On Friday, the Texas Supreme Court ruled that the Constitution does not clearly require states to extend spousal benefits to same-sex couples. The unanimous decision interprets the Supreme Court’s ruling in Obergefell v. Hodges narrowly, questioning whether it compels states to treat same-sex couples equally to opposite-sex couples in any context outside of marriage licensing. Arkansas recently raised this argument at the United States Supreme Court and lost. The Texas Supreme Court’s decision may eventually meet the same fate.
Friday’s decision in Pidgeon v. Turner revolves around spousal benefits for government workers. Texas law prohibits same-sex couples from receiving such benefits. After the Supreme Court struck down the federal same-sex marriage ban in 2013, the Houston city attorney advised then-Mayor Annise Parker that this prohibition ran afoul of the Constitution. While the Texas law remains on the books, 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. (The justices on the Texas Supreme Court are elected and occasionally face primary challenges from the right.)
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 Supreme Court 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.”
That argument is bizarre. Masterpiece Cakeshop asks whether businesses have a First Amendment right to turn away same-sex couples. Obergefell and Pavan hold that the government may not treat same-sex couples differently from opposite-sex couples. No matter how the court rules in Masterpiece Cakeshop, its decision cannot abridge the rights and benefits that a state must afford to same-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.
The Texas Supreme Court essentially ignores this command in an insidious effort to preserve vestiges of the pre-Obergefell regime. Its gambit will almost certainly fail in light of Pavan. But it’s alarming to see the justices roll the dice anyway—possibly out of fear that a pro-gay decision could spur voters to kick them off the bench. (The court noted that it considered “emails, letters, and postcards” from individual citizens in deciding Pidgeon; judges do not normally take public opinion into account so directly when ruling on civil rights.) Neil Gorsuch, Donald Trump’s Supreme Court justice, is already encouraging lower courts to buck Obergefell and preserve anti-gay laws. State supreme courts are paying attention. And so, two years after Obergefell, the equal dignity of same-sex couples is once again in jeopardy.