In rare reversal, Texas Supreme Court takes gay marriage case

4:52 p.m Friday, Jan. 20, 2017 Local
The Texas Supreme Court building in downtown Austin.

In a rare reversal, the all-Republican Texas Supreme Court accepted a gay marriage case Friday after pressure from state GOP leaders and grass-roots activists.

The state’s highest civil court had rejected the case in September with only one of nine justices dissenting, prompting a backlash from opponents of gay marriage who saw an opportunity to strip away same-sex spousal benefits offered to employees of state and local governments.

Three leading Republicans — Gov. Greg Abbott, Lt. Gov. Dan Patrick and Attorney General Ken Paxton — joined the effort, filing a brief that urged the high court to reconsider because the case offered an opportunity to limit the impact of the 2015 U.S. Supreme Court ruling that struck down the state’s ban on gay marriage.

On Friday, the state court reinstated the case, accepting a rarely granted motion to rehear without comment and scheduling oral arguments for March 1.

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“Today’s decision is an important step in defending our state’s marriage laws and protecting taxpayers’ right to not be forced by government to fund illegal same-sex benefits,” said Jonathan Saenz, president of Texas Values and one of the lawyers who asked the court to change its mind about rejecting the case.

It takes four justices to grant a motion to rehear.

Following common practice, the Texas Supreme Court didn’t list names or how many justices voted to accept the case, which was based on a lawsuit that sought to abolish benefits the city of Houston began offering to married same-sex couples before the U.S. Supreme Court ruling struck down state bans on gay marriage.

The Houston case presented a particular challenge for a Texas court that strives to appear above politics while its justices run for six-year terms as members of a particular political party.

Neel Lane, a lawyer for two same-sex couples who had challenged the Texas same-sex marriage ban, said the court’s reversal was telling.

“It is clear that, emboldened by Donald Trump’s victory, Texas Republicans are targeting the rights of gay and lesbian citizens. Sadly, the Texas Supreme Court has folded under their pressure,” Lane said. “If the Supreme Court is vulnerable to this kind of pressure, then gay and lesbian citizens should expect no aid or comfort from any corner of state government.”

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The motion to rehear that was granted Friday urged 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 had let individuals and businesses refuse service to same-sex couples based on religious objections.

A separate 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 religious and social conservative leaders, opponents of same-sex marriage also barraged justices with emails making it clear that some GOP voters saw the case as a litmus test for party loyalty and 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,” one email said.

Lawyers for Houston argued that the city’s benefits policy was protected by the U.S. Supreme Court’s marriage ruling, which required same-sex spouses be treated equally to opposite-sex spouses.

Tellingly, they added, state agencies moved quickly to offer employee benefits to same-sex couples, saying at the time that they did so to comply with the “clear mandate” of the marriage ruling.

Chuck Smith, head of Equality Texas, said the U.S. Supreme Court set a clear-cut standard: “If benefits are extended, they need to be extended to married couples fairly and equally.”

A Texas ruling deviating from that would invite another crackdown from the federal courts, Smith said. “I think this will ultimately be a waste of taxpayer dollars,” he said.

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