Not ready to concede the fight over gay marriage, social conservatives and Republican leaders have drawn a line in the sand at the Texas Supreme Court.
With legal briefs and an email campaign targeting individual justices on the all-Republican court, opponents of gay marriage are hoping to revive a lawsuit that sought to abolish benefits the city of Houston provides to married same-sex couples.
More importantly, opponents believe, the Houston case provides a golden opportunity for a ruling that limits the impact of the 2015 U.S. Supreme Court ruling that legalized same-sex marriage.
There is, however, one big obstacle.
The Texas Supreme Court has already rejected the Houston case in an 8-1 ruling, letting stand a lower-court decision that upheld the benefits. Gay-marriage opponents have asked the state Supreme Court to reconsider, and, although such requests are rarely granted, Texas conservatives have supported the effort with a vigor rarely seen at this stage of the appeals process.
The motion itself urges the court to reject the “ideology of the sexual revolution” embraced by federal judges who found a constitutional right to gay marriage, overturned Texas abortion regulations and struck down a Mississippi law that would have allowed individuals and businesses to refuse service to same-sex couples based on religious objections to gay marriage.
A separate friend-of-the-court brief, signed by 70 Republican politicians, conservative leaders and Christian pastors, urged the court to stand up to “federal tyranny” and warned that failure to accept the appeal would deny voters “an opportunity to hear what their duly elected high court justices have to say on such an important issue.”
Spurred by conservative leaders, gay-marriage opponents have sent justices at least 41 emails asking them to strike down the Houston benefits. Many of the emails framed the case as a litmus test for Republican voters who support Christian values.
“When I voted for you, I thought that you would uphold the Republican platform to protect the family unit for my children. Obviously, that was a correctable mistake on my part,” reads one email.
“I have many sins — but this is a slap in God’s face! And YOU slapped HIM!!!” reads another.
Most recently, Texas Attorney General Ken Paxton said he also wants to get involved.
Noting that his office has consistently fought efforts to expand the definition of marriage to include same-sex couples, Paxton told the court earlier this week to expect a brief no later than Oct. 27 that suggests “an appropriate way forward.”
Lawyers for Houston, however, say gay-marriage opponents are beating a dead horse.
The city’s benefits policy, they told the court, is protected by the 2015 U.S. Supreme Court ruling in Obergefell v. Hodges, which said state laws are unconstitutional if they exclude same-sex couples from marriage “on the same terms and conditions as opposite-sex couples.”
“It requires that same-sex spouses be treated equally to opposite-sex spouses,” Houston’s lawyers argued. “Therefore, if the city offers employee benefits to spouses, it must offer them to all spouses, regardless of gender.”
Tellingly, they added, state agencies began offering employee benefits to same-sex couples shortly after the ruling — “the very act” gay-marriage opponents are seeking to stop in Houston.
A fundamental right?
In their motion asking the state Supreme Court to take another look at the case, gay-marriage opponents argue that they aren’t pressing Texas to defy the Obergefell ruling.
Instead, they are seeking a ruling directing Texas courts to interpret the marriage ruling as narrowly as possible to limit its impact on state policies.
“Obergefell specifically limited its holding to laws that exclude same-sex couples from civil marriage; it did not purport to invalidate laws that withhold taxpayer subsidies from same-sex couples, or laws that withhold employee benefits from same-sex spouses,” said the brief by lawyers with Texas Values, an Austin-based organization that promotes socially conservative policies.
The motion also urged the court to adopt the reasoning of Justice John Devine, who was the lone dissenter in the Sept. 2 decision that declined to hear the Houston case. The court majority didn’t issue an opinion explaining its decision.
“Marriage is a fundamental right. Spousal benefits are not,” Devine wrote, adding that the decision to uphold Houston’s benefits policy failed to acknowledge that government has a legitimate interest in forming policies that promote procreation within marriage.
“Surely the state may limit spousal employment benefits to spouses of the opposite sex. Only these spouses are capable of procreation within their marriage, and the state has an interest in encouraging such procreation,” Devine said.