Implementing Obergefell: Who Decides the Scope of a Newly Minted Right?

The Supreme Court’s fractured decision in Obergefell v. Hodges (2015) required states to recognize same-sex marriage. Obergefell came less than 30 years after Bowers v. Hardwick,[1] in which the court refused to recognize a right to engage in homosexual sodomy. In changing its mind, the Court effectively amended the U.S. Constitution with its Delphic utterances.

Under that document’s Supremacy Clause,[2] all states must follow Obergefell. But what is the scope of that obligation? Are all legal distinctions involving same-sex couples now invalid? A case pending before the Texas Supreme Court frames that question.

Justice Kennedy’s opinion for the 5 to 4 majority in Obergefell held that

the right to marry is a fundamental right inherent in the liberty of the person, and under the Due   Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson [1972] must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. (Emphases added.)

Obergefell struck down laws in four states—in Michigan, Kentucky, Ohio, and Tennessee—and in the process created a new constitutional right for same-sex couples: the right to marry. What does it mean to say the decision is “binding” on all states? What, precisely, is the holding of Obergefell, and who will decide peripheral issues involving family law, employee benefits, and the like?

Obviously a marriage license can no longer be denied to a couple solely because they are of the same sex, but must same-sex couples be treated identically to “traditional” married couples in all respects, regardless of cost and policy considerations? For example, does Obergefell compel governmental entities, in their capacity as employers, to provide spousal benefits to employees who have entered into a same-sex marriage that are identical to benefits provided to opposite-sex spouses?

A case presenting that issue is pending before Texas’ highest court.

Prior to Obergefell, two taxpayers challenged the grant of same-sex spousal benefits by the City of Houston, on the ground that the Texas Constitution and the state’s family code banned recognition of same-sex marriage. The trial court granted an injunction, barring the city from providing benefits to same-sex spouses of city employees (who were married out-of-state). The city appealed, and while the appeal was pending, the U.S. Supreme Court decided Obergefell. In light of that decision, Texas’ Fourteenth Court of Appeals reversed the injunction and remanded the case in a brief per curiam opinion dated July 28, 2015.[3] The appeals court provided virtually no analysis in support of its conclusion, simply citing Obergefell as dispositive.

The taxpayer plaintiffs sought discretionary review by the Texas Supreme Court, which was denied on September 2, 2016. (It takes four votes from the nine-member court to grant review, and the court’s internal voting in such matters is not reported.) Given that review is denied in most cases, the disposition of Parker v. Pidgeon would have been unremarkable, except for one thing: Breaking from tradition, Justice John Devine, a social conservative, issued an 11-page opinion dissenting from the denial of review.

In bright red Texas, same-sex marriage—banned by state law prior to Obergefell—is still a controversial topic, and all judges in Texas are subject to partisan elections. Justices on the all-Republican Texas Supreme Court are regularly challenged in the Republican primary, and GOP primary voters can be receptive to claims that an incumbent is insufficiently conservative. Last year, for example, a respected, longstanding member of the court, Justice Paul Green, fought off an inexperienced and unqualified primary challenger by less than 100,000 votes out of more than two million cast. The challenger relied in large part on Green’s having joined in a decision involving a same-sex divorce.

So Devine’s unusual dissent attracted attention, especially from conservative groups influential with the state’s grassroots, such as the Austin-based organization Texas Values (the leadership of which, coincidentally, had endorsed Green’s primary challenger). By denying review, critics suggested, the Texas Supreme Court was effectively “caving in” on same-sex spousal benefits, forcing the taxpayers to “subsidize” (link no longer available) same-sex marriage.

In addition, Devine’s dissent made a plausible argument: that Obergefell does not necessarily—at least it does not explicitly—dictate a right to equality in spousal benefits for same-sex couples. Obergefell recognized same-sex marriage as a “fundamental right” but did not expressly decree that all government benefits—usually reviewed under a more deferential standard—had to be identical.

Parsing the U.S. Supreme Court’s Equal Protection precedents, Devine observed that

If the government may extend benefits to some disabled persons but disqualify others based on who they marry, . . . or provide survivors’ benefits to some widows who remarry but deny them to others,  . . . then 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. . . . By misapplying Obergefell, the court of appeals overlooked this legitimate and important interest.

Buoyed by Devine’s dissent, and related news coverage, the plaintiffs in Parker v. Pidgeon sought a rehearing of their petition for review. Texas Values encouraged concerned citizens to send emails to the Texas Supreme Court—and many did. Most importantly, many Republican elected officials who had not previously taken an interest in the case, including Governor Greg Abbott, Lieutenant Governor Dan Patrick, and Attorney General Ken Paxton, filed “friend of the court” briefs in support of review. If it stuck with the denial of review, the court would now be at odds with social conservatives and also the state’s GOP leadership—hardly an auspicious position for any Republican judge as he or she contemplates seeking reelection.

It came as no surprise when, on January 20, the Texas Supreme Court reconsidered its position and granted review in the case. Oral argument is scheduled for the first day of March. I am not the only observer to read into these tea leaves the likelihood that the Texas Supreme Court will ultimately reverse the court of appeals and keep the injunction in effect.

Some liberal critics have accused the Texas Supreme Court of an unseemly political flip-flop. That charge is unfair. Assuming the vote was 8 to 1 against review is just that—an assumption. As noted, the internal votes are unreported, so no one knows if more justices than Devine favored review. Conceivably, the court reversed itself on the strength of a single justice changing his or her mind in Devine’s direction, perhaps as a result of reading the various amicus briefs.

In any event, Texas voters can reasonably expect the Texas Supreme Court to now affirm the trial court’s ruling on the ground that the “holding” of Obergefell was limited to conferring the right to marry on same-sex couples and did not address spousal benefits. (For that matter, benefits were but one of many details it left unaddressed.)

The Supreme Court might ultimately extend its Obergefell ruling to require full equality for same-sex spouses in all respects, including benefits. After all, the “separate is inherently unequal” rationale of Brown v. Board of Education (1954), which was ostensibly based on the unique nature of public education, was later extended, without explanation, to parks, golf courses, public transportation, and all other government facilities. But just because such an extension seems inevitable does not mean a state supreme court must acquiesce in it.

Conservative jurists who view Obergefell as unprincipled and erroneously decided have an obligation to comply with its holding, but not to assist in its expansion at the expense of ignoring or invalidating state laws. The Supreme Court created the right to same-sex marriage in Obergefell out of whole cloth. Many Americans properly regard the decision as a brazen display of judicial activism, and question its legitimacy as constitutional law. If the holding of Obergefell is going to be extended, it should be at the explicit directive of subsequent Supreme Court precedents.

The rule of law should not be surrendered without a fight.

[1] 478 U.S. 186 (1986).

[2] U.S. Constitution, Article VI.

[3] Parker v. Pidgeon, 477 S.W. 3d 353 (2015).

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on February 07, 2017 at 09:43:24 am

What separates marriage from every other form of Loving relationship is the ability and desire to exist in relationship as husband and wife. Every man is free to choose a woman to be his wife, and every woman is free to choose a man to be her husband, as long as that particular man and woman have the ability and desire to exist in relationship as husband and wife. The marital act is Life-affirming, and Life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife.

Marriage cannot be and not be existing in relationship as husband and wife, simultaneously. What the Supreme Court has done by removing the necessary requirement for a marriage contract, to be valid, which is the ability and desire to exist in relationahip as husband and wife, is invalidate the validity of a valid marriage contract, making it possible for any relationahip to be defined as marriage if one so desires, thus changing both the letter and the spirit of the law, while promoting the sin of adultery.

If you extend certain marital privileges to some persons who do not have the ability and desire to exist in relationship as husband and wife, you must extend those same marital privileges now to all persons who do not have the ability and desire to exist in relationship as husband and wife.

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Nancy D.
on February 07, 2017 at 09:53:42 am

"If the holding of Obergefell is going to be extended, it should be at the explicit directive of subsequent Supreme Court precedents."

And I suspect that it will do precisely that. The Black Robes will no doubt conclude that there is no *rational* basis for the absolutely *ir-rational* societal goal of society seeking to sustain itself through the growth of its own population.

On the contrary, the Black Robes have previously determined that it is both *rational* and moral to limit population growth via Roe.

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on February 07, 2017 at 10:02:19 am

Gabe, it is a self evident truth that limiting population growth by destroying the lives of certain sons and daughters residing in their mother's womb, is a violation of both our Constitution and The Letter of The Law.

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Nancy D.
on February 07, 2017 at 10:07:15 am

A friend points out that I was imprecise by suggesting that the Supremacy Clause makes Obergefell the law of the land. I stand corrected. Judicial review is not the same as judicial supremacy, which the Supreme Court asserted in Cooper v. Aaron. Thus, technically, my friend points out, "Nothing in the supremacy clause makes Obergefell the Supreme Law of the land. Indeed, the only parties bound by that decision are officials in Ohio, Kentucky, Michigan, and Tennessee. For example, after Obergefell, in De Leon, the 5th Circuit had to take additional steps to invalidate Texas's marriage law. Obergefell is not, even by practice, self-executing." All the more reason for Texas courts to enforce their own laws unless and until directed otherwise.

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Mark Pulliam
on February 07, 2017 at 13:15:00 pm

If it is true that The Supreme Court's ruling only applies to Ohio, Kentucky, Michigan, and Tennessee, and thus only in Ohio, Kentucky, Michigan, and Tennessee, has The Supreme Court, by removing the necessary requirement for a valid marriage contract, which is the ability and desire to exist in relationship as husband and wife, changed both the letter and the spirit of the law, in regards to the very essence of marriage, then it would follow that this new law makes it permissible for all persons in Ohio, Kentucky, Michigan, and Tennessee, who are not existing in relationship as husband and wife to receive special marital benefits.

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Nancy D.
on February 07, 2017 at 13:23:33 pm

Fair enough, as a matter of procedure. If I recall correctly, Obergefell was grounded in Fundamental Rights jurisprudence, not Equal Projection jurisprudence per se, and I find Fundamental Rights jurisprudence to be vaguer. If a state has not embraced same-sex marriage on its own, then a judge should defer to state policy until instructed otherwise by a superior tribunal.

That said, the process making a judge's tenure depend on popular assent is an abomination.

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Image of nobody.really
on February 07, 2017 at 15:26:21 pm

Fair enough on both statements; although, while not completely comfortable with the *implied* popular assent (as in most instances, voters for Judicial Seats appear to vote out of ignorance) I am also uncomfortable with the "popular assent" required by the various legal associations, the ABA as an example, who provide recommendations and "qualification" ratings for prospective candidates.

A bit of a quandary here, I should think!

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.