In November, recently re-elected openly lesbian Mayor Annise Parker of Houston, Texas, directed the city’s Human Resources department to recognize the out-of-state same-sex marriages of city employees for benefits
purposes, to be effective January 1, 2014. Harris County Republican Chair Jared Woodfill found two taxpayers willing to be plaintiffs in an action challenging Parker’s directive, which was filed on December 17 in Harris County District Court. District Judge Lisa Millard issued an order blocking Parker’s directive from going into effect, pending a hearing scheduled for January 6.
Mayor Parker premised her directive on the recent conclusion by a federal district judge in Ohio that a state’s refusal to recognize a same-sex marriage performed out-of-state would violate the equal protection rights of the couple in question, assuming that a different-sex marriage would have been recognized, and that the state’s own policy against recognizing same-sex marriages was overcome by federal equal protection requirements. See Obergefell v. Kasich, 2013 WL 3814262 (S.D. Ohio July 22, 2013).
In his lawsuit, Pidgeon v. Parker, No. 2013-75301/Court 310 (Harris Co. Dist. Ct.), Woodfill raises the state’s DOMA and anti-gay marriage constitutional amendment, as well as a Houston initiative charter amendment that provided that only legal spouses and dependent children of city employees could receive employee benefits.
The court confronts questions about the plaintiffs’ standing to sue, in addition to the question whether federal supremacy compels the city to recognize same-sex marriages contracted elsewhere. Interestingly, the complaint never mentions Section 2 of DOMA, which purports to relieve states of any obligation to extend full-faith-and-credit to same-sex marriages contracted in other states. Perhaps there is an emerging recognition that Section 2 of DOMA is not the ground on which the same-sex marriage recognition issue will be fought.
According to a local news report, Millard’s brief order found that plaintiffs had sufficiently alleged “irreparable injury” should Parker’s directive go into effect to qualify for immediate injunctive relief. A spokesperson for Mayor Parker said that the city would immediately appeal Judge Millard’s order. The spokesperson, Janice Evans-Davis, also stated that the charter amendment, by its wording, allows benefits for “legal spouses” of city employees, and that Parker’s directive merely requires that the city comply with federal equal protection requirements by treating same-sex couples who married in jurisdictions that allow such marriages as “legal spouses.” Thus, the charter amendment would not be an impediment to the directive. Since the federal constitution takes priority over state laws, the Texas Marriage Amendment and Defense of Marriage Act would be overridden in this case.
Of course, this ultimately turns on whether the courts in Texas agree with the reasoning of the Obergefell case. An adverse determination by the Texas courts could be appealed to the U.S. Supreme Court, which would give that court another opportunity to take a bite out of the marriage equality issue without the need for a direct ruling on whether same-sex couples enjoy a federal constitutional right to marry.
Same-sex partners of municipal employees enjoyed benefits participation in Austin, Dallas, El Paso, Fort Worth and San Antonio, but had been blocked from benefits eligibility in Houston by the charter amendment. City Attorney David Feldman advised Parker that the charter amendment could be construed to allow benefits for legal same-sex spouses.