“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.
