Texas Attorney General: Domestic Partnerships Are Unconstitutional

Texas AG Greg Abbott advocating for the public display of The Ten Commandments.

Texas Attorney General Greg Abbott (R) has issued new guidance stating that domestic partnerships are unconstitutional under the Texas state Constitution’s amendment banning marriage for same-sex couples. However, his decision does contain a certain nuance that would still allow for same-sex couples to receive their partners’ health benefits. Abbott points out that recognizing relationships “similar” to marriage — like domestic partnerships — is unconstitutional, but, citing a lawmaker’s remarks when Texas passed its marriage amendment, he explains that the health benefits themselves are:

Representative Chisum’s statement simply explains that article I, section 32 does not, in his view, address whether a political subdivision may provide health benefits to the unmarried partner of an employee. The constitutional provision does, however, explicitly prohibit a political subdivision from creating or recognizing a legal status identical or similar to marriage. The political subdivisions you ask about have not simply provided health benefits to the partners of their employees. Instead, they have elected to create a domestic partnership status that is similar to marriage. Further, they have recognized that status by making it the sole basis on which health benefits may be conferred on the domestic partners of employees.

This presents a challenging space for employers who wish to recognize same-sex couples. The primary criterion that Abbott explains is problematic to domestic partnerships is that the requirement for their recognition is too similar to marriage, including that applicants must attest that they are not married and have no undissolved relational conflicts. Hypothetically, municipalities could offer employees the opportunity to designate a single beneficiary without requiring such qualifications for recognition and thus not violate the constitution at all.

Of course, Abbott’s opinion is nonbinding, and thus nothing is preventing domestic partnerships from continuing — only a court responding to a legal challenge could invalidate them. Currently, Dallas County and the cities of Austin, Dallas, El Paso, Fort Worth, and San Antonio, as well as Pflugerville School District, all offer domestic partnerships. Pflugerville was undoubtedly the specific target for the request for Abbott’s guidance, but district officials say the December decision to offer the benefits was simply a business decision by the insurance committee that does not cost the district or the taxpayers.