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Former Texas Supreme Court Chief Justice Seeks Reversal of His Old Court’s Opinion

Posted on: September 25th, 2017 by Art Leonard No Comments

On June 30, the Texas Supreme Court issued a ruling claiming that the U.S. Supreme Court’s Obergefell marriage equality decision from June 2015 did not necessarily require state and local governments to treat same-sex and different-sex marriages the same for government employee benefits purposes. On September 15, asserting that his old court’s decision was clearly wrong, retired Texas Supreme Court Justice Wallace B. Jefferson and lawyers from his Austin firm, Alexander Dubose Jefferson & Townsend LLP, asked the U.S. Supreme Court to reverse the ruling.

Jefferson, an African-American Republican, was appointed to the court in 2001 by Governor Rick Perry, who then elevated him in 2004 to the Chief Justice position, where he served until retirement in October 2013. Justice Jefferson was the first African-American to serve on Texas’s highest court.  His law firm was retained by Houston Mayor Sylvester Turner to represent the City in petitioning the Supreme Court for review.

The case arose in 2013 when then-Mayor Annise Parker, an out lesbian and longtime LGBT rights activist, reacted to the Supreme Court’s decision to strike down the federal Defense of Marriage Act by asking her City Attorney whether the reasoning of that case would require the City of Houston to recognize same-sex marriages of City employees. Although Texas did not allow same-sex marriages then, some City employees had gone out of state to marry and were seeking health care benefits for their spouses under the City’s employee benefits plan.  Parker got the answer she was seeking and ordered an extension of benefits to City employees’ same-sex spouses.

Two local Republican activists, Jack Pidgeon and Larry Hicks, sued the City and Mayor Parker, seeking an injunction against extension of the benefits. They persuaded a state trial judge to issue a preliminary injunction, barring the benefits from going into effect pending the outcome of the litigation.  The court relied on the Texas constitutional and statutory bans on same-sex marriage, which had not yet been challenged in court as of that time.  The City appealed the preliminary injunction.

While the appeal was pending before the Texas Court of Appeals, the U.S. Supreme Court decided the Obergefell case, and the U.S. Court of Appeals for the 5th Circuit, which is based in Houston, promptly affirmed a 2014 marriage equality ruling by the federal district court in San Antonio, DeLeon v. Abbott, declaring unconstitutional the Texas same-sex marriage bans that had been the basis for the trial court’s injunction. Then the Texas Court of Appeals issued a ruling reversing the trial court’s preliminary injunction and instructing that court to decide the case consistent with the DeLeon decision.  Pidgeon and Hicks appealed that ruling to the Texas Supreme Court.

 

After extensively considering the matter, the Texas Supreme Court announced that it would deny review of the Court of Appeals ruling. This outraged Texas Republican leaders, including Governor Abbott, and the state Republican Party went to work encouraging people to bombard the court with communications urging it to reconsider and grant review, and then to reverse the court of appeals.  Perhaps it is not surprising, considering the very political nature of that court, made up entirely of Republican justices (since Texas has not had a Democratic governor since George W. Bush defeated Ann Richards in 1994), that the court succumbed to these demands, reconsidered, and granted review.

On June 26, 2017, the U.S. Supreme Court issued its decision in Pavan v. Smith, a challenge to the refusal by Arkansas officials to list both members of married lesbian couples on birth certificates when one of them gave birth to a child through donor insemination. In that ruling, the Supreme Court made abundantly clear that the Obergefell decision had effectively decided the Pavan case by holding that same-sex couples had the same constitutional rights regarding marriage as different sex couples, extending to the entire “constellation of rights” that went with marriage.  The Supreme Court did not even bother to hold oral argument in the Pavan case, simultaneously granting the petition to review an adverse decision by the Arkansas Supreme Court and issuing a brief memorandum opinion, from which three members of the Court dissented in an argumentative and disingenuous memorandum attributed to recently-appointed Justice Neil Gorsuch and signed by Clarence Thomas and Samuel Alito.  The Pavan opinion left no doubt that same-sex and different-sex married couples must be treated the same by government entities under the 14th Amendment.

But it was evidently not clear to a majority of the Texas Supreme Court, which just days later issued its ruling, reversing the court of appeals and sending the case back to the trial court in Houston, with instructions to give Pidgeon and Hicks an opportunity to try to convince the court that the City of Houston was still required to refuse recognition to the marriages of same-sex couples under its benefits plan, relying on the Texas constitutional and statutory ban that was declared unconstitutional by the 5th Circuit. A majority of the Texas Supreme Court clings to the idea that constitutional rulings by the lower federal courts are not binding on the Texas state courts.    The Texas court suggested that the U.S. Supreme Court’s opinion in Obergefell could be interpreted narrowly to address solely the question whether states must allow same-sex couples to marry and must recognize same-sex marriages contracted from out of state, but that the Obergefell opinion said nothing directly about what rights must be accorded to same-sex married couples.  This is, as Justice Jefferson’s Petition to the Supreme Court makes clear, blatantly untrue.  It treats the Pavan ruling as if Justice Gorsuch’s dissent was speaking for the Court.

Justice Jefferson’s Petition on behalf of Mayor Turner and the City of Houston makes mincemeat out of the work product of his former colleagues, quoting clear language from Obergefell which, among other things, specifically mentioned health insurance as an example of how the denial of marriage to same-sex couples violated their fundamental right to marry and to be treated equally with different-sex couples.

This case is just as clear as Pavan was, and is likely to receive the same treatment from the U.S. Supreme Court, unless that Court finds some procedural or jurisdictional reason to dismiss the Petition without deciding the question presented by the petitioners: “Did the Supreme Court of Texas correctly decide that Obergefell v. Hodges and Pavan v. Smith ‘did not hold that states must provide the same publicly funded benefits to all married persons,’ regardless of whether their marriages are same-sex or opposite-sex?” Some have suggested that because the Texas Supreme Court was ruling only on the validity of a preliminary injunction, the matter is not procedurally ripe for U.S. Supreme Court review, but any attempt to reinstate the preliminary injunction would directly violate the constitutional rights of Houston City employees in clear violation of the Obergefell ruling.

On a parallel track, Lambda Legal filed a federal district court lawsuit in Houston over the summer on behalf of some married LGBT City employees, seeking a declaratory judgment that they are entitled to the same benefits for their spouses that their straight colleagues get. If the Supreme Court does not grant Justice Jefferson’s Petition, it is likely that the matter can be resolved relatively quickly through Lambda’s case, since the City would eagerly comply with an order by the U.S. District Court to provide equal benefits.  This is, at heart, a dispute between the pro-LGBT Houston Democratic city government and the anti-LGBT Republican state government.