Texas Attempts End Run Around Supreme Court Gay Marriage Ruling

We’re seeing either an attempt to resurrect gay marriage discrimination policies in Texas or its death throes. Hopefully it’s the latter, but it could also be a useful case to bring about a discussion of the extent and fiscal consequences of expansive government employee benefits! (Spoiler: That’s not going to happen.)

A couple of taxpayers, supported by the Texas Republican establishment, are suing to stop the City of Houston from extending spousal benefits to partners in same-sex marriages. This would seem to go against the Supreme Court’s decision in Obergefell v. Hodges, the 2015 ruling that mandated that the federal government and the states recognize same-sex marriages as they do heterosexual marriages.

Indeed, Texas courts initially rejected the case, but the governor, lieutenant governor, and attorney general submitted briefs arguing that this case is an opportunity to “examine the scope” of how broad the Obergefell ruling is. So the Texas Supreme Court will hear arguments in March.

At the heart of the case is a claim that gets really odd, really quickly: They are arguing that legally recognizing a same-sex couple doesn’t necessarily mean that they have to extend the same employee benefits as they do to heterosexual married couples: “No city employee — whether heterosexual or homosexual — has a ‘fundamental right’ to receive employee benefits for his or her spouse. It is perfectly constitutional for the government to offer benefits or subsidies to some married couples while withholding those benefits from others.”

While it’s true that no city employee has a “fundamental right” to spousal benefits, this line of argument is a bit of a straw man. The justification for denying benefits and subsidies matters—the government can’t just withhold them arbitrarily. Access to marriage benefits was part of the meat of what both the Obergefell and the previous Windsor ruling (which required the federal government to recognize gay marriages performed in states where it had been legalized) were about. From the majority opinion in Obergefell:

The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.

Whether or not politicians in Texas support or “approve” of same-sex marriage should not be relevant to a decision of whether spouses should have access to benefits. It would certainly be deemed discriminatory to withhold benefits on the basis of the spouse’s race or political affiliation or any number of other categories.

If taxpayers have an objection to the cost of extending benefits to spouses of government employees, then the discussion truly should revolve around reducing those benefits as a class. But that’s not what this is about (which is a shame, really). If the government is going to offer a legal benefit or a privilege to a spouse, it needs to have a legitimate reason for discriminating against a particular couple. Not liking gay marriage isn’t a legitimate reason.

Read through the case files here. While it seems likely that this lawsuit must be doomed, courts can be tough to predict.