The Next Assault on Marriage Equality Has Begun

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

Last year the Texas Supreme Court refused to hear a case in which a lower court affirmed that, under the Obergefell v. Hodges ruling of 2015, cities cannot deny same-gender couples the employee benefits given to opposite-sex couples.

The case, known as Pidgeon v. Turner, is a thorny one.

How Did We Get Here?

After a separate legal action, the City of Houston began providing same-gender partner benefits in 2013 — even though Texas state law prohibited same-gender marriage. The city offered the benefits for any same-gender couple married in a state that recognized such a union. City officials conceded that the 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v. United States Supreme Court case of that year could be read as affirming marriage equality rights and, therefore, superseded state law.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 the decision. Two citizens launched a legal suit in 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’s ruling 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 case in 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 could have serious repercussions by denying voters the right to know what “duly elected high court justices” think about the issue.

Many analysts have called these statements a blatant attempt to unseat any justices who do 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 Paxton submitted a brief in which they argue that this is an ideal opportunity to limit the impact of the Obergefell ruling.

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

What Has Changed?

Houston city officials contend that the case is as dead as ever because, legally speaking, everything that was true in 2016 remains true 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, with a US 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 is placed on that bench, the court could be prompted to rehear a case with the right argument.

Even then, however, the argument would have to be strong. This begs the question: Do anti-equality forces have a compelling position? 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 Devine had to say about 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 it affords. Texas’ anti-equality Republicans seem pleased with this potentially clever trick, but legal analysts are not so convinced — and there are a good few reasons why.

First, the Obergefell ruling was uncompromising in stating that same-gender couples should be 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. The Windsor ruling dealt specifically with the federal Defense of Marriage Act, but it lends itself to that same notion too.

Even discounting Obergefell, though, there remains a 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 to directly attack national marriage equality. But the fact that the Texas Supreme Court has been bullied into wasting its time on the off-chance of an anti-marriage equality ruling is a significant blow to the rule of law and the separation of powers.

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