Was this trip really necessary?
Same-sex couples are entitled to the same treatment as opposite-sex couples, a lawyer for the city of Houston argued before the Texas Supreme Court on Wednesday in a case challenging the city’s benefits policy for married same-sex couples.
As part of Texas Republicans’ ongoing fight against same-sex marriage, justices of the state’s highest civil court heard arguments in a case centered on whether Houston and other governmental entities are required by the U.S. Supreme Court’s landmark 2015 ruling in the case of Obergefell v. Hodges to extend taxpayer-subsidized benefits to same-spouses of government employees.
In Obergefell, the U.S. Supreme Court ruled that bans on marriages between couples of the same sex are unconstitutional and that states must recognize same-sex marriage as legal. Following that ruling, public employers in the state quickly extended benefits for same-sex spouses of public employees.
Arguing that interpretation is too broad, opponents of same-sex marriage have taken up a challenge against Houston’s policy, hoping the Texas court will issue an opinion that narrows the scope of the ruling because they believe marriage benefits are not a fundamental right.
But Douglas Alexander, the lawyer that defended Houston’s benefits policy, told the court on Wednesday that arguments against benefits to same-sex couples are moot under Obergefell’s guarantee that all marriages be equally regarded.
“What we’re saying is that if you extend spousal benefits to opposite sex couples then under Obergefell you also have to extend it to same sex,” Alexander told the court. “Not because there’s a fundamental right to employment benefits or spousal benefits but because there’s a fundamental right that both of those marriages be treated equally.”
See here for the background. I’m not an attorney, but Martin Siegel is. I’m going to hand the microphone to him for a minute:
The Republican officials’ argument depends on minimizing Justice Anthony Kennedy’s landmark opinion in Obergefell, but that opinion rules out their position. The opinion cites the many privileges afforded married couples – favorable tax treatment, property and inheritance rights, hospital access, health insurance, and so on – and expressly condemns the “material burden” that occurs when same-sex couples “are denied the constellation of benefits that the States have linked to marriage.” In fact, one of the specific state laws struck down by the decision concerned one of these benefits: a Michigan law that prevented plaintiffs April DeBoer and Jayne Rowse from adopting and raising special-needs children as married parents in the same family, rather than as separate individuals with no legal relationship.
As any lawyer knows, the opinions of the Supreme Court and the language the justices use in them matter greatly. Day in and day out, lower courts and lawyers apply both to new disputes that, while different factually, are nonetheless covered by the text and clear meaning of earlier opinions. The claim that Obergefell doesn’t resolve whether marriage-related benefits must be provided equally would puzzle any second-year law student.
A second argument advanced specifically by Republican state senators and representatives is that, because the Constitution doesn’t require local governments to give employment benefits to anyone, straight or gay, Texas can give them to one but not the other. Otherwise, Texas would be “subsidizing” gay marriage.
This willfully misses the point. It’s not that gay employees have a constitutional right to employment benefits or subsidies; it’s that they have a constitutional right to equal treatment. Public education is analogous. The U.S. Constitution doesn’t require states to provide public education, but if a state chooses to do so, it can’t segregate students by race. In Obergefell, the Court specifically applied the Fourteenth Amendment’s equal protection clause to strike down laws outlawing gay marriage because, under those laws, “same-sex couples (were) denied all the benefits afforded to opposite-sex couples.”
Education provides a useful comparison, too, because the Republican officials’ miserly approach to Obergefell recalls southern resistance to Brown v. Board of Education in the 1950s and ’60s. Through creative evasions and court battles, officials fought for years to preserve Jim Crow despite the Supreme Court’s mandate to integrate with “all deliberate speed.” In some places, they closed schools and other public accommodations rather than open them to everyone – just as the Republican legislators now justify denying employment benefits to gay spouses by suggesting they could constitutionally deny them to everyone.
Mark Joseph Stern, who is apparently on a tour of Texas this week, thinks the Supreme Court will ultimately dismiss this on procedural grounds. Whatever happens here, the plaintiffs in this case and their Republican enablers are on the losing side of the argument. There is no justification for what they are trying to do. The Supreme Court should have stood by their original decision to not hear this case, but failing that the least they can do is follow the law and give these plaintiffs the stinging defeat they so richly deserve. Texas Monthly has more.