The bizarre way Texas conservatives are fighting against marriage equality

They're trying to enforce an unconstitutional law.

CREDIT: Youtube/Steven Hotze
CREDIT: Youtube/Steven Hotze

More than three years after the Supreme Court’s ruling in Obergefell v. Hodges, a conservative group is still arguing in Texas state court that the state’s ban on recognizing same-sex couples’ marriages is enforceable. And they’re willing to throw different-sex couples under the bus to win.

The Conservative Republicans of Texas (CRT), which the Southern Poverty Law Center has declared an anti-LGBTQ hate group, has been fighting this case, called Pidgeon v. Turner, since 2013. Their argument is that the city of Houston has been violating Texas’ ban on same-sex marriage — even post-Obergefell — by providing spousal benefits to the same-sex partners of city employees. The two plaintiffs are taxpayers who believe that “homosexual relationships” are “immoral and sinful,” so the government owes them money for violating this ban using money they paid in taxes.

Their reasoning is pretty incredible. CRT argues that neither Obergefell nor the follow-up decision addressing same-sex parenting, Pavan v. Smith, settled the question of benefits for same-sex couples. Since no employee is constitutionally entitled to benefits, CRT insists that there is an easy way that Houston can comply with both the U.S. Supreme Court and Texas’ ban simultaneously. “The City of Houston could withdraw spousal benefits from all city employees tomorrow without violating the Constitution, and without violating anything in Obergefell and Pavan,” they suggest in a recently filed motion.

That’s right. This group is calling for the city to cut all spousal benefits for all employees to make sure that same-sex couples don’t get any benefits.


The problem with this argument — and it’s a pretty big and obvious one — is the assumption that Texas’ ban on recognizing same-sex couples’ marriages is somehow still enforceable at all. In both Obergefell and Pavan, the Supreme Court held that same-sex couples must have access to civil marriage “on the same terms and conditions as opposite-sex couples.” While CRT is technically correct that denying spousal benefits to all city employees would result in the same terms and conditions for all couples, it does not follow that Texas’ ban can or should be enforced in this way.

The ban is found in Texas Family Code Section 6.204 and contains two parts. The first part states that any marriage (or civil union) between persons of the same sex “is contrary to the public policy of this state and is void in this state.” The second part states that no government agency or division can recognize a same-sex couple’s union as valid or provide any protections or benefits to it. Both parts of the law thus run afoul of Obergefell and Pavan by dictating different treatment for same-sex couples. CRT’s proposal for Houston to comply with both the ban and the rulings ignores that they are in direct conflict with each other.

Despite this obvious flaw, CRT’s suit unfortunately still has legs. In fact, it’s already taken quite a journey.

Last summer, the Texas Supreme Court actually ruled unanimously in CRT’s favor. They didn’t decide the outcome of the case, but did conclude that Obergefell “did not hold that states must provide the same publicly funded benefits to all married persons.” The issue should have a full hearing, the Court argued, and they sent it back to the lower court.


Houston Mayor Sylvester Turner (D) appealed this decision to the U.S. Supreme Court, but in December, the U.S. Supreme Court declined to consider it. Texas conservative groups were thrilled, and even state Attorney General Ken Paxton (R) celebrated that “the right to a marriage license does not entitle same-sex couples to employee benefits at the expense of Texas taxpayers” and that “the traditional, Texas definition of marriage was still in full force.”

This sent the case all the way back down to a Harris County court, where last month, CRT filed a motion for summary judgment, first noticed and reported on by Houston’s OutSmart Magazine. It’s back before State District Judge Lisa Millard (R), who originally ruled in CRT’s favor and suspended Houston’s benefits back in pre-Obergefell 2013. A federal judge later reinstated them and they continue to this day, but it remains unclear whether Millard might try to block them again and somehow circumvent Obergefell, as the Texas Supreme Court seemed to suggest was possible.

In the motion, CRT takes the opportunity to reiterate some rather retro arguments against marriage equality. Ignoring the reality that same-sex couples are four more times likely to adopt, they argue that “opposite-sex marriages advance the State’s interests in procreation to a greater extent than same-sex marriages do.” Marriage, they contend, somehow reduces out-of-wedlock births, but since “the sexual practices of homosexuals do not result in pregnancy,” their marriages do not “further this goal.”

They do not explain how depriving all couples of the benefits that provide economic security to their families would help these children.