by Dale Carpenter
The Volokh Conspiracy / 2017-07-02 22:47
Skirting the import of Obergefell v. Hodges and ignoring the impact of a 6-3 decision on the equal rights of married gay couples issued a week ago, the Texas Supreme Court unanimously declared Friday that cities in the state may not have to provide equal benefits to the same-sex spouses of their employees. In fact, the Texas court’s decision in Pidgeon v. Turner held open the possibility that cities may be barred from granting such benefits under the state’s DOMA law and even left open the possibility that a city might be required to “claw back” some benefits already paid to same-sex couples. Were it a final decision on the merits rather than a decision on an interlocutory appeal, Pidgeon would be good candidate for the kind of slap-down summary reversal the Supreme Court dealt the Arkansas high court last Monday in Pavan v. Smith (striking down Arkansas’ “disparate treatment” of married gay couples in listing parents on birth certificates). The city of Houston, which is defending the workplace benefits, has not announced whether it will seek U.S. Supreme Court review at this point. Barring such review, the case will return to the state trial court for further factual development and more briefing.
Essentially, the state supreme court held that the landmark U.S. Supreme Court decision in Obergefell v. Hodges guaranteeing gay couples a fundamental right to marry requires states only to “license and recognize” same-sex marriages. Beyond that, the Texas court held, any claimed equal right to the associated benefits or rights of marriage must be litigated. The key passage comes at pp. 19-20…….