Texas Supreme Court considers same-sex spousal benefits an open question

Texas Republicans still haven’t given up on treating same-sex couples unequally.

Lt. Gov Dan Patrick (R) and Gov. Greg Abbott (R). CREDIT: AP Photo/Eric Gay
Lt. Gov Dan Patrick (R) and Gov. Greg Abbott (R). CREDIT: AP Photo/Eric Gay

In a rather unprecedented event, the Texas Supreme Court agreed Friday to hear a case about whether married same-sex couples deserve equal spousal benefits — suggesting it’s still an open question. It’s not.

The case in question relates to benefits the city of Houston offered to the same-sex spouses of city employees back in 2015. Texas still banned same-sex marriage at the time, but these were employees who had been legally married in other states. The conservatives still fighting this case (including the anti-LGBT group Texas Values) argue that the expenditures Houston made before the U.S. Supreme Court’s ruling in Obergefell should be undone and that the Obergefell ruling should be read narrowly to allow the benefits to continue to be denied.

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What makes the Texas Supreme Court’s decision to consider the case unusual is that it had already decided back in September not to hear the case in an 8–1 vote. Justice John P. Devine (R) wrote the only dissent, arguing, “Obergefell concerned access to marriage, not an Equal Protection challenge to the allocation of employment benefits.” In other words, the case rides on the notion that the U.S. Supreme Court’s decision guaranteed the right to marry for same-sex couples, but not the equal rights of marriage for same-sex couples.

It doesn’t take a law degree to see that this is wrong on its face. Obergefell clearly states, “The State laws challenged by the petitioners in these cases are held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” If the terms and conditions of marriage in Texas or in Houston include employment spousal benefits, then they must apply to same-sex couples equally. And just because the decision was only issued on June 26, 2015 doesn’t grant retroactive constitutionality to the refusal of benefits before that date.

And that is the very argument the city of Houston makes in its defense. “The issue here is not whether employee benefits are a fundamental right,” the city’s response brief explains. “It is simply whether same-sex spouses must be allowed the same employee benefits as opposite sex spouses.”

Nevertheless, a massive email campaign, combined with pressure in legal briefs from many Republican lawmakers as well as the state’s top leaders — Gov. Greg Abbott (R), Lt. Gov. Dan Patrick (R), and Attorney General Ken Paxton (R) — seems to have convinced the state’s highest court to reconsider the question. This is despite the blatant hypocrisy from these officials given that state employees already enjoy equal benefits for their same-sex spouses.

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The anti-LGBT motivations of the groups leading this fight are not subtle. “It is perfectly constitutional for the government to offer benefits or subsidies to some married couples while withholding those benefits from others,” they argue in their petition for rehearing. “It is clear that the current Supreme Court will continue to use its power to advance the ideology of the sexual revolution until there is a change of membership.”

The state lawmakers similarly argue that the Court should narrowly construe Obergefell so that it does not “create rights” that would be “contrary to the values and traditions of Texans.” Abbott, Patrick, and Paxton insist that “while Obergefell obligates the State to grant and recognize same-sex marriages, it does not bind state courts to resolve all other claims in favor of the right to same-sex marriage.”

Equality Texas CEO Chuck Smith told the Austin American-Statesman that litigating the case “will ultimately be a waste of taxpayer dollars.”

Oral arguments are scheduled for March 1.