by Jacob Monty
Monty & Ramirez, LLP
The Texas Supreme Court ruled this week that the City of Houston’s extension of its employee benefits to married same-sex couples goes further than is required by the 2015 U.S. Supreme Court’s landmark decision in Obergefell v. Hodges, which declared same-sex marriage equal in all 50 states. The plaintiffs in Friday’s decision argued that Obergefell didn’t impose on taxpayers the obligation to “subsidize” same-sex marriage. The city argued that the Supreme Court ruling requires it to treat employees in same-sex marriage equally.
In what same-sex marriage opponents are calling a victory, the Texas Supreme Court sent the case back to the lower court for arguments to be made in light of Obergefell, which was announced only after the parties had briefed the case in the lower court. The court stated:
[Plaintiff] Pidgeon contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case. And the Mayor has not yet had the opportunity to oppose it. Both are entitled to a full and fair opportunity to litigate their positions on remand.
The court also stated that the Texas Defense of Marriage Act, which prohibits using taxpayer dollars to provide benefits to married same-sex couples, wasn’t per se invalidated by the Obergefell decision.
Between rock and a hard place
For Texas employers, there is more waiting to do. If the lower court rules against the city, employers deciding whether to provide benefits to married same-sex couples may find themselves between the rock of a Texas court opinion and the hard place of the Equal Employment Opportunities Commission (EEOC), which has found discrimination based on gender identity or sexual orientation to violate federal law. Lower courts will no doubt struggle with these issues. In the end, on its final day of this year’s term, the Texas Supreme Court raised more questions than it provided answers and may have only punted this question to be heard again another day.
Jacob M. Monty is the managing partner of Monty & Ramirez, LLP and a coeditor of Texas Employment Law Letter. He can be reached at jmonty@montyramirezlaw.com.