The Texas Supreme Court held Friday that my marriage is not equal to a straight person’s marriage.
The details are complex, but ultimately the decision in Pidgeon v. Houston holds that while the U.S. Supreme Court may have determined that I have a constitutional right to marry, it didn’t determine that I get the same benefits of marriage as anyone else.
My marriage, said the all-Republican Texas Supreme Court in its contemptuous 9-0 decision, is separate and unequal. And make no mistake: this is how same-sex marriage dies—not with one landmark Supreme Court case overturning Obergefell v. Hodges (though with Justice Gorsuch on the court, that is certainly a possibility) but with a thousand blows chipping away at what my marriage means.
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Just like abortion rights, more limited today than when Roe v. Wade was decided 43 years ago, thanks to a remarkably similar effort to chip, chip, chip away at the underlying right until it is virtually impossible for some people to exercise.
Pidgeon is a case that should have been open and shut. Jack Pidgeon, and his litigation partner, Larry Hicks, are angry Houston taxpayers. They’re angry because in 2013, Houston’s mayor ordered that all legally-married city employees should be treated equally, and their spouses should all receive the same employment benefits. In legal filings that resembled a loony Alex Jones rant, their right-wing activist lawyers howled that this action forced them, as taxpayers, to “subsidize homosexual relationships that they regard as immoral and sinful.”
Taxpayer cases like these are usually dismissed out of hand. They’re not new—pacifists have filed them for decades to object to paying for national defense, and they always lose. But you don’t get to opt out of taxes when you don’t like how they’re spent; that’s not how democracy works. Your remedy is at the voting booth.
But this is Texas, which is being dragged kicking and screaming into the 21st century, and Pidgeon won a temporary injunction barring the city of Houston from granting spousal benefits to same-sex-married employees. For four years now, appeals of that injunction have dragged on.
In the interim, of course, the Supreme Court decided Obergefell, which began by noting that “the Constitution promises liberty to all within its reach, a liberty that includes certain specific rights,” including the right to marry another person. As a result, a Texas appeals court lifted the injunction and sent the case back down for consideration in light of Obergefell and a federal case applying it to Texas and other states.
The Texas Supreme Court said that actually, Obergefell doesn’t determine Pidgeon’s case after all. It reinstated the injunction – no spousal benefits for now—and sent the case back down to the trial court, with instructions to consider Obergefell but not feel entirely bound by it.
Along the way, the opinion manages to disparage the U.S. Supreme Court, same-sex marriage, and just about everything else related to gay people. It devotes several pages to rehearsing the various “defenses” of “traditional marriage,” as if Obergefell didn’t render them obsolete—imagine a court after Brown praising the many wonderful defenses of segregated schools that preceded the case for decades.
None of this should have happened.
First, just a few days ago, the U.S. Supreme Court issued an opinion that should have disposed of Pidgeon entirely. In that case, Pavan v. Smith, the Court struck down an Arkansas policy that listed opposite-sex-married parents on birth certificates but not same-sex-married ones. The Court—with Justices Gorsuch and Thomas dissenting—repeated its instruction from Obergefell that same-sex couples are entitled to civil marriage “on the same terms and conditions as opposite-sex couples.” It then applied that test to the Arkansas policy, and struck it down summarily.
But despite the clear, unmistakable language of Pavan, the Texas Supreme Court waved it away as merely “one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell.”
That is ridiculous. Pavan stated clearly that marriage means marriage, all benefits included. Saying that it was only about birth certificates is like saying that Brown was only about Topeka.
Second, Pidgeon itself was dead in the water last January, when the Texas Supreme Court refused to even take up the case. That was clearly the right decision, but then Texas governor Greg Abbott and other Republican leaders deluged the court with letters demanding that the court hear the case and confirm that Obergefell does not “command” public employers regarding employee benefits. (The state of Texas already grants spousal benefits to married gay and lesbian employees, though presumably that policy would be reconsidered if Pidgeon prevails in the end.)
Well, the Republicans got what they wanted: Obergefell doesn’t command them. Which, incidentally, conservatives said about Brown too—forcing the Supreme Court to issue Brown II a few years later, saying, basically, that it does.
To be clear, Pidgeon is an interim decision, not a final one. It still seems likely that the trial court, taking Obergefell into account but not as a “command,” will find that Houston’s benefits policy is mandated by the constitution. Ironically, Pidgeon’s complaint about wasting taxpayer dollars will only serve to waste further taxpayer dollars, as his preposterous case is tried, appealed, and then probably appealed again. The Texas Supreme Court should have ended this charade, but it hasn’t decided it either.
Moreover, growing numbers of Texans are horrified at how the Christian Right continues to damage the state’s reputation. In recent skirmishes over “bathroom bills,” for example, hardcore Republican constituencies like the Chamber of Commerce have urged the state not to turn the clock backward. Houston and Dallas, after all, are world-class cities competing on an international stage, not the county fair.
And nearly two-thirds of Texans now support same-sex marriage – the real kind, the kind that’s equal. The kind we thought we’d won two years ago.
That right is now set to be litigated, again, in a Texas state trial court, thanks to a loathsome decision designed to chip away at the latest Supreme Court decision conservatives don’t like. It’s not the first time that tactic’s been tried—and it’s not the last we’ll hear of it.
