By John Wright
LGBT advocates were weighing their legal options after the Texas Supreme Court agreed January 20 to take up a lawsuit challenging same-sex benefits for City of Houston employees.
Under pressure from GOP state leaders, the state’s highest court reversed its previous decision to reject the case, Pidgeon v. Parker, which was first filed more than three years ago on behalf of Republican activists Jack Pidgeon and Larry Hicks.
A state district judge initially ruled in favor of Pidgeon and Hicks (who were represented by former Harris County GOP chair Jared Woodfill), but the state’s 14th Court of Appeals overturned the decision in the wake of the U.S. Supreme Court’s 2015 Obergefell v. Hodges marriage-equality ruling.
The nine-member Texas Supreme Court declined to hear the case in September, with only one member dissenting, prompting a campaign from right-wing groups to convince justices to reconsider. The campaign included briefs signed by Governor Greg Abbott, Lieutenant Governor Dan Patrick, Attorney General Ken Paxton, and dozens of GOP legislators.
Ken Upton, senior counsel for Lambda Legal in Dallas, said it was “troubling” that the Texas Supreme Court would bow to such political tactics.
“The idea that the state can create a loophole to ‘recognize’ a same-sex couple’s marriage, but deny it the same respect, dignity, and effect under state law that it gives a different-sex couple, is a pretty incredible reach to me,” Upton told OutSmart. “I guess we’ll see if the Court has five votes to go down this path, which seems to spit in the face of the U.S. Supreme Court. One wonders if we are striving to become the next Alabama.”
Upton said one option would be for Lambda Legal to reopen the federal case it filed to preserve the Houston workers’ benefits in response to Woodfill’s state lawsuit. The case was filed on behalf of city employees and their same-sex spouses in the wake of then-mayor Annise Parker’s decision to grant them benefits in 2013.
Lambda Legal obtained an injunction that kept the benefits in place while same-sex marriage cases were winding through the courts. But once the U.S. Supreme Court ruled in favor of marriage equality, the parties agreed that the federal decision was ‘controlling’ and the state case was dismissed as moot, Upton said.
“As you can imagine, we have been inundated with calls from concerned state and city employees,” Upton said. “This not only puts LGBT workers at risk, but makes Texas much less desirable in competing for employees.”
Noel Freeman, a city employee and former president of the Houston GLBT Political Caucus, was among the plaintiffs in Lambda Legal’s lawsuit.
“I’m a little surprised the Texas Supreme Court decided to keep the issue going, but not at all surprised Jared Woodfill continues to push it,” Freeman told OutSmart. “He hates LGBT people and has spent decades of his life trying to inflict as much harm on us as he possibly can.”
Woodfill didn’t respond to a request for comment. After an unsuccessful campaign for state GOP chair last year, Woodfill now serves as president of Steve Hotze’s Conservative Republicans of Texas, which is considered an anti-LGBT hate group by the Southern Poverty Law Center.
Freeman added that he believes the Texas Supreme Court’s decision to hear the case is a sign of things to come under president Donald Trump’s administration.
“I think opponents of LGBT equality feel empowered to attack us in every way they can to roll back the progress we’ve made,” he said.
The all-Republican Texas Supreme Court, whose members are elected, is set to hear oral arguments in Pidgeon v. Parker on March 1.
In addition to Woodfill, Pidgeon and Hicks are represented by Jonathan Saenz, president of the statewide anti-LGBT group Texas Values.
“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,” Saenz wrote in an email responding to the decision. “Just like with abortion, taxpayers should not be forced to fund same-sex benefits.”
In their motion for a rehearing, Saenz and Woodfill argued that Obergefell should be interpreted narrowly because it violates states’ rights under the 10th Amendment, has no basis in the Constitution, and threatens religious freedom.
“It is clear that the current Supreme Court will continue to use its power to advance the ideology of the sexual revolution until there is a change of membership,” Saenz and Woodfill wrote. “It is well known that the homosexual-rights movement is not content with the judicial imposition of same-sex marriage in all 50 states; it is also seeking to coerce people of faith who oppose homosexual behavior into participating in same-sex marriage ceremonies.”
Attorneys for the City of Houston responded by noting that state officials agreed to comply with Obergefell when they resolved Texas’ same-sex marriage case, De Leon v. Perry, as well as another lawsuit brought by Lambda Legal over benefits for state employees.
“The issue here is not whether employee benefits are a fundamental right. It is simply whether same-sex spouses must be allowed the same employee benefits as opposite-sex spouses,” wrote City attorney Ronald Lewis and his chief of litigation, Judith Ramsey.
“As discussed, the State of Texas has already changed its own policies on employee benefits to comply with Obergefell and De Leon, and the attorney general has taken legal positions consistent with those decisions,” they wrote. “The demand of the state senators and representatives that this Court intervene to prevent the state from spending ‘taxpayer money on benefits contrary to state law’ is empty rhetoric.”