Two years after the U.S. Supreme Court issued its landmark ruling legalizing same-sex marriage across the country, Texas couples are still fighting for marriage equality in court.
On Thursday, three married couples from Houston filed a lawsuit in federal court aimed at forcing the city to preserve health coverage and other benefits for same-sex spouses of city employees. That’s because, despite the Supreme Court’s 2015 decision in Obergefell v. Hodges, which affirmed same-sex marriage nationwide, the Texas Supreme Court this summer opted for something more like marriage equality-lite, ruling that same-sex spouses of government employees in Texas aren’t guaranteed the actual benefits of marriage such as dental, health or life insurance.
Kenneth Upton is a Dallas lawyer and senior counsel with the LGBT rights group Lambda Legal, which is representing the married couples that filed Thursday’s lawsuit. He says it’s become clear Texas state courts have no intention of upholding marriage equality.
“I don’t know a judge in the Southern District of Texas that’s going to thumb their nose at both the Fifth Circuit and the Supreme Court,” he told the Observer on Thursday. “We need to be in federal court, because that’s who’s going to follow the law.”
Jonathan Saenz and Jared Woodfill, the anti-LGBT architects of the religious-right campaign that repealed Houston’s non-discrimination ordinance in 2015, have for years been trying to overturn same-sex spousal benefits for Houston city employees. At first, a state judge ruled in their favor, but when Obergefell came down a state appeals court overturned that ruling.
But Saenz and Woodfill wouldn’t let a precedent-setting Supreme Court decision deter them, and instead pushed their case to the Texas Supreme Court, arguing that even though Obergefell legalized same-sex marriages, it didn’t explicitly mention “publicly funded benefits.” The Texas Supreme Court initially rejected the case, but then Governor Greg Abbott, Lieutenant Governor Dan Patrick and Texas Attorney General Ken Paxton stepped in, urging the nine judges on the all-GOP court to reconsider.
That gambit seemed to work. In late June, Texas’ highest court issued a unanimous, brain-twisting take on marriage equality. Per Justice Jeffrey Boyd, who wrote the opinion:
“We agree with the Mayor [of Houston] that any effort to resolve whether and the extent to which the Constitution requires states or cities to provide tax-funded benefits to same-sex couples without considering Obergefell would simply be erroneous. On the other hand, we agree… that the Supreme Court did not address and resolve that specific issue in Obergefell.”
The Texas Supreme Court kicked the case back to the state judge who ruled against same-sex spousal benefits for Houston employees in the first place. Last month, Woodfill filed a motion asking for that judge not only to block Houston from providing those benefits, but also to “compel the mayor and the city to claw back taxpayer money” that he says was “unlawfully spent on spousal benefits for homosexual partners of city employees.” Upton says that means same-sex spouses of city employees could be forced to pay the city back for those benefits if a judge rules they were “unlawful.”
Upton says the Texas courts’ handling of marriage equality post-Obergefell has been “an almost Alice in Wonderland kind of scenario,” which is why Lambda Legal wants to move the issue to the federal courts. “What makes it so offensive is there’s no question what the law is.”
One of Upton’s clients is a Houston police officer. “She puts her life on the line for the city and the people who live there every day,” he said. Were she to die in the line of duty, Upton said, “her surviving spouse would be treated differently than that of a straight officer, and that’s just offensive.”