Conservatives eager to bring the marriage equality issue back to the U.S. Supreme Court after President Donald J. Trump has had an opportunity to appoint some conservative justices may have found a vehicle to get the issue there in an employee benefits dispute from Houston. On January 20, the Texas Supreme Court announced that it had “withdrawn” its September 2, 2016, order rejecting a petition to review a ruling by the state’s intermediate court of appeals that had implied that the U.S. Supreme Court’s 2015 marriage equality ruling, Obergefell v. Hodges, 135 S. Ct. 2584, might require Houston to provide the same spousal health benefits to same-sex as different-sex spouses of City workers. Instead, announced the Court, it had reinstated the petition for review and scheduled oral argument for March 1, 2017. Parker v. Pidgeon, 477 S.W.3d 353 (Tex. 14th Dist. Ct. App., 2015), review denied, sub nom. Pidgeon v. Turner, 2016 WL 4938006 (Texas Supreme Ct., September 2, 2016), No. 16-0688, Order withdrawn, motion for rehearing granted, petition reinstated (Jan. 20, 2017).
The plaintiffs in the Houston benefits case, Houston taxpayers Jack Pidgeon and Larry Hicks, had filed a motion for rehearing with active support from Governor Greg Abbott and Attorney General Ken Paxton, both ardent marriage equality opponents eager to chip away at the marriage equality ruling or even to get it reversed. The Texas Supreme Court’s order denying review had been issued over a fervent dissenting opinion by Justice John Devine, who argued for a limited reading of Obergefell, and the Republican leaders’ amicus brief in support of review channeled Devine’s arguments.
Trump’s nomination of a conservative to fill the seat left vacant when Justice Antonin Scalia died last February would not change the Supreme Court line-up on marriage equality. Obergefell was decided by a 5-4 vote, with Scalia dissenting. However, it is possible – even likely, if rumors of a possible retirement by Justice Anthony Kennedy at the end of the Court’s 2017-18 Term are accurate – that Trump will get an opportunity to replace the author of the Obergefell decision with a more conservative justice in time for the Court’s 2018-19 Term. Regardless how the Texas Supreme Court rules on this appeal, its interpretation of the scope of Obergefell could set up a question of federal constitutional law that could be appealed to the U.S. Supreme Court, and once the issue gets to the Court, it is possible that the Obergefell dissenters, strengthened in number by new conservative appointees, could take the opportunity to narrow or even overrule the marriage equality decision.
The Houston dispute dates back to 2001, when Houston voters reacted to a City Council move to adopt same-sex partner benefits by approving a City Charter amendment that rejected city employee health benefits for “persons other than employees, their legal spouses and dependent children.” In 2001 same-sex couples could not legally marry anywhere in the world, so this effectively denied benefits to any and all same-sex partners of City employees. Texas was also one of many states that put firm bans on same-sex marriage into its constitution and family law statute.
After the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act in June 2013, Houston Mayor Annise Parker, an openly-lesbian longtime LGBT rights advocate, announced the extension of health benefits to same-sex spouses of City employees. Although same-sex couples could not then marry in Texas, they could go to any of a number of other states to get married, including California and New York and, most conveniently as a matter of geography, Iowa. Parker and her City Attorney concluded that under the Supreme Court’s reasoning in the DOMA case, United States v. Windsor, 133 S. Ct. 2675, Houston’s city government was obligated to recognize lawfully contracted same-sex marriages of city employees and provide them the same benefits that were accorded to other city employees. Federal constitutional requirements would override the City Charter ban as well as state law.
Taxpayers Pidgeon and Hicks filed suit in state court, contending that Parker’s action violated the Texas Constitution and statutes, as well as the city charter amendment. They persuaded the trial judge to issue a temporary injunction against the benefits extension while the case was pending. The City appealed that ruling to the 14th District Court of Appeals, which sat on the appeal as new marriage equality litigation, sparked by the Windsor ruling, went forward in dozens of states including Texas. A Texas federal district judge ruled in 2014 in the De Leon case that the state’s ban on same-sex marriage was unconstitutional. The U.S. 5th Circuit Court of Appeals heard the state’s appeal of that ruling in January 2015. After the U.S. Supreme Court ruled for marriage equality in June 2015, the 5th Circuit issued its decision upholding the Texas district court, 791 F.3d 619, which in turn ordered Texas to allow and recognize same-sex marriages. This prompted the 14th District Court of Appeals to issue its decision on July 28, 2015.
The Court of Appeals ruling in Parker v. Pidgeon, 477 S.W.3d 353, said, “Because of the substantial change in the law regarding same-sex marriage since the temporary injunction was signed, we reverse the trial court’s temporary injunction and remand for proceedings consistent with Obergefell and De Leon.” The court did not rule on the merits, merely sending the case back to the trial court to issue a decision “consistent with” the federal marriage equality rulings. What those rulings may require in terms of city employee benefits is a matter of some dispute.
Pidgeon and Hicks petitioned the Texas Supreme Court to review this court of appeals decision, but the court denied that petition on September 2, 2016, with Justice Devine dissenting. Devine argued that the court should have taken up the case because, in his view, the majority of the court “assumed that because the United States Supreme Court declared couples of the same sex have a fundamental right to marry, the Equal Protection Clause of the Fourteenth Amendment requires cities to offer the same benefits to same-sex spouses of employees as to opposite-sex spouses. I disagree.” He continued: “Marriage is a fundamental right. Spousal benefits are not. Thus, the two issues are distinct, with sharply contrasting standards for review. Because the court of appeals’ decision blurs these distinctions and threatens constitutional standards long etched in our nation’s jurisprudence, I would grant review.”
Justice Devine was mistaken as to the court of appeals decision. That court did not hold in its July 28 ruling that same-sex spouses of Houston employees are entitled to health benefits from the city. Rather, it ruled that because of “substantial change in the law” since the temporary injunction was issued, the injunction should be reversed and the case sent back to the trial court for “proceedings consistent with Obergefell and De Leon.” If the trial court, on reconsideration, concluded that Obergefell and De Leon did not require the City to extend benefits to same-sex spouses of its employees, as Justice Devine argued in his dissent, the trial court could still rule in favor of Pidgeon and Hicks. All the court of appeals directed the trial judge to do was to rethink the case in light of the new federal rulings.
Devine’s argument rests on a very narrow reading of Obergefell. He interprets the Supreme Court’s decision to be sharply focused on the right of same-sex couples to marry, resting on the Court’s conclusion that the right to marry is a “fundamental right.” Thus, a state would have to have a “compelling interest” to deny the right, a test that the Supreme Court found was not met. However, pointed out Devine, the Supreme Court never explicitly said that the federal constitution requires state and local governments to treat all marriages the same, regardless whether they are same-sex or different-sex marriages. And, he argued, public employees do not have a fundamental constitutional right to receive health insurance benefits from their employer. Thus, he contended, the state could decide who gets benefits based on its own policy considerations, which the courts should uphold if they satisfy the relatively undemanding “rationality” test that is used when a fundamental right is not at stake. As to that, he argued that the state’s interest in procreation by married different-sex couples could justify extending benefits to them but not to same-sex couples.
A contrary argument would note that Justice Kennedy’s opinion in Obergefell specifically listed health insurance as one of the many benefits associated with marriage that contributed towards the conclusion that the right to marry was a fundamental right because of its importance to the welfare of a couple and their children. Similarly, Justice Kennedy did not consider the “procreation” argument persuasive to justify denying the right to marry to same-sex couples. On the other hand, the Supreme Court did not say anywhere in its opinion that states are constitutionally required to treat same-sex and different-sex couples exactly the same in every respect, ignoring any factual distinctions between them. Justice Devine’s argument seems strained, but not totally implausible, especially in the hands of a conservatively-inclined court.
Timing is everything in terms of getting an issue before the Supreme Court, especially if the aim of Texas conservatives and their anti-LGBT allies around the country is to get the issue there after Trump has had two appointments. Once the Texas Supreme Court hears oral argument on March 1, it could take as long as it likes to issue a ruling on the appeal, and it could be strategic about holding up a ruling until it looks likely that any Supreme Court appeal would be considered after the 2017-18 Term of the Court has concluded in June 2018. After the Texas Supreme Court rules, the losing party could take up to 90 days to file a petition in the Supreme Court. If the petition arrives at the Supreme Court after the end of its term, that Court won’t decide whether to grant review until the beginning of its new term in the fall of 2018, and if the petition is granted, argument would not take place for several months, giving the parties time to brief the merits of the case. If the Texas Supreme Court decides to affirm the court of appeals, it is highly likely that Pidgeon and Hicks, abetted by Abbott and Paxton, will seek Supreme Court review. If the Texas Supreme Court reverses, the City of Houston will have to decide whether to seek Supreme Court review, or whether to adopt a wait-and-see attitude while the trial court proceeds to a final ruling on the merits of the case. And the trial court could well decide, upon sober reflection, that Obergefell compels a ruling against Pidgeon and Hicks, which would put them back in the driver’s seat as to the decision to appeal to the Supreme Court.
If a second Trump appointee was confirmed while all of this was playing out, the case would be heard by a bench with a majority of conservative justices appointed by Republican presidents, one by George H.W. Bush (Clarence Thomas), two by George W. Bush (Chief Justice John Roberts and Samuel Alito), and two by Donald Trump. Trump’s appointees would be joining three Republican colleagues who filed or signed dissents in the Windsor and Obergefell cases. Regardless of how the Petitioner frames the questions posed to the Court, the justices are free to rewrite the question or questions on which they grant review. If a majority of the newly-constituted Court is eager to revisit Obergefell, they could grant review on the question whether Obergefell was correctly decided. Based on past history, they could reach that issue if a majority wants to do so without signaling its salience in the Order granting review.
Much of this is conjecture, of course. Justice Devine was a lone voice dissenting from the September 2 order to deny review in this case. But that order was issued at a time when national pollsters were near unanimous in predicting that Hillary Clinton would be elected and, consequently, would be filling the Scalia vacancy and any others that occurred over the next four years. The political calculus changed dramatically on November 8 when Trump was elected. Even though he has stated that he accepts marriage equality as a “settled issue,” his announced intention to appoint Justices in the image of Scalia and to seek reversal of Roe v. Wade, the Court’s seminal abortion decision from 1973, suggests that he will appoint justices who have a propensity to agree with the Obergefell dissenters that the marriage equality ruling was illegitimate. (Chief Justice Roberts wrote in his dissent that it had “nothing to do with the Constitution.”) Although the Court has frequently resisted efforts to get it to reverse highly consequential constitutional decisions, it has occasionally done so, most notably in the LGBT context in its 2003 ruling in Lawrence v. Texas, striking down a state sodomy law and overruling its 1986 decision in Bowers v. Hardwick.
After the election, many LGBT rights organizations issued statements to reassure people that marriage equality would not immediately disappear after Trump took office. That remains true. A constitutional ruling by the Supreme Court can only be changed by the adoption of a constitutional amendment, which Democrats can easily block in Congress, or overruling by the Supreme Court, which requires that a new case come up to the Court at a time when a majority of the Court is receptive to the overruling argument, which seems to be at least two years off from now. But these statements, including those by this writer, conceded that in the long run it was possible that Trump’s Supreme Court appointments and new appeals headed to the Supreme Court might come together to endanger marriage equality. This new development in the Houston benefits case shows one way that could happen.