once again descending into a debate that has already been definitively resolved by the highest court in the land.

*Correction, March 2, 2017: This story originally misattributed a quote to Douglas W. Alexander. It was said by Jonathan Mitchell. (Return.)