How wrong was the Texas Supreme Court about equality for married gay couples?

Skirting the import of Obergefell v. Hodges and ignoring the impact of a 6-3 decision on the equal rights of married gay couples issued a week ago, the Texas Supreme Court unanimously declared Friday that cities in the state may not have to provide equal benefits to the same-sex spouses of their employees. In fact, the Texas court's decision in Pidgeon v. Turner held open the possibility that cities may be barred from granting such benefits under the state's DOMA law and even left open the possibility that a city might be required to "claw back" some benefits already paid to same-sex couples. Were it a final decision on the merits rather than a decision on an interlocutory appeal, Pidgeon would be good candidate for the kind of slap-down summary reversal the Supreme Court dealt the Arkansas high court last Monday in Pavan v. Smith (striking down Arkansas' "disparate treatment" of married gay couples in listing parents on birth certificates). The city of Houston, which is defending the workplace benefits, has not announced whether it will seek U.S. Supreme Court review at this point. Barring such review, the case will return to the state trial court for further factual development and more briefing.

Essentially, the state supreme court held that the landmark U.S. Supreme Court decision in Obergefell v. Hodges guaranteeing gay couples a fundamental right to marry requires states only to "license and recognize" same-sex marriages. Beyond that, the Texas court held, any claimed equal right to the associated benefits or rights of marriage must be litigated. The key passage comes at pp. 19-20:

We agree with the Mayor that any effort to resolve whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples without considering Obergefell would simply be erroneous. On the other hand, we agree with Pidgeon that the Supreme Court did not address and resolve that specific issue in Obergefell. "Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best . . . ." Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017). 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-unlike the Fifth Circuit in De Leon-it did not hold that the Texas DOMAs are unconstitutional.

Of course, that does not mean that the Texas DOMAs are constitutional or that the City may constitutionally deny benefits to its employees' same-sex spouses. Those are the issues that this case now presents in light of Obergefell. We need not instruct to the trial court to "narrowly construe" Obergefell to confirm that Obergefell did not directly and expressly resolve those issues. But neither will we instruct the trial court to construe Obergefell in any manner that makes it irrelevant to these issues. Pidgeon contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case. And the Mayor has not yet had the opportunity to oppose it. Both are entitled to a full and fair opportunity to litigate their positions on remand.

The core error here is the Texas Supreme Court's crabbed understanding of Obergefell. Note first the court's approving if selective quotation from the Fifth Circuit characterizing Obergefell as protecting only a form of "'sexual relations.'" In fairness to the Fifth Circuit, it should be noted that the Pidgeon court omitted the very next line from that federal appeals court decision, which is far more respectful of the right to same-sex marriage recognized in Obergefell: "but Obergefell is expressly premised on the unique and special bond created by the formal marital relationship. Obergefell does not create 'rights' based on relationships that mock marriage."

Unlike the Fifth Circuit's, the Texas Supreme Court's characterization of same-sex marriages as involving simply "sexual relations" demeans those marriages as much as the opinion in Bowers v. Hardwick (reversed in Lawrence v. Texas) demeaned gay couples' right to sexual privacy by calling it only a right to "homosexual sodomy." When certain people see a married gay couple their thoughts drift to sodomy.

But the problems with Pidgeon's view of Obergefell are even deeper than that. Without elaboration, the Texas Supreme Court announced its view that Obergefell held only that states must "license and recognize" same-sex marriages. But, the court added, this does not necessarily entail a right to equal marital benefits -even though the denial of a variety of marital benefits, not just the right to obtain a license, was at stake in Obergefell. This license-and-recognize reading was essentially the view urged by the Petitioners in Pidgeon (a pastor and a CPA who oppose same-sex marriage), along with Texas Governor Greg Abbott, AG Ken Paxton, Lieutenant Governor Dan Patrick, and dozens of state lawmakers and "Conservative Leaders."

In an amicus brief filed on behalf of two dozen constitutional law and family law professors in Texas. my colleague at SMU Joanna Grossman and I argued that this narrow license-and-recognize interpretation of Obergefell was unjustified:

Obergefell repeatedly admonished throughout its opinion that same-sex couples have a right to "civil marriage on the same terms and conditions as opposite-sex couples." See Obergefell, 135 S. Ct. at 2605; id. at 2593 ("The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex."); id. at 2607 ("The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex."); id. at 2605 ("[T]he State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples."); id. at 2602 ("Under the Constitution, same- sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right."). This holding reflects the Court's view, elaborated at length in Obergefell, that the right of same-sex couples to marry arises from both the Due Process and Equal Protection Clauses. Id. at 2602-05. A state or local law denying benefits to married same-sex couples alone is a literal exclusion of them from "civil marriage on the same terms and conditions as opposite sex couples." Id. at 2605.

Eight Justices on the Court, including three in dissent, flatly rejected the proposition that same-sex couples would have to, post-Obergefell, argue for equal marital benefits on a case-by-case basis. "Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage." Id. at 2606; see also id. at 2623-24 (Roberts, C.J., dissenting, joined by Justices Scalia and Thomas) (lamenting that cases involving selective tangible benefits "will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.").

Nevertheless, Petitioners and their supporting amici urge this Court to authorize a case-by-case approach to equality for same-sex couples. They argue for what Petitioners call a "narrow construction" of Obergefell under which married same-sex couples would have only a right to be "licensed and recognized by the State, not to obtain any type of government benefits for one's spouse." Petitioners' Motion for Rehearing (PMR) at 7. Equality as to every right attached to marriage would be up for grabs, available to same-sex couples only by grace of the State.

That is not a construction of Obergefell-"narrow" or otherwise-but a defiance of it. The fundamental right of same-sex couples to marry cannot be disentangled in this way from the equal right to the benefits and privileges that come with it. The Court could not have made this more clear.

Obergefell thus involved more than the fundamental right to obtain a piece of paper and some abstract governmental recognition. It was about equality within the institution of marriage and so was about an equal right to the associated benefits. As we noted in our amicus brief: "Obergefell specifically challenged the exclusion of married same-sex couples from certain benefits and rights made available to all opposite-sex married couples, making marital benefits a key component of Obergefell." It consolidated several cases involving matters like property protection, merging separate health insurance plans into a family plan, the legal rights associated with a child's birth, inheritance tax exemption, healthcare benefits, intestacy, loss of consortium damages, workers compensation, listing both parents on birth certificate, and including a spouse's name on a death certificate. "In each of these cases," we argued, "the plaintiffs won the identified benefit at the district court level, lost it on appeal to the Sixth Circuit, see DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014) (consolidating cases), and won it back in the Supreme Court with the ruling in Obergefell. Were the benefits of marriage not in play in Obergefell, the Sixth Circuit's ruling as applied to these four cases would not have been reversed."

The Texas justices also concluded that Obergefell does not necessarily mean that the Texas DOMA, which restricts marriage to opposite-sex couples, is unconstitutional. This is baffling. Identical laws in four states-Michigan, Ohio, Tennessee, and Kentucky-were declared unconstitutional on Due Process and Equal Protection grounds in Obergefell.

It's technically true that the Texas DOMA was not held unconstitutional in Obergefell-in the same technical sense that the Alabama public school segregation law was also not held unconstitutional in Brown v. Board of Education. The case challenging the Texas DOMA, DeLeon v. Perry, did not even make it to the Supreme Court because Texas state officials, including Gov. Abbott, wisely declined to take the issue to the Supreme Court after Obergefell. The result was obvious: The U.S. Supreme Court would have summarily affirmed the Fifth Circuit decision striking down the Texas DOMA.

In another era, the Texas Supreme Court ridiculed the notion that state courts could ignore the plain implications and natural meaning of a Supreme Court decision simply because no Texas law had yet been formally challenged. See, e.g., McKinney v. Blankenship, 282 S.W.2d 691, 694-95 (Tex. 1955) (rejecting the argument that Texas courts were not bound by Brown because Texas's own segregation laws "were not before the Supreme Court" in Brown as "so utterly without merit that we overrule it without further discussion"). The Texas Supreme Court even cited this precedent in Pidgeon-and then disregarded it (pp. 18-19).

The Pidgeon court would condemn married gay couples to the very trial-by-trial, appeal-by-appeal fight for equal benefits that the Supreme Court explicitly rejected in Obergefell. ("Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage." Obergefell at 2606.) At least the Pidgeon court allowed that in this painstaking case-by-case process gay couples might still win in the end, that Obergefell should be "considered," and that it might not be "irrelevant" in future litigation.

Ironically, Texas is already paying equal workplace benefits to state employees because, despite his newfound narrow construction of Obergefell, Gov. Abbott agreed in federal litigation that a federal court injunction barring enforcement of the Texas DOMA was "correct in light of Obergefell." The fact that state employees in same-sex marriages are already getting equal benefits "could potentially affect" whether city employees should get them (p. 14), the Pidgeon court noted, but then carried on without considering what effect this incongruity should have on how to understand Obergefell.

These considerations should have led the Texas Supreme Court to the conclusion that, as far as the U.S. Supreme Court is concerned, the Constitution has not left open the question whether same-sex couples are entitled to "civil marriage on the same terms and conditions as opposite-sex couples," that they cannot be "denied the constellation of benefits that the States have linked to marriage," id. at 2601, and that the only legal basis for denying employment benefits to validly married gay couples-the Texas DOMA and its parallel Houston ordinance-is plainly unconstitutional under Obergefell. In fact, the state supreme court identified only the continued presence of the Texas and Houston DOMAs on the books as the reason "why Pidgeon is able to bring this claim." (p. 22 n. 21)

All of that was true before last Monday, June 26, when the Supreme Court decided Pavan. That same day the City of Houston notified the Texas Supreme Court of the relevance of Pavan, describing it thus:

In Pavan v. Smith, No. 16-992, 582 U.S. ___ (June 26, 2017) (per curiam), the United States Supreme Court reversed the Arkansas Supreme Court, which had ruled that Arkansas need not extend to same- sex couples a rule requiring names of spouses to appear on a child's birth certificate. The Supreme Court held that such "differential treatment infringes Obergefell's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage . . . .'" Pavan, 582 U.S. at ___ (slip op. at 1) (quoting Obergefell v. Hodges, 135 S. Ct. 2584, 2601 (2015)). The Court repeated Obergefell's holding that a State may not "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." Id. at __ (slip op. at 3).

In its opinion below, the Arkansas Supreme Court took a narrow, siloed view of Obergefell akin to the Texas Supreme Court's. For the Arkansas high court, Obergefell involved only a fundamental right to "marriage," rather than "parentage" or "vital records." However, the Supreme Court rejected that attempt to cabin Obergefell, noting that "same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child's birth certificate, a document often used for important transactions like making medical decisions for a child or enrolling a child in school." But "Obergefell proscribes such disparate treatment." Slip op. at 3.

The Pavan court seemed taken aback that the Arkansas Supreme Court failed to appreciate the kinds of substantive marital benefits that had been guaranteed in Obergefell itself: "Several of the plaintiffs in Obergefell challenged a State's refusal to recognize their same-sex spouses on their children's birth certificates. See DeBoer v. Snyder, 772 F. 3d 388, 398-399 (CA6 2014). In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples."

Workplace benefits for married couples were also among the issues raised in the consolidated cases decided by Obergefell. Bourke v. Beshear, 996 F. Supp. 2d 542, 546 (W.D. Ky. 2014) ("a same-sex spouse must pay to add their spouse to their employer-provided health insurance, while opposite-sex spouses can elect this option free of charge").

Notably, Pavan was a summary reversal, the kind of quick and truncated resolution reserved for cases where the law is settled and stable, the material facts are undisputed, and the lower court's error is clear. The decision was 6-3, with Chief Justice Roberts (an Obergefell dissenter) joining the majority's view. Justice Gorsuch filed a dissent joined by Justices Thomas and Alito. But even the dissenters quibbled with the majority only on whether the Arkansas birth certificate system was truly marriage-based (and thus subject to the holding of Obergefell) or instead biology-based-not on the underlying principle that truly marital benefits must be distributed equally to gay couples under the holding of Obergefell.

The Pidgeon opinion reads as if it was written before Pavan was announced and was adjusted only slightly to add three citations, two in footnotes. One footnote cites Pavan along with United States v. Windsor for the flaccid proposition that Obergefell must be "considered" as Texas courts evaluate married gay couples' rights case-by-case. (p. 19, n. 18).

The other two references suggest that Pavan only shows that the Supreme Court isn't finished dealing with litigation involving Obergefell. Pavan, observed the Texas Supreme Court, addressed "Obergefell's impact on an issue [the Supreme Court] did not address in Obergefell." (p. 23 and n. 22) In fact, the Supreme Court said the opposite in Pavan: it had addressed the issue of equal benefits based on marriage in Obergefell but a state supreme court refused to listen. The result was a public embarrassment for that state supreme court in a five-page summary reversal.

There are certainly unresolved issues at the periphery of Obergefell, as the Texas Supreme Court noted. One such issue arises in Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n,—U.S.L.W.—(U.S. June 26, 2017) (No. 16-111), which involves the question whether a baker can refuse on First Amendment grounds to sell cakes for the wedding of a gay couple. That case does not challenge the right to marry, or question whether states must grant gay couples the "constellation of benefits" they provide to opposite-sex couples. It involves Obergefell only to the extent that the fundamental right to marry makes even more weighty the state's interest in ending private discrimination against gay couples. So Obergefell is relevant to Masterpiece Cakeshop, but not dispositive.

That's very different from Pidgeon, where the only reasons to deny married gay couples' claims are either the existence of a state statute like the Texas DOMA that is certainly unconstitutional under Obergefell or claimed state interests like promoting procreation that were considered and rejected in Obergefell as a basis for government discrimination against them. The right to equal treatment of one's marriage by the government is central, not peripheral, to the holding of Obergefell, a proposition now clarified further by Pavan.

Until Pidgeon, the Texas Supreme Court had approached the issue of gay marriage cautiously, refusing to issue proclamations or decide substantive issues in cases brought to it. The court initially avoided intervening in Pidgeon itself but changed course after the governor, attorney general, lieutenant governor and other elected officials and religiously conservative organizations demanded reconsideration.

At the end of their opinion, the Texas justices cloaked themselves in a robe judicial humility, noting that "Pidgeon and the Mayor, like many other litigants throughout the country, must now assist the courts in fully exploring Obergefell's reach and ramifications, and are entitled to the opportunity to do so. Today, however, we are dealing only with an interlocutory appeal from a trial court's orders denying a plea to the jurisdiction and granting a temporary injunction." (pp. 22-23) In fact, the justices left open the door to deciding at some future date that, come to think of it, city governments are required by Supreme Court precedents to offer equal benefits to the spouses of their employees in same-sex marriages.

But that result is already an obvious one. Refusing to say so is a mark of judicial activism, not of judicial humility. Even on an interlocutory appeal, some legal propositions are so plain that they do not require further briefing. They require an instruction from the reviewing court that binding precedent must be honestly and faithfully followed. The Texas Supreme Court failed its judicial duty in this instance.

Opponents of gay couples' right to marry and their constitutional entitlement to equal marital benefits will undoubtedly litigate the central holding of Obergefell for many more years, perhaps hoping that a change in the Court's membership will eventually yield success. So, as the Texas justices observed, "Obergefell is not the end." But if Texas ends up denying equal benefits to government employees' same-sex spouses, Pidgeon will not be the end, either.