While most of us (including your faithful RD staffers) were prepping the grill for a long weekend celebrating this country’s problematic patriotism, the Texas Supreme Court on Friday issued an ominous anti-gay ruling that is positively stunning in its misreading of the legal basis for nationwide marriage equality.
The Washington Post‘s Dale Carpenter meticulously catalogued just “how wrong” the court was in its interpretation of the U.S. Supreme Court’s ruling in Obergefell v. Hodges, suggesting that landmark case dealt only with the issuance of marriage licenses to same-sex couples, and not all the attendant rights that accompany a legally recognized marriage. As such, the Texas Supreme Court reasoned, cities and counties may not be required to provide (and may even be barred from offering), in this case, employment benefits to legally married same-sex couples. Determining who is eligible for those benefits requires additional litigation, the court declared, sending the case, known as Pidgeon v. Turner, back to the lower court.
Such a narrow reading—co-signed by all six of the court’s Republican elected justices—requires a certain level of willful ignorance about the facts at issue in Obergefell, not to mention a stubborn refusal to acknowledge growing legal precedent indicating that the legal fight for marriage equality was never just about a piece of paper. Writing in The Post‘s Libertarian-leaning Volokh Conspiracy opinion section, Carpenter correctly identifies the central indignity of the Texas high court’s determination that Obergefell mandated only “licensing and recognition” of same-sex marriages, not equal access to the benefits readily granted to opposite-sex couples when they get married.
Noting that the Texas Supreme Court cherry-picked a passage from a Fifth Circuit case (Coker v. Whittington) that ultimately determined Obergefell “did not create ‘rights’ based on relationships that mock marriage,” Carpenter contends:
“The Texas Supreme Court’s characterization of same-sex marriages as involving simply ‘sexual relations’ demeans those marriages as much as the opinion in Bowers v. Hardwick (reversed in Lawrence v. Texas) demeaned gay couples’ right to sexual privacy by calling it only a right to ‘homosexual sodomy.’ When certain people see a married gay couple their thoughts drift to sodomy.
“But the problems with Pidgeon‘s view of Obergefell are even deeper than that. Without elaboration, the Texas Supreme Court announced its view that Obergefell held only that states must ‘license and recognize’ same-sex marriages. But, the court added, this does not necessarily entail a right to equal marital benefits—even though the denial of a variety of marital benefits, not just the right to obtain a license, was at stake in Obergefell. This license-and-recognize reading was essentially the view urged by the Petitioners in Pidgeon (a pastor and a CPA who oppose same-sex marriage), along with Texas Governor Greg Abbott, AG Ken Paxton, Lieutenant Governor Dan Patrick, and dozens of state lawmakers and “Conservative Leaders.”
Across the aisle, Mark Joseph Stern at Slate laid bare the willful ignorance the Texas high court must have engaged in to arrive at the conclusion it did. Reading Obergefell so narrowly, throwing its hands up at its obligation to resolve conflicts of law in accordance with existing constitutional understandings, is a thinly veiled attempt to directly undermine that rule of law, Stern implies. He writes:
“This maneuver is an oblique way for Texas Supreme Court to defy Obergefell without acknowledging what it’s doing. Obergefell declared that the Constitution grants same-sex couples “the constellation” of “rights, benefits, and responsibilities” that “the states have linked to marriage.” Its holding was not limited to marriage licensing. The Arkansas Supreme Court learned this lesson when it attempted to keep same-sex parents off their children’s birth certificates. On [June 28], the U.S. Supreme Court reversed that ruling in Pavan v. Smith, affirming that the Constitution prevents such ‘disparate treatment.'”
What is even more incredulous, Stern accurately notes, is the Texas court’s inclusion of a U.S. Supreme Court order agreeing to consider a “religious refusal” case from an anti-gay baker in Colorado (Masterpiece Cake Shop v. Colorado Civil Rights Commission), followed by its highly selective reading of an actual ruling handed down the same day out of Arkansas that directly addressed the issues raised by Pidgeon. (The Arkansas case, which I wrote about here, is Pavan v. Smith.)
The Texas Supreme Court acknowledged Pavan but noted that the justices also agreed to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, a constitutional challenge to LGBTQ nondiscrimination laws. This decision “to hear and consider Masterpiece Cakeshop,” the Texas Supreme Court insisted, “illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.”
That argument is bizarre. Masterpiece Cakeshop asks whether businesses have a First Amendment right to turn away same-sex couples. Obergefell and Pavan hold that the government may not treat same-sex couples differently from opposite-sex couples. No matter how the court rules in Masterpiece Cakeshop, its decision cannot abridge the rights and benefits that a state must afford to same-sex couples.
It remains to be seen how effective this particular case—with its backing from powerful Republican leaders in Texas—will be in gutting the freedom to marry in the Lone Star State. But it does signal the latest, and clearest to-date, sign that marriage equality is far from legally settled. As long as there are right-wing politicians and civilians willing to claim that two women or men marrying violates their God-given right to hate homos, we’ll continue to see “religious freedom” and “LGBT equality” framed as innately oppositional principles.