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.