With trial set for Oct. 2 in Harris County, city asks high court to settle issue, as Lambda Legal pursues separate lawsuit.
By Josh Inocéncio
“Today I asked the U.S. Supreme Court to review the Texas ruling against marriage rights in Pidgeon v Turner,” Houston Mayor Sylvester Turner wrote on Twitter on September 15.
And with that, a four-year saga that began under Turner’s predecessor, Mayor Annise Parker, took its latest turn.
Turner, along with the city, is asking the high court to review the Texas Supreme Court’s decision from June saying same-sex married couples aren’t necessarily entitled to equal benefits.
In a news release announcing the city’s petition for review, Houston officials wrote that in its 2015 decision in Obergefell v. Hodges, the U.S. Supreme Court “recognized a nationwide right to civil marriage for same-sex couples, and held that benefits a state attaches to marriage must be provided equally to all married couples.”
The plaintiffs, Harris County taxpayers Jack Pidgeon and Larry Hicks, argue that because Texas law prohibits the extension of spousal benefits to same-sex couples, the mayor is illegally using public monies to fund them. Their core argument is that Obergefell provided merely the title of marriage to same-sex couples, and not necessarily benefits.
However, the aims of former Harris County GOP chair Jared Woodfill, the attorney representing the plaintiffs, go beyond eliminating same-sex benefits.
“This particular opinion will go to the U.S. Supreme Court and is a potential vehicle for overturning Obergefell given the changing composition of the court,” Woodfill told the Texas Tribune in February. “Ultimately, I would like to see Obergefell overturned.”
Interestingly, Wallace B. Jefferson, the former Republican chief justice of the Texas Supreme Court, is representing the city in the case before the U.S. Supreme Court— challenging the decision of his former colleagues.
“Once a state extends benefits to any married couple, it must treat same-sex couples with ‘equal dignity in the eyes of the law,’” Jefferson wrote in the city’s petition to the U.S. Supreme Court, quoting Justice Anthony Kennedy, author of the majority opinion in Obergefell.
Widely respected in both political parties, Jefferson was expected to be on Democrat Hillary Clinton’s short list of Supreme Court nominees if she had become president. He is now a partner at a private firm in Austin.
Kenneth Upton, senior counsel for the LGBTQ civil rights group Lambda Legal, said it could take months for the U.S. Supreme Court to decide whether to hear Pidgeon v. Turner.
“Keep in mind, out of the 7,000 to 8,000 petitions filed in the Supreme Court each year, the Court only accepts about 75-80. So the chances are pretty slim,” Upton said.
In the meantime, Pidgeon v. Turner could proceed in Harris County’s 310th District Family Court, where it was set for trial beginning October 2. The presiding judge is Republican Lisa Millard, who issued an injunction blocking same-sex benefits in the plaintiffs’ original lawsuit, Pidgeon v. Parker, in 2013. The lawsuit was filed after Mayor Parker’s extended benefits to the same-sex spouses of city employees.
In response to Millard’s injunction, Lambda Legal filed a federal lawsuit, Freeman v. Parker, seeking to preserve the benefits. In the wake of the Texas Supreme Court’s decision, which sent Pidgeon v. Turner back to Millard’s court, Lambda Legal effectively re-filed Freeman v. Parker as Freeman v. Turner, on behalf of three city employees and their same-sex spouses, in August.
In addition to preserving the benefits, Freeman v. Turner seeks to ensure that recipients of coverage don’t become liable for repayment of past premiums.
“The Freeman case is a separate lawsuit and is based strictly on federal law, not the laws the taxpayers [Pidgeon and Hicks] are attempting to enforce,” Upton said. “Obviously, if the U.S. Supreme Court decides to review the Pidgeon case, that could effectively decide the Freeman case as well, but we need not wait until that happens.”
Upton said he isn’t surprised that the issue has dragged out over four years, even after Obergefell. He noted that Texas is among the minority of states where Supreme Court justices are chosen in partisan elections.
After a state appeals court ruled in favor of the city, the Texas Supreme Court initially denied a rehearing of Pidgeon v. Turner. But then Governor Greg Abbott, Lieutenant Governor Dan Patrick, and Attorney General Ken Paxton joined a right-wing lobbying campaign urging the court to reverse its decision.
“We are seeing efforts in a number of conservative states that have adopted a strategy to whittle away at Obergefell in little bits—one benefit, one protection, at a time,” Upton said.
A similar effort occurred in Arkansas after the state Department of Health refused to list both names of a lesbian couple on their daughter’s birth certificate. The Arkansas Supreme Court ruled in favor of the health department, but, earlier this year, the U.S. Supreme Court overturned the decision, saying states must treat same-sex parents the same as opposite-sex ones.
“The goal in the short term is to make sure that same-sex couples get nothing more than ‘skim milk marriage,’ as Justice [Ruth Bader] Ginsburg called it,” Upton said.