Texas is not exactly the first place that young gay couples are likely to think of when they are looking for a welcoming community where they can begin a family, but the city of Houston elected its openly gay Mayor Annise Parker (D) to three consecutive terms. Shortly after her most recent electoral victory, Parker announced that her city would provide health and life insurance benefits to the same-sex spouses of Houston employees that are legally married in other states — an announcement she deemed necessary to bring her city into compliance with the Supreme Court’s most recent gay rights decisions.
The chair of her county’s Republican Party promptly labeled her nod towards equality “one of the most egregious acts by an elected official I’ve ever seen.” Then he filed a lawsuit seeking to block Parker’s decision.
On Tuesday, State District Judge Lisa Millard issued a temporary order preventing Houston from extending these benefits to gay couples. Although Judge Millard’s order does not provide much detail on why she did so, it’s not difficult to guess why this happened. In 2001, Houston amended its charter to provide that “[e]xcept as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children.” In 2005, the state of Texas amended its constitution to provide that “[t]his state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”
These amendments, however, are likely to run headlong into a much higher authority — the United States Constitution.
Years before last June’s decision striking the unconstitutional Defense of Marriage Act, the Supreme Court held in Romer v. Evans that a Colorado amendment forbidding gay rights legislation violates the Constitution. “[L]aws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” Romer explained, and “[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”
Texas’s anti-gay amendment can be distinguished from the amendment at issue in Romer because it is somewhat narrower — the Colorado amendment was a sweeping ban on pro-gay laws while the Texas amendment forbids only marriage equality or providing rights to same-sex couples that are “similar to marriage.” Nevertheless, it would hardly be a stretch for the justices to apply Romer to Texas and the 28 other states that enacted anti-gay constitutional amendments restricting marriage equality.
While there are five justices on the Supreme Court with fairly consistent pro-gay records, several of these same justices have indicated that they prefer an incremental approach to a sweeping decision extending the blessings of liberty to gay couples nationwide. In the lead up to the DOMA decision, Justice Ruth Bader Ginsburg pointedly criticized Roe v. Wade for moving “too far, too fast.” During oral arguments on the fate of California’s anti-gay Proposition 8, Justice Sonia Sotomayor asked if there was any way to limit a pro-gay decision to just California. Striking Texas’ anti-gay amendment — and similar bans on marriage equality throughout the country — is a logical next incremental step now that DOMA is no longer good law. While applying Romer to states like Texas would do nothing for same-sex couples whose state or local legislature is hostile to gay rights, it would also mean that pro-gay officials like Mayor Parker would be as free to push equality as they are to enact any other policy.
As Texas’ judiciary is notoriously conservative, it is difficult to imagine Romer being applied to Texas’ anti-gay amendment by the state’s own courts. Nevertheless, a case enabling the U.S. Supreme Court to strike Texas’ amendment could reach the justices as soon as next year.
(HT: Josh Blackman)