Treat same-sex couples the same as others, Texas Supreme Court told

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-sex 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.”

A ruling by the state Supreme Court is expected before the end of June. The court initially declined to take up the case in September, letting stand a lower court decision that upheld benefits for same-sex couples.

This prompted an outpouring of letters from Texans opposing the court’s decision. Looking to narrow the scope of the landmark ruling, Texas GOP leaders — including Gov. Greg Abbott — urged the court to reconsider the case. In a rare move, the court then reversed course in January and agreed to reopen the case.

On Wednesday, Jonathan Mitchell — the former solicitor general for the state and the lawyer representing opponents of the Houston policy — argued that Obergefell did not resolve the question of spousal benefits and said clarification from the state Supreme Court would be helpful in this case and help guide all other state judges.

“I believe there are benefits associated with marriage that do qualify as fundamental rights ... some of these incidents of marriage are deeply rooted in tradition, such as for example the right to adopt children or perhaps even the right have one’s name listed on the death certificate of one’s spouse,” Mitchell said. “A plausible argument can be made that those types of incidents related to marriage are fundamental rights just as the right to enter into marriage is a fundamental right.”

But he said spousal employment benefits don’t fall under the same category.

The decision could ultimately come down to jurisdiction and standing — two issues on which the justices focused throughout oral arguments.

In bringing the case before the state Supreme Court, opponents of the benefits policy parsed the legal steps in the case and questioned whether a state appeals court erred in directing a lower court to rule in a manner consistent with a separate federal case that challenged the state’s ban on same-sex marriage and not with Obergefell. (Texas conceded that federal case in light of Obergefell.)

At one point, Justice Jeffrey Boyd questioned if the court would have jurisdiction if the appeals court had simply mentioned Obergefell. Asked by the justices if there were any other cases where the court “exercised” similar jurisdiction, Mitchell responded he was not able to find another case.

The justices also questioned how opponents could argue against the Houston policy while the state itself has extended benefits to same-sex spouses of its employees.

Mitchell responded that the state was bound by the federal case challenging the state’s ban on same-sex marriage because it was a named party in the case.

“Would you file a writ on that to the Supreme Court if you were a state official?” Justice Eva Guzman asked.

“I wish I were,” Mitchell responded.

While not mentioned explicitly during oral arguments, those behind the legal challenge to Houston’s policy have made clear that they see this case as a path to relitigate the U.S. Supreme Court’s decision to legalize same-sex marriage.

On Wednesday, Mitchell instead focused on asking to the court the provide other state courts with instructions that they are required to “comply with Obergefell but not expand on it.”

Meanwhile, Alexander urged the justices to consider “a century of jurisprudence” on cities’ autonomy when it comes to legislating and how that intersected with Obergefell’s guarantee of equal treatment for same-sex couples.

“What authority would there be for a state court to say to the city of Houston or any other city, 'You must stop paying benefits to opposite sex couples'?” Alexander questioned. “There’s no statute that would authorize that."

Read related coverage:

• Same-sex marriage has been legal for almost two years, but opponents are looking to fight a U.S. Supreme Court ruling through a lawsuit challenging Houston's benefits for same-sex couples.
• The Texas Supreme Court reversed course and agreed to take up a case involving benefits for married same-sex couples after Republican leaders urged the court to reconsider its earlier decision to let a lower court decision stand.