As the Supreme Court held in Obergefell v. Hodges, the Constitution “entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” Indeed, just this week in Pavan v. Smith, the Court reaffirmed its holding that the benefits of marriage must be granted to same-sex couples “on the same terms and conditions as opposite-sex couples.”
Nevertheless, the Texas Supreme Court held on Friday that the benefits of marriage may not need to be granted to same-sex couples on the same terms and conditions as opposite-sex couples. And the Texas court reached this frivolous conclusion in an unanimous opinion.
Pidgeon v. Turner challenges the City of Houston’s decision to provide its employees’ same-sex spouses the same benefits that it provides to its employees’ opposite-sex spouses. The city does this because, again, the Supreme Court of the United States commanded in Obergefell v. Hodges that same-sex couples must be provided the opportunity to marry “on the same terms and conditions as opposite-sex couples.”
But two men who object to the city’s decision to comply with Obergefell sued, claiming that they are “devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful.”
The Texas Supreme Court’s decision does not outright declare that these two “devout Christians” should win this case, but it does keep their suit alive by claiming that Obergefell left open an unresolved question.
“The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages,” according to Justice Jeffrey Boyd’s opinion, “but it did not hold that states must provide the same publicly funded benefits to all married persons.”
Texas’ highest civil court claims, in other words, that despite the Supreme Court’s decision that same-sex couples must be allowed to marry “on the same terms and conditions as opposite-sex couples,” a state may be permitted to give same-sex couples a piece of paper declaring them married while denying them the actual legal benefits of marriage.
After reaching this dubious conclusion, the Texas court plays coy, saying that it is merely sending the case back down to a lower court in order to resolve a supposedly open question. “Of course, that does not mean that the Texas DOMAs are constitutional or that the City may constitutionally deny benefits to its employees’ same-sex spouses,” Justice Boyd writes.
One of the plaintiffs in this case, Boyd continues, “contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case. And the Mayor has not yet had the opportunity to oppose it. Both are entitled to a full and fair opportunity to litigate their positions on remand.”
Such a decision makes no sense if you understand the Texas Supreme Court as a court that is trying to resolve legal cases in a timely and efficient manner — but it does make perfect sense if you understand its justices as political actors.
Sure, the law says right now that same-sex couples must be allowed to marry “on the same terms and conditions as opposite-sex couples,” but the law isn’t always fixed. Justices can die or retire.
By delaying this case, the justices on the Texas Supreme Court leave open the possibility that, by the time the case reaches them again, Donald Trump will have added one or two more Neil Gorsuches to the Supreme Court.
And then the law may no longer require same-sex couples to be afforded the same marital benefits as opposite-sex couples.