Texas Supreme Court: Obergefell did not address same-sex benefits for municipal workers, so ‘neither will we’

Finding that the U.S. Supreme Court did not specifically address the issue in its 2015 ruling in Obergefell v. Hodges, the Texas Supreme Court declined to address whether the City of Houston could grant benefits to the same-sex spouses of city workers and sent the case back down to the trial court for further proceedings. Noting the High Court’s decision June 26 in Pavan v. Smith, the Texas Supreme Court wrote that, “[a]lready, the Supreme Court has taken one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell, and there will undoubtedly be others.” In Pavan, the Court held that, having chosen to make its birth certificates more than mere markers of biological relationships and to use them to give married parents a form of legal recognition not available to unmarried parents, the state of Arkansas could not, consistent with Obergefell, deny married same-sex couples that recognition. The issue presented here must work its way through the lower courts, said the Texas Supreme Court in a unanimous ruling, throwing out a lower court ruling finding that spouses of gay and lesbian public employees were entitled to same-sex marriage benefits and ordering the trial court to reconsider the case.

Background.

Following the U.S. Supreme Court’s June 2013 decision in United States v. Windsor, Houston’s city attorney advised then-Mayor Annise Parker that the city was permitted to extend benefits to city employees’ same-sex spouses who were legally married in other states “on the same terms it extends benefits to heterosexual spouses,” and that refusing to do so would be unconstitutional. Accordingly, on November 19, 2013, Mayor Parker sent a memo to the city’s HR director, and shortly thereafter, the city began to offer those benefits.
On December 13, 2013, the petitioners filed suit against the City of Houston and the mayor in state court, challenging the provision of benefits. The mayor and the city removed the case to federal court, which ultimately remanded it back to state court. But by then, the state court had apparently dismissed the suit for want of prosecution. The petitioners then reasserted their claims by filing the present suit in October 2014, alleging that the mayor’s directive authorizing those expenditures violated state and local law.

Federal impact only?

Prior to Windsor, the city had amended its charter, and the state had amended the Texas Family Code and the Texas Constitution, to more forcefully preserve the traditional view of marriage. The Texas Supreme Court opinion refers to these laws as “DOMAs,” and the petitioners argued that these DOMAs remained valid and enforceable despite Windsor because Windsor addressed only the federal DOMA and its impact on persons married in states that had elected to allow same-sex marriages. Windsor merely required the federal government to acknowledge marriages the various states may recognize, the petitioners claimed; it did not require Texas or any other state to license same-sex marriages or recognize same-sex marriages performed in other states.
The mayor and city asserted governmental immunity and challenged the petitioners’ standing, and the trial court ordered a temporary injunction prohibiting the mayor and the city from providing “benefits to persons who were married in other jurisdictions to [c]ity employees of the same sex.” The mayor and the city filed the present interlocutory appeal.

Obergefell.

While that interlocutory appeal was pending in the state court of appeals, the U.S. Supreme Court held in Obergefell that under both the Due Process and Equal Protection Clauses of the Fourteenth Amendment, states may not exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. The state court of appeals then reversed the temporary injunction and remanded the case to the trial court for further proceedings.

Texas Supreme Court ruling.

But the petitioners here asserted that the appellate court’s opinion and judgment either imposed, or could be read as imposing, greater restrictions on remand than Obergefell and Texas Supreme Court precedent require. Agreeing, the Texas Supreme Court reversed the state court of appeals’ judgment, vacated the trial court’s temporary injunction order, and remanded the case to the trial court for further proceedings.
The Texas Supreme Court cautioned it was only addressing an interlocutory appeal from a trial court’s orders denying a plea to the jurisdiction and granting a temporary injunction. It held the Fifth Circuit’s 2015 decision in De Leon v. Abbottdid not bind the trial court on remand. In De Leon, the Fifth Circuit, following Obergefell, ruled in favor of plaintiffs who sought to have the State of Texas recognize their same-sex marriage, and on July 7, 2015, the district court in De Leon entered a final judgment declaring that the Texas DOMAs violated the federal Constitution’s Due Process and Equal-Protection clauses and permanently enjoining the Governor from enforcing Texas’s laws prohibiting same-sex marriage. The State of Texas has been providing benefits to state employees’ same-sex spouses ever since.

Don’t mess with Texas.

The Texas Supreme Court decision had three component holdings. After concluding that it had jurisdiction over the present interlocutory appeal (by the mayor and the city), it held that the state court of appeals’ judgment does not bar the petitioners from seeking all appropriate relief on remand-or bar the mayor from opposing that relief. The Texas high court agreed with the petitioners that the court of appeals should not have ordered the trial court to proceed on remand “consistent with” De Leon. Although the trial court “should certainly proceed on remand ‘in light of’ De Leon,” the trial court is not required to proceed “consistent with” it, the Texas Supreme Court wrote.

Procedural arguments.

The petitioners also argued that by “reversing” the trial court’s temporary injunction instead of vacating or dissolving it, the state court of appeals’ judgment might have a res judicata effect prohibiting them from seeking or obtaining the same or similar relief on remand. On the other hand, the mayor and the city contended that the state court of appeals could not have erred by reversing the injunction because state law only permits a court of appeals to “reverse the trial court’s judgment and remand the case for further proceedings.”

Change in the law.

Even though Texas appellate courts have held that the dissolution of a temporary injunction bars a second application for such injunctive relief, that is not true if the second request is based on changed circumstances, including a change in the law, not known by the applicant at the time of the first application, the Texas Supreme Court explained, adding that the trial court may consider the injunction anew in light of the new law or circumstances. In this case, Obergefell was clearly a change in the law that justified the dissolution of the trial court’s injunction. But the petitioners were not precluded from seeking the same or similar relief on remand. On remand, the trial court must consider both parties’ arguments regarding the effect of Obergefell and may grant whatever relief is then appropriate, the state high court instructed.

Claw-back relief.

Second, the Texas Supreme Court held that the state court of appeals did not err by failing to affirm the temporary injunction to the extent it required the city to claw back payments made prior to Obergefell. At least two obstacles prevented it from reaching this issue here. First, the petitioners never requested an injunction requiring the city to claw back benefits it provided before Obergefell; second, the trial court never granted one. Rather, the temporary injunction prospectively prohibited the city from furnishing benefits to persons who were “married in other jurisdictions to [c]ity employees of the same sex.” That order did not to any extent require the city to recover benefits it had previously paid. As a temporary injunction, its only proper function was to preserve the status quo.

Don’t ask us.

The Texas high court declined to instruct the trial court how to construe Obergefell on remand. While it agreed with the mayor and the city that any effort to resolve whether and the extent to which the U.S. Constitution requires states or cities to provide tax-funded benefits to same-sex couples without considering Obergefell would simply be erroneous, it also agreed with the petitioners that the Supreme Court did not resolve that specific issue-whether states must provide the same publicly funded benefits to all married persons-in Obergefell. Moreover, unlike the Fifth Circuit in De Leon, the High Court did not hold that the Texas DOMAs are unconstitutional. Leaving it at that, the Texas Supreme Court declined to offer any instructions to the trial court as to how to construe Obergefell, stating that both sides “are entitled to a full and fair opportunity to litigate their positions on remand.”
Although the court observed that some amici have argued it should resolve the parties’ dispute in the present interlocutory appeal, the state high court found it could not resolve the parties’ claims at this point because they have not yet been fully developed or litigated.

Immunity.

Finally, the court addressed the mayor’s and the city’s interlocutory appeals from the trial court’s orders denying their pleas to the jurisdiction based on governmental immunity. This issue was briefed to the state court of appeals but before Obergefell was decided. Noting its hesitancy to ignore the issue because governmental immunity implicates the courts’ subject-matter jurisdiction to hear the petitioners’ claims, the state high court found, however, that Obergefell may also affect the immunity defenses. On remand, the petitioners will have the opportunity to replead their claims against the city and the mayor, and the city and the mayor will have the opportunity to file a new plea to the jurisdiction as to any such claims, the Texas Supreme Court concluded.

SOURCE: Pidgeon v. Turner, (Tex. Sup. Ct.), No. 15-0688, June 30, 2017.
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