Seyfarth Synopsis: The Texas Supreme Court held that the U.S. Supreme Court's landmark marriage equality decision, Obergefell v. Hodges, did not dispositively address how far government employers must go in providing benefits to same-sex married couples.
In a provocative opinion, in Pidgeon v. Turner, No. 15-0688, the Texas Supreme Court held that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not necessarily require state governments to extend marital benefits to same-sex married couples.
Procedural Background
In 2013, the city of Houston began extending benefits to same-sex spouses of city employees who were lawfully married. Shortly thereafter, Pidgeon was filed. It alleged that the city's actions violated Texas and Houston law. The law was enjoined by a state court. In July 2015, the Texas court of appeals reversed the injunction, holding that Obergefell represented a "substantial change in the law regarding same-sex marriage since the temporary injunction was signed," and that Obergefell forbade states from refusing to recognize lawful same-sex marriages. The appeals court also remanded to the trial court to issue opinions "consistent with" Obergefell . Plaintiffs then appealed to the Texas Supreme Court.
The Court's Opinion
The Texas Supreme Court reversed. The Court wrote "The [U.S.] Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons." Slip op. at 19 (emphasis added). The Texas Supreme Court remanded the case, so the trial court could decide if the Constitution or Obergefell "requires citizens to support same-sex marriages with their tax dollars." Id. at 20.
The decision rested on the proposition that Obergefell is "not the end" of the inquiry as to the "reach and ramifications" of the constitutional status of same-sex marriage. Id. at 23. Notably, the Texas Supreme Court acknowledged that the U.S. Supreme Court had, in the same week, decided Pavan v. Smith, No. 16-992, which rejected the state of Arkansas' efforts to limit recognition of same-sex parents on birth certificates. In Pavan, in a per curiam opinion, the Court held that same-sex couples are entitled to the same "constellation of benefits that the Stat[e] ha[s] linked to marriage." 2017 WL 2722472, at *2 (citations omitted).
Despite the apparent inconsistency with Pavan, the Texas Supreme Court emphasized the purported uncertainty over the reach of same-sex marital benefits by noting that the U.S. Supreme Court has also granted certiorari in Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, No. 16-111, a case involving a baker who was sued after he refused to make a wedding cake for a same-sex wedding.
Next Steps
The trial court may now proceed to the merits of the case, and a ruling that is inconsistent with Obergefell and Pavan is a distinct possibility. Should the case ultimately proceed to the U.S. Supreme Court, in light of Pavan, and assuming the current membership of the Court remains the same, it seems unlikely that a narrow reading of Obergefell, at least as to governmental actors, would be upheld. Unlike Masterpiece Cakeshop, Ltd., Pidgeon does not raise any questions of freedom of speech or religious liberty. Rather, as with Pavan and Obergefell, it addresses whether state actors can treat same-sex marriages differently than opposite sex marriage.
While the decision in Pidgeon may ultimately be vacated, that this decision was issued 2-years after a ruling by the Supreme Court legalizing same-sex marriage, underscores that opponents of marriage equality continue to use courts as a vehicle to limit or reverse marriage equality.
As Pidgeon and other challenges to marriage equality make their way through the courts, employers and benefit plans considering modifying their benefit offerings to exclude same-sex spouses should tread very carefully, especially given the EEOC's position that differential benefit offerings to same-sex spouses violates Title VII of the Civil Rights Act.
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