Houston Wants SCOTUS to Protect Same-Sex Marriage Benefits

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By Patrick L. Gregory

The City of Houston’s request that the U.S. Supreme Court clarify its LGBT rights precedents may be enticing to the justices, but may also be premature, scholars told Bloomberg BNA ( Turner v. Pidgeon , U.S., petition for review filed 9/15/17 ).

Courts continue to wrestle with how to apply the high court’s landmark decision recognizing the right of same-sex couples to marry, in Obergefell v. Hodges, and its ruling that laws prohibiting same-sex parents from being named on their children’s birth certificates are unconstitutional, in Pavan v. Smith.

The Arizona Supreme Court Sept. 19 applied those precedents to hold that a mother’s wife was a presumptive parent under state law, in McLaughlin v. Jones , Ariz., No. CV-16-0266-PR, 9/19/17 .

Houston’s petition for certiorari asks the high court to review a Texas Supreme Court decision in a dispute about benefits for same-sex spouses of public employees. The decision is a threat to the rights of same-sex couples, the city says.

The U.S. Supreme Court hasn’t recognized a right for married, same-sex couples to receive the same publicly funded benefits as all married couples, the Texas Supreme Court said in Pidgeon v. Turner.

Houston disagrees, citing Obergefell and Pavan.

Former Texas Supreme Court Chief Justice Wallace B. Jefferson is representing the city in its challenge to his prior employer’s decision.

The “case may be especially tantalizing” for Justice Anthony M. Kennedy and other justices “who may wish to further underscore the scope and breadth” of Obergefell, though the chances of the court granting review in any case are “low to begin with,” Melissa Murray, a professor at the University of California at Berkeley law school, Berkeley, Calif., told Bloomberg BNA by email Sept. 19.

“It could also be very appealing” to the court’s conservative dissenters in Obergefell and Justice Neil M. Gorsuch, “who may wish to limit” that decision’s reach, Murray, who has written about marriage rights, said.

But “if one takes seriously the view that employment benefits, like the marital presumption, are part and parcel of the benefits that flow from marital recognition, then Pavan would seem dispositive, and the Court might not feel the need to weigh in,” she said.

Further, it’s “very unlikely” that the U.S. Supreme Court will grant review because there’s no final ruling in the state proceeding yet, Paul Bender, a professor who teaches constitutional law at Arizona State University law school, Phoenix, told Bloomberg BNA by email Sept. 19.

The petition for review is “a bit premature because the Texas Supreme Court never said that benefits would have to be denied,” Josh Blackman, a professor at South Texas College of Law Houston who specializes in constitutional law, told Bloomberg BNA Sept. 20.

The court merely sent the case back to the trial court for further consideration, which will likely rule for the city, Blackman said.

Due Process Question

Houston residents Jack Pidgeon and Larry Hicks obtained an injunction preventing the city from providing benefits to same-sex spouses of Houston employees, under Texas and Houston’s Defense of Marriage Acts.

The Texas Court of Appeals reversed the trial court’s injunction, and the Texas Supreme Court remanded the case to the trial court.

The remand would allow the parties to “address the meaning and ramifications of Obergefell,” which wasn’t announced “until after the parties had filed their briefs in the court of appeals,” the court said.

However, it was clear that Obergefell didn’t address and resolve the extent to which the U.S. Constitution “requires states or cities to provide tax-funded benefits to same-sex couples,” the court said.

Obergefell and Pavan held that a state must provide the same benefits attached to marriage to same-sex couples as it does to opposite-sex couples, the city argues.

“Just as denying same-sex couples a marriage license violates the Due Process Clause, a government violates due process by excluding married same-sex couples from this constellation of benefits,” the city says.

The Texas Supreme Court’s ruling “threatens to undermine same-sex married couples’ rights to equal recognition in Texas and beyond,” it says.

‘Misplaced Outrage’

“I think the outrage over this case” is “somewhat misplaced,” Blackman said.

U.S. Supreme Court “decisions don’t immediately change the law everywhere nationwide,” he said.

“It’s not enough to simply say that Obergefell said that states cannot deny marriage licenses and say that that immediately means that” employers must issue benefits to same-sex spouses, he said.

The Texas Supreme Court wasn’t “ignoring Obergefell” or “defying it, as some people wrote in the press,” he said.

It “was simply making a judgment that Obergefell didn’t reach that far,” he said.

Slim Chances?

It’s unlikely that the high court will grant review because the Texas Supreme Court’s decision “does not settle any important issues,” Bender said.

“It just remands the case to the lower courts to reconsider” those issues, he said.

The high court “usually waits to grant review until there is either a final decision below,” or the court below “makes a ruling on some issue of law that has nationwide importance.”

“The only possibility that I can see for the U.S. Supreme Court granting review would be if other states filed amicus briefs asking the Court to review the case,” he said.

Further, the court already has a case awaiting argument at the U.S. Supreme Court involving the reach of Obergefell, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, Murray said.

“That case raises the question of whether service providers, in this case a baker, may refuse to provide goods and services to same-sex weddings,” she said.

The high court “may find that Masterpiece Cakeshop provides a better platform for deciding the question at the core of Pidgeon—whether those who object to Obergefell and the legal recognition of same-sex marriage can chip away at the decision by refusing to extend particular benefits/goods and services to same-sex couples,” Murray said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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