Equal Is Equal* (*some exceptions may apply): Marriage Equality in Texas and Pidgeon v. Turner

“Found alternative sides to the things that were said”

Acting in Pidgeon v. Turner (HT @JoeDunman for the opinion copy), the Supreme Court of Texas (SCOTX) has gratuitously protracted the efforts of the city of Houston to treat its lesbian, gay, and bisexual employees constitutionally and hence equally. The court unanimously reversed a lower appeals court’s order allowing Houston to pay equal benefits to married employees whether they are in same-sex couples or different-sex couples. SCOTX then sent the case back down to the trial court for pointless proceedings that can only have one possible outcome under current U.S. Supreme Court precedent – affirmation of Houston’s practice and rejection of the claim that it was unlawful.

The background of the Pidgeon case goes back to the Supreme Court of the United States (SCOTUS) and its first marriage equality holding. On June 26, 2013, SCOTUS decided Windsor v. United States. Windsor held that the heart of the so-called Defense of Marriage Act (DOMA), which denied federal recognition of lawfully state-licensed marriages of same-sex couples, violated constitutional equality principles. In response and on the advice of counsel blessed with more brain cells than ideological fervor, the city of Houston sensibly concluded that it was unconstitutional to deny employees spousal benefits if they had married a same-sex spouse lawfully in another state or country. Then-mayor Annise Parker (later replaced by Sylvester Turner) accordingly directed the city to provide such benefits. A month later, Houston taxpayers and voters Jack Pidgeon and Larry Hicks sued the mayor and city (collectively, “the city”) to enjoin provision of such benefits, contending that it violated various Houston and Texas laws limiting marriage to different-sex couples. Pidgeon and Hicks won in the trial court, but the city appealed.

While the appeal was pending, on June 26, 2015, SCOTUS issued its second marriage equality decision in Obergefell v. Hodges. Obergefell combined cases from four different states and four lower federal courts, but the decision swept even more broadly. Although the Court ruled that “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[,]” it also made clear that “same-sex couples may exercise the fundamental right to marry.” Full stop. All same-sex couples, not just those in a few states. Indeed, the Court noted that part of why it took up these cases was that disagreements among lower courts had “caused impermissible geographic variation in the meaning of federal law.” The Court held as well that “there is no lawful basis for a State” – any state – “to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” And the Court underscored that “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.” 

Under this reasoning, if same-sex couples were allowed to marry but not given the same benefits, they would not be treated equally, and this then would appear not to be marriage “on the same terms” as different-sex couples. Hence the Texas appeals court in Pidgeon’s case reversed the trial court’s injunction against the city.

Convinced of the righteousness of their cause, Pidgeon and Hicks tried to appeal to SCOTX. Like SCOTUS, most of SCOTX’s jurisdiction is discretionary. And the Texas Justices originally denied review in the case on September 2, 2016 – a fact Justice Boyd omits from his recitation of the procedural history of the case in his opinion for the court in Pidgeon. Then, following a mail campaign and pressure from top Texas Republican officials including the Governor, Lt. Governor, and Attorney general (see this Texas Tribune account), the court reversed course and granted review on the day of Donald Trump’s inauguration. (Today SCOTX revealed in its opinion that it treated all such “emails, letters, and postcards” as friend of the court briefs. I’m reasonably confident this is highly unusual as a general matter, but maybe a Texas procedure maven can shed light on whether it’s common practice for SCOTX.)  It bears noting here that all of the Justices on SCOTX face retention elections periodically, with three of them up in 2018, which seems likely to make them more susceptible to public pressure as they try to interpret law.

In its ruling, SCOTX’s primary procedural defense of taking up the case is its claim that the lower court erred in telling the trial court to revisit the case consistently with Obergefell and a Fifth Circuit U.S. Court of Appeals case, DeLeon v. Abbott. De Leon held Texas’s laws excluding same-sex couples from marriage unconstitutional, and SCOTX is right that its reasoning was not generally binding on Texas state courts. But if that was plain error, it was harmless error, as Obergefell made clear as a matter of supreme, federal, constitutional law that De Leon was right.

On the merits, SCOTX remanded because the Justices “agree with Pidgeon that the [U.S.] Supreme Court did not address and resolve that specific issue [of whether government employee spousal benefits must be provided equally] in Obergefell. ‘Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best . . . .’ Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017). 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—unlike the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.” (Obergefell made plain that they are unconstitutional.)  And, disingenuously or shockingly inept, SCOTX cited SCOTUS’s ruling four days earlier in Pavan v. Smith to support its claim that Obergefell does not clearly require equality in government treatment of married couples:  “Already, the Supreme Court has taken one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell, and there will undoubtedly be others. See Pavan, ___ U.S. at ___, 2017 WL 2722472, at *2.” said Pidgeon.

Pavan addressed a constitutional challenge to Arkansas’s refusal to list both spouses of two married female couples on the birth certificates of their children. Because Arkansas law provides that a husband is generally to be listed on the birth certificate when his wife gives birth, the couples had correctly argued that Obergefell’s equality mandate required that a wife be similarly listed when her wife gives birth. The Arkansas Supreme Court (ASC) disagreed, and the couples sought review from SCOTUS. 

Rather than grant review and receive full briefing and hold argument about whether or not this view of Obergefell is correct, however, SCOTUS summarily reversed ASC. As noted in a dissent in Pavan by new SCOTUS Justice Neil Gorsuch, installed by Donald Trump after Senate Republicans acted to deprive President Obama of his constitutional authority to fill Justice Scalia’s seat, “[s]ummary reversal is usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’” The majority in Pavan apparently thought that was the case. Obergefell, they noted in the first sentence of the opinion summarily reversing ASC, explained that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” Because Arkansas’s refusal to list both married mothers on birth certificates “infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage,’ [quoting Obergefell], we reverse the state court’s judgment.” “Obergefell proscribes such disparate treatment[,]” SCOTUS explained. Thus, SCOTUS understands, as would reasonable people not hell bent on undermining marriage equality, that Obergefell’s interpretation of the Constitution means that government cannot treat married same-sex couples differently from married different-sex couples.

In trying to limit the reach of Obergefell and portray that case as leaving open for debate matters it clearly does not, ASC’s Pidgeon decision sinks even further. It contends that “[o]n the same day the Supreme Court issued its per curiam opinion in Pavan, it also granted certiorari in another case involving a same-sex-marriage issue Obergefell did not address. See Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, — U.S.L.W. — (U.S. June 26, 2017) (No. 16-111). The Court’s decision to hear and consider Masterpiece Cakeshop illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.” This is risible. (Accord, Joshua Block in this tweet.)

Masterpiece Cakeshop is about the constitutional rights (religious and/or expressive) of people who want to resist a state anti-discrimination law that would bar a maker-seller of wedding cakes from discriminating against those who want them for a wedding of a same-sex couple. It is not about what equality of treatment the Constitution requires of government to extend to different-sex and same-sex couples who marry. Masterpiece Cakeshop truly is, at best, tangential to Obergefell and its vindication of same-sex couples’ constitutional right to marry and right to equal protection. Pavan and Pidgeon, however, are clearly about the equal treatment of married couples, same-sex or different-sex. And the teaching of Obergefell and Pavan are pellucid: equal is equal.

That is what the Texas trial court should now say on this pointless remand in Pidgeon, and if it does not, it is what the state appeals court and if necessary SCOTX should say. SCOTX claimed that “Pidgeon 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.” He is “entitled to a full and fair opportunity to litigate [his] position[] on remand,” SCOTX said. But there was no need to disrupt the proceedings that would have happened on remand by granting review of the Texas Court of Appeals decision. And since SCOTX in Pidgeon vacated the trial court’s temporary injunction against Houston’s providing equal benefits, this is ultimately just political theater. Harmful political theater, though, designed to give aid and comfort to those who would continue to resist the Supreme Court’s constitutional equality decision in Obergefell and perhaps even to provide an occasion for SCOTUS to revisit marriage equality if more judges of Neil Gorsuch’s ilk find their way onto the U.S. Supreme Court.

Appeals Court Sustains Temporary Restraint on Trump Immigration EO

“You got your tricks

Good for you

But there’s no gambit I don’t see through”

Yesterday the U.S. Court of Appeals for the Ninth Circuit unanimously held that the federal trial judge in Seattle who granted a nationwide temporary restraining order (TRO) suspending Trump’s immigration ban executive order (EO) did not exceed his discretion.  The Court of Appeals therefore rejected Donald Trump’s emergency motion.  The per curiam (unsigned, with authorship attributed simply to the court) appellate opinion, styled an “Order” by the three-judge panel, held that the President and official defendants had failed to show that they were likely to establish on appeal of the TRO that the EO was lawful.  In assessing legality, the court primarily focused on individuals’ rights under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, though it also noted (without definitively ruling) that the plaintiff states’ arguments that the EO unconstitutionally discriminated on the basis of religion were serious.  The Court also held that Trump had failed to show that irreparable injury would follow if the trial judge’s TRO were not immediately lifted.

The lawsuit, filed by the states of Washington and Minnesota, challenged three aspects of the EO.  As the appellate court explained, “section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries,” all of which have majority-Muslim populations, as widely observed in the media following issuance of the EO.  Sections 5(a)-5(c) stop the US from accepting refugees for 120 days, afterward requires prioritization of claims based on religious persecution where someone is a religious minority (such as, e.g., Christians from the seven countries at issue), and indefinitely bars refugees from Syria.  Third, section 5(e) of the EO specifies that it is in the national interest to make exceptions to the EO (pursuant to authority in section 3(g)) “when the person is a religious minority in his country of nationality facing religious persecution.”

The district court judge had held a hearing and subsequently entered a nationwide TRO temporarily halting enforcement of the EO, and the Trump administration filed an emergency motion with the Court of Appeals, defending the claimed lawfulness of the order under the Constitution and federal statutes and asking the court to stay the TRO.  The oral argument in the case revealed concerns about the order from all three judges – William C. Canby, Richard R. Clifton, and Michelle T. Friedland – with Canby’s and Friedland’s concerns including worries whether the EO was intended to discriminate on the basis of religions against Muslims; Clifton seemed more skeptical of the latter claim.

Photo: -, AFP/Getty Images

The unanimous opinion arguably reflected this range of opinion.  After a brief analysis of why the Court of Appeals had jurisdiction to review the TRO, the court turned to the states’ standing to sue in federal court over the EO.  Federal case law limits the sorts of disputes that can be heard in the federal courts, limiting them to ones where the plaintiffs have “standing,” roughly meaning a sufficiently concrete stake in the dispute.  Here, the EO directly affects immigrants and only derivatively harms the plaintiff states themselves.  State universities are arms of the state for legal purposes here, and the court concluded that the linkage between the EO and harm to the states was straightforward:  “The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.”  The court therefore concluded the states had standing for the suit to begin with.

The court also held that it had the authority in our constitutional scheme of governance to review the states’ legal claims, emphatically rejecting the administration’s claims that the President’s determinations about the national security necessity of his EO were judicially unreviewable, a point on which the panel had pressed the administration’s attorney at oral argument.  The court conceded that he was entitled to judicial deference in such matters, but invoked a range of Supreme Court precedents to hold that the judiciary nonetheless has an important role to play in ensuring the government acted constitutionally.  These included the George W. Bush-era “War on Terror” case Boumedienne v. Bush.

To decide whether it should stay the trial court’s TRO, the Court of Appeals applied well established case law requiring it to consider four factors.  Those are “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”  Concerning the last factor, the court observed that different aspects of the public interest support each side in the case.  “On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”  But the court had noted that that factor, and the third, only came into play if the party seeking the stay – here, Trump – established both of the first factors.  As noted above, the court held that he had not prevailed on those prongs.

The majority of the court’s legal analysis of the lawfulness or unlawfulness of the EO was devoted to explaining why Trump had not shown his order was likely to be held constitutional on appeal.  And it relied primarily on the Due Process Clause of the Fifth Amendment.  That clause forbids the government to deprive individuals of “life, liberty, or property, without due process of law.”  This clause has a procedural aspect upon which the court was relying; when the government deprives people of a protected liberty interest, for example, it must afford them notice and the opportunity to be heard, that is, “the opportunity to present reasons not to proceed with the deprivation and have [those reasons] considered” by the government.  The EO, of course, did not do so, categorically excluding sweepingly defined classes of people of their previous legal opportunity to enter the U.S. Trump argued that this was not necessary, contending that (as the court put it) “most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.”

This, the court held, was wrong.  Its opinion relied on numerous Supreme Court decisions to show that lots of noncitizens have due process rights concerning their right to travel into or out of the country.  Making the textual point that the Due Process Clause protects “persons,” not just citizens, the court pointed to various classes of persons who do have due process rights relevant here.  These included “certain aliens attempting to reenter the United States after travelling abroad[,]” such as lawful permanent residents (LPRs).  Although the White House counsel reinterpreted the EO not to apply to LPRs after its initial roll-out, the court rejected the notion that this was binding in a way that saved the order from constitutional challenge on their behalf.  That move did not render the case moot because it was not “absolutely clear” that the EO would not once again be applied to LPRs.  Moreover, the court pointed to Supreme Court case law suggesting that beyond LPRs, the EO could be violating the due process rights of “other persons who are in the United States, even if unlawfully; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart; refugees; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” (citations omitted)

Trump’s back-up position was that the TRO was overbroad in that it extended past LPRs, and even beyond “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future[,]” and in that it extended beyond Washington and Minnesota (the plaintiff states) to the entire nation.  The court rejected the former, population overbreadth claim because it would leave unprotected some noncitizens who have viable due process claims.  It rejected the latter, geographic overbreadth claim by invoking the Fifth Circuit Court of Appeals decision sustaining a nationwide injunction against President Obama’s program of Deferred Action for Parents of Americans.  Without affirmatively endorsing that court’s view that “such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy,” the Court of Appeals here said Trump had not shown that the contrary view was likely to prevail.  And, apropos both overbreadth claims, the court said it was not their role to rewrite the EO to save it from its likely unconstitutionality.  Thus, Trump had not established the likelihood that he would prevail on appeal, and so was not entitled to a stay of the trial judge’s TRO.

The Court of Appeals then also flagged the religious discrimination claims pressed by the plaintiff states against the EO, which they contended violated the Establishment Clause of the First Amendment and the Constitution’s equal protection limitation on federal action.  If Judge Clifton had felt particularly strongly about those claims, he might have insisted that any opinion he joined say nothing about the claim beyond ‘we don’t need to talk about it at all because we’re ruling on due process grounds.’  Yet the opinion went there.  It recounted the constitutional principle against religious favoritism embodied in the Establishment Clause.  It sympathetically recounted the states’ argument on this front, specifically affirming the propriety of relying on evidence of religious favoritism beyond the face of the EO, such as “numerous statements by the President about his intent to implement a ‘Muslim ban.’”  And, as noted earlier, it characterized the religious favoritism arguments as raising “serious allegations and present[ing] significant constitutional questions.”  Only then did it say that it would withhold judgment on those issues (as distinguished from the due process issues) until full briefing on the merits of the appeal.

Moreover, the Court of Appeals held that Trump and the other federal defendants failed to show that they would suffer irreparable injury – that could not be addressed with an eventual favorable decision possibly after a full trial – and so was not legally entitled to a stay of the TRO.  The court recognized that combatting terrorism was certainly a powerful governmental interest.  But, it noted: “Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.”  It rejected the government’s claim to superior knowledge of risks of terrorism, rightly noting that the government frequently provides courts evidence under seal, so that their claims can be assessed while secrecy is preserved.  In contrast, the court found that the states had provided ample evidence of the irreparable harms the EO causes, including “that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. ”

It’s not at all clear whether the Trump administration will seek review of the Ninth Circuit Court of Appeals ruling in the Supreme Court.  They well might, on the theory that they have little or nothing to lose.  At worst, the Supreme Court would affirm the Ninth Circuit Court of Appeals, leaving the status quo (pre-EO) in place.  On the other hand, if Trump can convince five Justices of the Supreme Court that the TRO was overbroad in a way that should be reigned in, Trump might claim a victory about which he could crow in public, in social media.  It’s not clear that he would be able to – particularly with revelations that he is signing executive orders without appreciating what they do.  The doctrine of judicial deference to the Executive presupposes a reasonably competent or properly functioning president, which it regrettably is increasingly unclear the United States enjoys today.

Federal Court Holds Texas Marriage Exclusion Unconstitutional

“Reminds me of the one that I love”

On February 26, 2014, federal district judge Orlando Garcia held that Texas’s state constitutional and statutory provisions excluding same-sex couples from marriage and refusing to recognize such couples validly married in other jurisdictions likely violate the U.S. Constitution.   The ruling in de Leon v. Perry granted the plaintiff couples’ motion for a preliminary injunction barring enforcement of the marriage exclusion and nonrecognition laws.  Same-sex couples are not marrying yet in the Lone Star State because the judge cautiously and expressly followed the U.S. Supreme Court’s lead by staying his order, putting the ruling on hold until after expected proceedings in the U.S. Court of Appeals for the Fifth Circuit are complete.  Judge Garcia’s order joins previous preliminary or final court rulings in favor of marriage equality by federal judges in Ohio, Utah, Oklahoma, Kentucky, Virginia, and Illinois, as well as state court rulings under the constitutions of New Jersey and New Mexico, all decided since the Supreme Court’s striking down a key part of the “Defense of Marriage Act” (DOMA) last June in United States v. Windsor.  Collectively, they are creating a well-trod path the U.S. Supreme Court could follow when it takes up the issue, sooner rather than later thanks to the welter of court decisions striking down state marriage bans and cases seeking to do likewise.

Plaintiffs Cleopatra de Leon and Nicole Dimetman, a couple since 2001, married in Massachusetts in 2009 because their home state Texas would not let them; it now refuses to recognize their marriage.  Plaintiffs Victor Holmes and Mark Phariss, who started dating in 1997, were denied a marriage license when they applied in Texas in 2013.  They sued in November 2013, and three months later they have now won an important victory.  The federal district court ruled on their motion for a preliminary injunction so that the state would not be able enforce its discriminatory marriage laws even before the court reaches a final judgment and may enter a permanent injunction.  (Since it stayed its decision, neither the plaintiffs nor any other same-sex couples will be getting married in Texas until after the appeals process is completed.)  Thus, rather than rule that in fact the state’s marriage laws are unconstitutional, the court had only to conclude that the plaintiffs had shown it likely that the laws are unconstitutional.  But the court’s reasoning in granting the motion makes it extremely unlikely that any further proceedings would make it change its mind about the laws’ permissibility.

After a quick tour of the “politically charged and controversial debate regarding the right to marry, and particularly, the right of same-sex couples to marry in the United States,” including the development of legal marriage for same-sex couples in numerous states and the Supreme Court’s invalidation of part of DOMA, the court turned to its analysis.  On the merits, Judge Garcia first concluded (as have a number of other courts recently) that the Supreme Court’s 1972 summary dismissal without opinion of a gay couple’s marriage lawsuit from Minnesota in Baker v. Nelson was no longer binding precedent.  He then turned to whether the plaintiffs had shown a likelihood that they would prevail on their equal protection claim, their fundamental right to marry claim, or both.

Under equal protection, the court followed several others that have decided recently challenges to marriage exclusions in not definitively resolving the doctrinal test to apply.  It considered the factors commonly taken as bearing on how suspicious courts should be of sexual orientation discrimination, that is, what level of scrutiny it should apply (“rational basis review,” a “heightened” or “intermediate scrutiny” less deferential to the government, or a very skeptical “strict scrutiny”).  It found, and this was hardly disputable, that  gay and lesbian people “have been subjected to a long history of discrimination.”  The court doesn’t definitively make a factual finding, but merely notes, that “Plaintiffs argue that, like other suspect classifications, sexual orientation has no ‘relation to [the] ability’ of a person ‘to perform or contribute to society.’”  Citing previous equal protection litigation, the court concluded that “Furthermore, the scientific consensus is that sexual orientation is an immutable characteristic.”  And fourth, the court reasoned that “the history of same-sex marriage bans across the nation illustrates the historical lack of political power possessed by gays and lesbians.”  Although these factors all pointed toward one of the less deferential forms of review and the court adjudged the plaintiff’s arguments “compelling,” Judge Garcia concluded that “it is not necessary to apply heightened scrutiny to Plaintiffs’ equal protection claim since Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review.”

The court rejected the state’s claim that excluding same-sex couples from marriage was rationally related to ensuring that children would be raised by a father and mother or encouraging “stable family environments for responsible procreation.”  Besides pointing out the illogic and utter lack of evidence for such contentions, the court quoted and followed other recent courts on these point, such as those holding Utah’s and Oklahoma’s discriminatory marriage laws unconstitutional.  (Like many other marriage cases, it also quoted one of Justice Scalia’s dissents, the one from Lawrence v. Texas where he had reasonably suggested that “the encouragement of procreation” could not justify denying marriage to same-sex couples “since the sterile and elderly are allowed to marry.”)  Indeed, the court noted that excluding same-sex couples from marriage affirmatively harms the children they are raising or may have.  And, again like other courts, Judge Garcia rejected appeals to tradition.  For these reasons, the court concluded that Texas’s marriage exclusion was “unconstitutional because without a rational relationship to a legitimate governmental purpose, it denies same-sex couples the benefits, dignity and value of celebrating marriage and having their out-of-state marriage recognized.”  So, although the court technically only had to rule that the plaintiffs were likely to win on their constitutional claim, its actual reasoning appears to be that plaintiffs have established their claim, which leaves little or nothing for it to do next to render a final judgment in their favor.

Curiously, the court said that because plaintiffs showed they were likely to win on their equal protection claims it need not address their other constitutional claim, but then proceeded to address it anyway.  On the plaintiffs due process claim, the court reasoned that marriage is a fundamental right, that it is “the right to marry the partner of one’s choosing,” and thus that same-sex couples were not seeking a new putative “right to same-sex marriage” just as the Supreme Court did not frame the right at issue in Loving v. Virginia as a “right to interracial marriage.”  Because the state was completely denying this fundamental right to same-sex couples, it had to survive strict scrutiny.  But because its marriage exclusion was not even rationally related to a legitimate governmental interest, it necessarily was not narrowly tailored to a compelling governmental interest, the test of strict scrutiny.

Turning to Texas’s refusal to recognize marriages of same-sex couples from other jurisdictions, the court treated this as implicating a right to marriage recognition separate from the right to marry.  Finding Windsor to give inadequate guidance as to the proper level of scrutiny, the court found it sufficient to apply rational basis review because the state’s law could not survive even that deferential review.  It did not matter that Section 2 of DOMA, not ruled on in Windsor, purports to give states permission to refuse recognition of the marriages of same-sex couples, for “’Congress does not have the power to authorize the individual States to violate the Equal Protection Clause,’” the court concluded, quoting the Supreme Court’s 1971 decision in Graham v. Richardson.

Following the foregoing analyses on the merits, it took the court only a few pages to establish that the plaintiffs were entitled to a preliminary injunction.  They had established a likelihood of prevailing on the merits of their constitutional claims.  They were being irreparably injured by being denied the right to marry or recognition of their marriage, resulting in the denial of countless rights and obligations.  The balance of equities favored the plaintiffs over the state, and it would be in the public interest to issue the injunction, since the laws were unconstitutional (or at least likely unconstitutional) and since the court was not yet changing the status quo, instead staying its own injunction until after appeals are finished.

There was little new in this next step on the path to marriage equality across the nation.  And the court’s opinion did not contain the rhetorical flourishes seen in some other recent marriage decisions.  That in itself may be an encouraging sign, for it may reflect a shift from viewing the establishment of same-sex couples’ marriage rights as historically momentous to viewing it as a matter of course, merely the clear requirement of our nation’s constitutional commitment to equality.  In all likelihood, it is both.