AUSTIN - For most states, the issue of same-sex marriage was decided when the U.S. Supreme Court issued its 2015 Obergefell decision that legalized same-sex marriage across the country. But Texas Attorney General Ken Paxton, Governor Greg Abbott and Lt. Governor Dan Patrick are joining in a Texas Supreme Court case to open up the issue of same-sex marriage again.
The trio of state leaders made their latest claims on same-sex marriage in an amicus brief filed Friday in the case of Hicks vs. Houston Mayor Sylvester Turner and the city of Houston. At issue in the case is a decision by Turner to extend employee benefits to same-sex couples at a time when Texas law prohibited same-sex marriage and other issues related to same-sex marriage.
The brief argued two main points:
- “While Obergefell obligates the State to grant and recognize same-sex marriages, it does not bind state courts to resolve all other claims in favor of the right to same-sex marriage
- "De Leon binds executive branch officials but does not affect the authority of Texas courts to apply any provision of the Texas Constitution and Family Code to the extent doing so is not inconsistent with the Supreme Court’s judgment in Obergefell.”
In the brief, the trio of state leaders argued that while the U.S. Supreme Court ruled in Obergefell that states have to recognize and grant same-sex marriages, it doesn’t apply to this case because it’s a “related, but different constitutional question involving municipal benefits.”
The brief makes the argument of the difference between a Supreme Court judgment and a Supreme Court opinion. Specifically, the trio of Paxton, Abbott, and Patrick argue that the Supreme Court may or may not issue an opinion to explain the judgment, but even if it does, every word of the opinion “does not thereby become constitutional law that binds other branches of state and federal governments.”
According to the brief, even though the judgment in Obergefell is “authoritative,” Associate Justice Kennedy’s opinion in the case explaining the judgment “is not an addendum to the federal constitution and should not be treated by state courts as if every word of it is the preemptive law of the United States.”
Paxton’s brief said, “state courts are coordinate with – not subservient to – federal district courts and federal courts of appeals when it comes to interpreting the federal constitution.” Using that rationale, Paxton said that while a decision could tie the hands of executive branch officials, “a federal district court judgment against state officials does not amend the Texas Consitution or the Texas Family Code.”
Further, Paxton argued that because the state constitution isn’t amended by a federal court ruling, the decision “does not require state courts to act as if those provisions of Texas law no longer exist. Federal courts lack the power to issue injunctions against state courts, and a federal district court order against the Governor and other executive branch officials does not bind Texas courts in any way.”
The state officials hope the court will either reissue an injunction against the benefits or send the case back to the lower courts with more specific instructions on how to analyze the issues at hand.