And then There’s Texas

June is LGBT pride month and this year it concludes with a decision out of the Texas Supreme Court showing that much work remains to secure LGBT civil rights.

On Monday (June 26), the United States Supreme Court granted certiorari and summarily reversed the Arkansas Supreme Court in Pavan v. Smith, No. 16-992, 582 U.S. ___ (June 26, 2017) (per curiam), holding that Arkansas could not refuse to name both spouses on a birth certificate because they were a same-sex couple. “As this Court explained in Obergefell v. Hodges, 576 U.S. ___ (2015), the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” Opposite-sex couples have the right to be listed on birth certificates, even where the conception occurred through artificial insemination. The Court stated bluntly: “Obergefell proscribes such disparate treatment.” Pavan, slip. op. at 3. The unsigned opinion was joined by the five-justice majority and the Chief Justice. Since summary reversal is reserved for cases where the law is quite clear, it would seem that the Court means what it said, “In considering those challenges, we held the relevant state laws unconstitutional to the extent that they treated same-sex couples differently from opposite-sex couples.” Id. at 4.

Thus, one would think that it would be clear that denying benefits to city employees who are married to persons of the same sex would be unconstitutional under Obergefell. One would be wrong.

Pidgeon v. Turner, No. 15-0688 (Tex. June 30, 2017), began as a suit against Houston after the city began conferring benefits to same-sex couples in light of United States v. Windsor, 133 S. Ct. 2675 (2013). The plaintiffs were tax-payers who opposed marriage equality and claimed that the city’s actions violated the Texas constitution, which expressly prohibited recognition of the marriages of same-sex couples. The trial court agreed with the plaintiffs and issued a temporary injunction. The city and mayor appealed, and while their appeal was pending, the Supreme Court decided Obergefell. The appellate court held that denying benefits violated the constitution as construed by Obergefell and reversed.

The plaintiffs petitioned for certification to the Texas Supreme Court, which initially denied certification over a dissent. The plaintiffs moved for reconsideration aided by amici and the court reversed its denial and took the case. Oh, by the way, justices in Texas are elected.

Today, the Texas Supreme Court unanimously reversed and remanded for a new trial. In a nutshell, the Pidgeon court basically said, “We know we can’t deny marriage licenses to same-sex couples, but we don’t know if Obergefell means we have to treat same-sex marriage couples the same as opposite-sex couples.” The court left it to the trial court to figure that out. The Pidgeon court did acknowledge the existence of Pavan for the purposes telling the trial court it should consider Obergefell on remand. Pidgeon, slip. op. at 19 & n.18. But it further stated that Obergefell “did not hold that states must provide the same publicly funded benefits to all marriage persons, and—unlike the Fifth Circuit in De Leon [v. Abbott, 791 F.3d 619 (5th Cir. 2015)]—it did not hold that the Texas DOMAs are unconstitutional.” Pidgeon, slip. op. at 19. Because apparently a summary reversal of another state’s Supreme Court upholding disparate treatment for same-sex couples wasn’t clear enough.

So look for a petition for certiorari in Pidgeon with a grant and summary reversal in October, accompanied by a dissent by Justices Thomas, Alito, and Gorsuch. Happy Pride!

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