Today, I was a guest on Houston Public Radio to discuss the Texas Supreme Court’s upcoming oral argument in Pidgeon v. Turner. This is a very curious case. After a federal district court ruled in De Leon that Texas’s marriage amendment was unconstitutional, but before Obergefell was decided, the mayor of Houston decided to provide benefits to city employees in same-sex marriages. At the time, the district court’s decision was stayed by the 5th Circuit, so Texas’s marriage law was still in effect. Due to Texas’s quirky tax-payer standing laws, two residents of Houston brought suit against the Mayor, arguing that she was violating Texas’s marriage law.

The case bounced around the state courts of appeals, and finally a petition for review was filed with the Texas Supreme Court in September 2015–two months after Obergefell was decided. One year later, the petition for review was disposed. Justice Divine issued a dissent to the denial of the petition, arguing that the Court should have taken the case. After that dissent, there was a fairly aggressive public relations campaign to urge the Court to grant review. (Take a look at the docket entries from September 2016 through January 2017). Ultimately, the petition for rehearing was granted, and the case was set for oral argument tomorrow. Jonathan Mitchell, who formerly served as Texas Solicitor General, will be arguing for the taxpayers

During the segment on Houston Matters, I attempted to walk  the listeners through the fairly complicated procedural posture. I also discussed the merits of the case. Due to Justice Kennedy’s nebulous opinion in Obergefell, I don’t think this case is open-and-shut. There is certainly dicta in the opinion about “constellation of benefits,” but the core holding concerning marriage doesn’t necessarily mean any laws touching on marriage are invalid. Had the Court bothered to define a tier of scrutiny, maybe my answer would be different. But a discourse on dignity and love does not a judicial opinion make. The 9 Justices in Austin will have to make some law here, one way or the other, to resolve the case.

One issue that is worth a careful study is the impact of the 5th Circuit’s opinion of DeLeon on the Supreme Court of Texas’s decision. De Leon, unlike Obergefell, addressed the question of spousal benefits. However–and this may come as a surprise–5th Circuit decisions are not binding on the Texas Supreme Court. They are separate sovereign courts, each with a license to interpret the Constitution. We usually think of a Circuit Split as a divide between federal circuits, but it is quite feasible to have a split between the 5th Circuit and the Texas Supreme Court.

An amicus brief filed by Governor Abbott, Lieutenant Governor Patrick, and Attorney General Paxton makes this point:

The Court of Appeals also remanded for proceedings “consistent with . . . De Leon.” Parker, 477 S.W.3d at 355. This instruction was misleading, if not erroneous. The De Leon judgment is binding on the state officials who were defendants in that case and on their successors. See Ex parte Young, 209 U.S. 123 (1908) (holding that federal courts may enjoin state officials from vio- lating the federal constitution). But state courts are not enjoined by—and can- not be enjoined by—federal court orders. As the Supreme Court held in Ex parte Young: “An injunction against a state court would be a violation of the whole scheme of our government.” Id. at 162. While state courts should generally follow the U.S. Supreme Court’s judgments regarding the federal constitution, state courts are not bound by the judgment or the reasoning of the Fifth Circuit or the federal district court in De Leon. “In our federal system, a state trial court’s interpretation of federal law is no less authoritative than that of the federal court of appeals in whose circuit the trial court is located.” Lockhart v. Fretwell, 506 U.S. 364, 375 (1993) (Thomas, J., concurring), cited by Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11 (1997). As one prominent law professor has explained: “Decisions of lower federal courts on issues of federal law are not binding precedents for a state court, which may properly view such precedents as no more persuasive than the views of the state courts of a differ- ent jurisdiction.” Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 HARV. L. REV. 1128, 1231 n.495 (1986); see also David L. Shapiro, State Courts and Federal Declaratory Judgments, 74 NW. U. L. REV. 759, 771 (1979) (“[Lower] federal courts are no more than coordinate with the state courts on issues of federal law.”).

This premise also came up in the post-Obergefell SSM litigation in Alabama. To grossly summarize, there were competing injunctions from the Alabama Supreme Court and the U.S. District Court for the Southern District of Alabama–the former ordered state probate judges to continue enforcing the state’s marriage law, the latter ordered the same probate judges to cease enforcing the law. Chief Justice Moore’s administrative order reminded the probate judges that the Alabama’s court was still in effect. Moore is currently being disciplined for, among other reasons, the premise that he ordered state judges to flout Obergefell. This is in error. Nothing in Obergefell addressed Alabama’s conflict between dueling injunctions from state and federal courts. (The case only concerned the marriage laws from Ohio, Michigan, Kentucky and Tennessee). Neither the Alabama Supreme Court nor the Southern District of Alabama is superior over the other with respect to interpreting the Constitution. As a practical matter, the threat of contempt and sanctions from the federal court is what keeps the probate judges in line. (See my piece with Howard Wasserman). What about the argument that Obergefell applied to all parties, everywhere? Stay tuned to my future piece, The Irrepressible Myth of Cooper v. Aaron.

You can listen to the segment here.