Independence Day: The Texas Supreme Court Refuses to Hold That the Federal Constitutional Right of Same-Sex Couples to Marry Has Full Force in Texas

Posted in: Civil Rights

Texas law requires children who attend public schools to begin their days with this trifecta: the Pledge of Allegiance, the Texas Pledge (“Honor the Texas flag; I pledge allegiance to thee, Texas, one state, under God, one and indivisible”), and a minute of silence to “reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student.”

This series of recitations is perhaps a metaphor for the way Texas operates more generally—a nod to its membership in the United States, followed by an implicit embrace of greater allegiance to the state, and, finally, a reminder that religion not-so-subtly guides the government’s hand. What else could explain the bizarre and unanimous ruling of the Texas Supreme Court last week in Pidgeon v. Turner, in which it refused to give the clear and undeniable effect to the U.S. Supreme Court’s ruling in Obergefell v. Hodges, which recognized a constitutional right of same-sex couples to marry. Rather, the Texas court remanded the case so that a lower court could consider, in essence, whether Texas will honor the U.S. Constitution or not.

The Origins of Pidgeon v. Turner: Timing Is Everything

This case began with a lawsuit by two individual taxpayers, Jack Pidgeon and Larry Hicks, who sought to stop the City of Houston from paying spousal insurance benefits for employees married to a person of the same sex. At the time the case was first filed, Texas, like many other states, banned the celebration and recognition of marriage by same-sex couples. These state laws were modeled on the federal Defense of Marriage Act (DOMA), which Congress had enacted in 1996 in an attempt to stop the recognition of same-sex marriage at the federal level and to ensure that states would have the ability to deny recognition of same-sex marriages from other states. At the high point of opposition to same-sex marriage in the United States, more than forty states expressly banned it; Texas’s version was adopted by voters in 2005.

The legal landscape began to shift in 2004 when Massachusetts recognized that same-sex couples had the right to marry under the state constitution. Another cluster of states followed in 2008, and the tides began to seriously shift in 2012, when measures to support marriage equality began to pile up in rapid succession and soon vastly outnumbered those designed to inhibit it. (The details of this shifting landscape are discussed in greater detail here.)

In 2013, the U.S. Supreme Court ruled, in United States v. Windsor, that the federal-law provision of DOMA violated the federal constitutional guarantees of due process and equal protection. Given the federal government’s usual practice of deferring to state determinations of marital status when administering federal laws and programs, its sudden refusal to give effect to one class of marriage, for every federal-law purpose, was a discrimination of an “unusual character” that raised an inference of animus and violated the Constitution.

Based on Windsor, the city attorney for the City of Houston advised the mayor that the City “may extend benefits” to city employees with same-sex spouses who were legally married in other states “on the same terms it extends benefits to heterosexual spouses.” As dozens of lower federal courts and eventually the U.S. Supreme Court would also conclude, the ruling in Windsor had thrown into question the ability of states to deny recognition of same-sex marriages from elsewhere when they traditionally gave effect to other prohibited marriages based on a principle of comity. Then-mayor Annise Parker followed the lawyer’s advice and ordered the human resources department to extend spousal benefits to all city employees, regardless of whether they were married to a person of the same or different sex.

A month later, Pidgeon and Hicks sued. In their view, the City of Houston was violating the state’s so-called mini-DOMA (as well as a parallel, city-level DOMA), which prohibited the celebration or recognition of marriages by same-sex couples. They claimed taxpayer standing to challenge the expenditure of “significant public funds on an illegal activity.” Windsor, they believed, blocked enforcement only of the federal DOMA and had no effect on Texas’s mini-DOMA. A trial court agreed and enjoined the mayor from furnishing benefits to same-sex spouses of city employees.

Obergefell v. Hodges: Marriage Equality is the Law of the Land

Federal courts all over the country debated the scope of Windsor, holding in rapid-fire succession that the reasoning of Windsor meant that all attempts to ban the celebration or recognition of same-sex marriage violated the federal Constitution. Only one federal appellate court, the Court of Appeals for the Sixth Circuit, held to the contrary; in DeBoer v. Snyder, it concluded that states were not required by federal constitutional principles to allow the celebration or recognition of marriages by same-sex couples. The Supreme Court consolidated the five different cases covered by DeBoer, in which some plaintiffs sought issuance of a marriage license but others, who were already married, sought specific benefits they had been denied that related to birth certificates, death certificates, insurance benefits, and so on.

In 2015, the Supreme Court put an end to the controversy about marriage equality. In no uncertain terms, it recognized a federal constitutional right of same-sex couples to marry. In the words of Justice Kennedy, writing for a 5-4 majority and as the author of the fourth in a quadrilogy of gay rights cases:

The Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. . . . [T]he Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.

One might reasonably have expected the Pidgeon case, then pending before the Texas court of appeals, to be dismissed. The Houston mayor filed a supplemental brief urging that the injunction be reversed on grounds that Obergefell does not permit the City of Houston to exclude same-sex couples from whatever benefits it otherwise provides to married employees. Pidgeon and Hicks responded, however, with a brief arguing that while Texas may be required to issue marriage licenses to same-sex couples, it does not have to “pay taxpayer-funded benefits to same-sex relationships.” The court of appeals rightly agreed with the City of Houston, citing Obergefell’s very clear holding in support.

Undeterred, Pidgeon and Hicks sought discretionary review by the Texas Supreme Court. The court initially declined to review the case, in September 2016, and Justice Devine filed a long dissent to that decision. What followed was a campaign by religious conservatives to convince the court to change its mind and take the case. Briefs were filed by the governor, lieutenant governor, attorney general, and other elected and appointed public officials. The briefs were an eclectic collection, making a series of very weak arguments in order to convince the court to do everything from ignore Obergefell completely to “narrowly construe” it.

The campaign was not limited to lawyers or public officials. In the wild west of Texas appellate procedure, anyone can send an e-mail, voicemail, or brief to the Texas Supreme Court, and everything received becomes part of the official docket. One citizen sent an e-mail telling the court he was “VERY disappointed” by the court’s refusal to hear the case and reminded them that they “were elected to stand up for religious liberties and our Tenth Amendment Constitutional States’ Rights, rather than caving into the homosexual political movement.” Another praised Justice Devine for “standing up for traditional marriage” and exemplifying his “belief in God’s design for man and woman!” One constituent urged the court to reconsider because her tax dollars had been used to support homosexuals. These docket entries made no legal arguments, but they did serve as a reminder to the justices of the Texas Supreme Court, nine elected Republicans serving short terms (6 years) on the bench, that they were risking their seats by failing to endorse the social and political views of some voters and officials. On January 20, 2017, the day of Donald Trump’s presidential inauguration, the Texas Supreme Court reversed itself and agreed to hear the case.

Pidgeon v. Turner: The Case That Should Never Have Been Litigated

This case revolves around only a single substantive issue: Whether a governmental entity may exclude same-sex couples from benefits it provides to married couples generally without running afoul of the federal Constitution, as interpreted by the Supreme Court in Obergefell v. Hodges. The answer to that relatively simple question is a resounding no. As we explained in an amicus brief filed in Pidgeon v. Turner on behalf of constitutional and family law scholars from law schools across Texas, Obergefell reached and resolved this issue.

Obergefell’s reasoning and holding do not leave any doubt that the right to marry includes not only the issuance of a valid license, but also the benefits (and obligations) linked to marriage. Throughout the opinion, the majority repeatedly admonished that same-sex couples have a right to “civil marriage on the same terms and conditions as opposite-sex couples.” As Justice Kennedy explained, “the petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex” (emphasis added). The Constitution “does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Thus, the Court concluded, the “State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” To hold otherwise “would disparage their choices and diminish their personhood.” This holding reflects the Court’s view, elaborated at length in Obergefell, that the right of same-sex couples to marry arises from both the Due Process and Equal Protection Clauses. A state or local law denying benefits to married same-sex couples alone is a literal exclusion of them from “civil marriage on the same terms and conditions as opposite sex couples.”

States are not required to provide any particular benefits to married couples, but once provided, they cannot exclude same-sex couples. As Justice Kennedy explained,

The States have contributed to the fundamental character of the marriage right by placing the institution at the center of so many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage.

That the right to marry includes not only a marriage license, but also available benefits, is a position confirmed by dissenters as well as the majority. Eight justices on the Court, including three in dissent, flatly rejected the proposition that same-sex couples would have to argue, post-Obergefell, for equal marital benefits on a case-by-case basis. The majority specifically rejected the idea that same-sex couples would have to litigate for each benefit: “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.” In dissent, Chief Justice Roberts agreed, though in lament rather than support. Cases involving selective tangible benefits, he wrote, “will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples.”

As both the majority and dissenters recognized, the same-sex couples in Obergefell sought marriage both as a status and as a vehicle to obtain equal access to marriage-related benefits. Chief Justice Roberts agreed that the plaintiffs sought “public recognition of their relationships, along with corresponding government benefits.” Indeed, the cases consolidated in Obergefell challenged five different state mini-DOMAs, specifically challenged the exclusion of married same-sex couples from certain benefits and rights made available to all opposite-sex married couples, and thus made marital benefits a key component of the decision. One plaintiff in Obergefell v. Wymyslo sought to have his marital status reflected on his death certificate, as he married in the wake of his impending death from Lou Gehrig’s disease. The plaintiffs in Tanco v. Haslam sought benefits related to property protection, combining separate health insurance plans into a family plan, and legal rights associated with a child’s birth. The plaintiffs in Bourke v. Beshear sought benefits of marriage including the inheritance tax exemption, healthcare benefits, intestate inheritance rights, loss of consortium damages, and workers’ compensation. Finally, the plaintiffs in Henry v. Himes sought the right to list both spouses on a child’s birth certificate. In each of these cases, the plaintiffs won the identified benefit at the district court level, lost it on appeal to the Sixth Circuit because of the ruling in DeBoer v. Snyder, and won it back in the Supreme Court with the ruling in Obergefell. Were the benefits of marriage not in play in Obergefell, the Sixth Circuit’s ruling as applied to these four cases would not have been reversed.

This discussion should make clear that the position urged by Pidgeon and Hicks, and their amici, was just not tenable in light of the Obergefell opinion. They argued for a “narrow construction” of Obergefell, under which married same-sex couples would have only a right to be “licensed and recognized by the State, not to obtain any type of government benefits for one’s spouse.” Equality as to every right attached to marriage, in their view, would be up for grabs, available to same-sex couples only by grace of the State. This was not a construction of Obergefell—“narrow” or otherwise—but a defiance of it. That the fundamental right of same-sex couples to marry cannot be disentangled from the equal right to the benefits and privileges that come with it could not have been made more clear. Yet, the Texas Supreme Court has just refused to reach this conclusion.

Pidgeon v. Turner: The Merits

In a unanimous decision, the Texas Supreme Court remanded the Pidgeon case for further proceedings. That may not seem like a significant ruling, but its premise is startling. Fortunately, the court did reject Pidgeon’s insupportable invitation for an instruction that the trial court “narrowly construe” Obergefell because, in Pidgeon’s words, it is “poorly reasoned,” has “no basis in the text or history of the Constitution,” and does not “faithfully interpret” the Constitution. But the Texas Supreme Court agreed with Pidgeon “that the Supreme Court did not address and resolve” the issue whether states and cities are required to provide equal benefits to same-sex couples. The key language in the Pidgeon opinion states that

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, but it did not hold that states must provide the same publicly funded benefits to all married persons, and . . . it did not hold that the Texas DOMAs are unconstitutional.

The Texas Supreme Court conceded that Obergefell is “relevant” to the issue of equal benefits, and that its ruling “does not mean that the Texas DOMAs are constitutional” or that “the City may constitutionally deny benefits to its employees’ same-sex spouses.” But it wasn’t willing to conclude what Obergefell clearly requires—that states cannot exclude same-sex couples from benefits they otherwise provide to married couples.

The Texas court remanded the case for the parties to fight out in the trial court whether Obergefell requires the City of Houston to extend the benefits it wants to extend (but to which some taxpayers object) to same-sex couples. The court said it could not resolve claims that “have not yet been fully developed or litigated.”

The Texas court is simply wrong, as explained above, that Obergefell is not dispositive of the issue presented in Pidgeon.

First, Supreme Court rulings are binding on state courts, and the federal Constitution trumps the state constitution. These might seem like statements too obvious to utter, but state officials in this case filed briefs suggesting the contrary.

Second, the reasoning of Supreme Court rulings is also binding, which means that when the Supreme Court invalidates the mini-DOMAs of five states in a ruling, all other state DOMAs with the same scope are also invalidated. When the Supreme Court struck down Virginia’s ban on interracial marriage in 1967, in Loving v. Virginia, all remaining miscegenation laws became a dead letter—instantly. When it struck down Texas’s sodomy ban in Lawrence v. Texas, all other laws banning sodomy between consenting adults also became invalid—instantly. The Texas Supreme Court once certainly understood that this is how the Constitution works—it rejected as “so utterly without merit that we overrule it without further discussion” the argument that Texas courts could ignore the ruling in Brown v. Board of Education because the state’s segregation laws were not specifically struck down by the U.S. Supreme Court.

Third, the Supreme Court itself has made clear that benefit-by-benefit disputes are not warranted after Obergefell. Just last week, it summarily reversed an opinion of the Arkansas Supreme Court that purported to allow the state to refuse same-sex married couples the right to place both spouses’ names on a child’s birth certificate. In that case, Pavan v. Smith (discussed in more detail here), the Court issued a per curiam decision, without the benefit of briefing or oral argument, in which it concluded that the Arkansas ruling “denied married same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.” Because Arkansas law permitted spouses to be listed on a birth certificate when there was no biological tie—or when the biological tie was questionable—the right to placement was simply a benefit of marriage rather than an accurate biological record of a child’s origins. By choosing to make “birth certificates more than a mere marker of biological relationships,” it has chosen “to give married parents a form of legal recognition that is not available to unmarried parents.” Benefits of marriage, the Court made clear, are to be made available to same-sex couples on the same terms as opposite-sex couples. The court in Pidgeon mentions Pavan only briefly and does not seem to see its relevance, deferring instead to a random sentence in a Fifth Circuit case suggesting that the “ramifications” of Obergefell are open for discussion.


The Texas Supreme Court closes the Pidgeon opinion with this sentence: “Pidgeon and the Mayor, like many other litigants throughout the country, must now assist the courts in fully exploring Obergefell’s reach and ramifications, and are entitled to the opportunity to do so.” That is true only to the extent those ramifications are not clearly resolved by Obergefell. If the Texas Supreme Court thought a ruling on the merits was not warranted because of the procedural posture of the case (an interlocutory appeal), then it could have remanded the case for “proceedings consistent with Obergefell v. Hodges.” Or it could have resolved the issue on the merits because it began the opinion by finding that it had the jurisdiction to do so. But it had no business ignoring the plain meaning of a Supreme Court opinion on the scope of a federal constitutional right—regardless of whether the justices genuinely disagree with Obergefell or simply fear the political fallout of calling a spade a spade. If schoolchildren are to pledge allegiance to Texas, the state must take its membership in the United States seriously.

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