Justice Kennedy's retirement marks the end of an era, but are we prepared for what comes next?
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, 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, 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  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. 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.
 478 U.S. 186 (1986).
 U.S. Constitution, Article VI.
 Parker v. Pidgeon, 477 S.W. 3d 353 (2015).