In February, I previewed and reviewed the Texas Supreme Court’s oral arguments in the case of Pidgeon v. Turner. The posture of this case is complicated. 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 taxpayer standing laws, two residents of Houston brought suit against the Mayor, arguing that she was violating Texas’s marriage law. The trial court issued a temporary injunction against the payment of the benefits.
After Obergefell was decided, the Fifth Circuit issued a subsequent decision in De Leon which enjoined enforcement of Texas’s marriage law by certain state officials. (For those who think Obergefell instantly bound all official nationwide–what I’ve referred to as “judicial universality”–the need for a subsequent decision in De Leon proves to the contrary). Following De Leon, the Fourteenth Court of Appeals in Houston reversed the temporary injunction and remanded the case to the trial court “for proceedings consistent with Obergefell and De Leon.” (emphasis added).
The case was appealed to the Texas Supreme Court, and the petition for review was disposed (i.e., denied). 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. A number of conservative interest groups blanketed the Court with letters, postcards, emails, and even phone calls. (Take a look at the docket entries from September 2016 through January 2017). Ultimately, the petition for rehearing was granted, and the case was reargued.
On Friday, the Supreme Court of Texas issued a unanimous decision reversing the Fourteenth Court of Appeals. After finding that the parties had standing, and that jurisdiction was present, the Court concluded that the lower court erred. Specifically, “the court of appeals should not have ordered the trial court to proceed on remand ‘consistent with’ De Leon.” Why? Because that instruction “could be misread to mean that De Leon is binding on the trial court.” The Court explained:
We agree with Pidgeon that De Leon does not bind the trial court in this case and the court of appeals should not have instructed the trial court to conduct further proceedings “consistent with” De Leon. Penrod Drilling, 868 S.W.2d at 296.16 That does not mean, however, that the trial court should not consider De Leon when resolving Pidgeon’s claims. Fifth Circuit decisions, particularly those regarding federal constitutional questions, can certainly be helpful and may be persuasive for Texas trial courts. Moreover, De Leon could potentially affect the relief the trial court might provide on remand, since De Leon has enjoined the Governor from enforcing the Texas DOMAs and the State of Texas is thus providing benefits to state employees’ same-sex spouses. The trial court should certainly proceed on remand “in light of” De Leon, but it is not required to proceed “consistent with” it.
This much is not controversial, if not well understood. Decisions of the federal courts of appeals are persuasive, but not binding on state courts. They are separate sovereigns, with parallel authority to interpret the law.
The far more controversial aspect of the Court’s opinion concerned whether Obergefell itself provided the rule of decision. During oral arguments, several Justices asked Jonathan Mitchell, arguing for petitioners, about what precisely Obergefell held, what the appropriate level of scrutiny was to consider the provision of spousal benefits, and whether the state could ever distinguish between same-sex and opposite sex couples. Mitchell rejected the argument that strict scrutiny applied to spousal employment benefits, as separate from the right to marriage itself. Only rational basis review applied, he contended. Moreover, he said that while the state could not abolish the institution of marriage, which is now a substantive fundamental right, it could abolish spousal employment benefits. Counsel for the city of Houston conceded that that Obergefell did not hold that benefits are fundamental rights. I tweeted at the time, “The Justices are really grappling with questions of scrutiny, and the scope of the fundamental right. No discussions of ‘dignity.'”
The shortfalls of Justice Kennedy’s majestic decision become apparent when lower courts try to apply it. The Court did not hold that all classifications on the basis of sexual orientation were prohibited. (Such is not the case even for race). Nor did it hold that such classifications were subject to strict scrutiny. (AMK does not care much for tiers of scrutiny). Even if the right of same-sex marriage was fundamental, the Court did not assert that all incidents of that marriage were also fundamental; only those that are within the “constellation of benefits that the Stat[e] ha[s] linked to marriage.” More generally, a state may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.”
Pidgeon does not represent an attempt to “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” They can get married just the same as opposite sex-couples, with the exact same “terms and conditions” with respect to marriage licenses, birth certificates, death certificates, adoption rights, community property, and the like. Instead, the case arises in the ancillary employment context, with respect to a potential satellite within the “constellation of benefits that the Stat[e] ha[s] linked to marriage.” Specifically, the question presented is whether the state must “provide the same publicly funded benefits to all married persons.” It is easy enough to jump and say that the “constellation of benefits” that City of Houston provides is of course “linked to marriage.” But this is a factual question–one not developed in the trial court. My tentative conclusion (without knowing more about the benefit structure) is that the answer is yes. That is, before Obergefell, the state afforded benefits to opposite-sex spouses, but not mere girlfriends or boyfriends, as a means of recognizing special unions that ought to be rewarded–or, to use the parlance, promote responsible procreation. In that sense, the “benefits” would be “linked to marriage.” But this conclusion is not self-evident. Both Windsor and Obergefell relied on extensive factual findings to determine whether certain laws were unconstitutional. Pidgeon is not, as some have argued, an effort to evade Obergefell. Rather, in light of the nascent posture of this case–a temporary injunction–the Court remanded so that both parties are “entitled to a full and fair opportunity to litigate their positions.”
The Supreme Court’s recent per curiam decision in Pavan v. Smith is not to the contrary. In that case, Arkansas law expressly connected a child’s birth certificates to heterosexual marriage. If a woman who is married to a man gives birth, the husband would automatically be listed on the child’s birth certificate, regardless of whether he was the biological father. However, if a woman who is married to a woman gives birth, the wife would not be listed on the child’s birth certificate. The Arkansas Supreme Court upheld this practice. The Supreme Court summarily reversed, finding that Arkansas “denied married same-sex couples access to the ‘constellation of benefits that the Stat[e] ha[s] linked to marriage.'”
Why was the provision of birth certificates within that “constellation of benefits” that were “linked to marriage”? As a threshold matter, the Court’s decision in Obergefell expressly identified birth and death certificates as fundamental incidents of marriage. The per curiam decision explained:
As we explained there, a State may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” 576 U. S., at ___ (slip op., at 23). Indeed, in listing those terms and conditions—the “rights, benefits, and responsibilities” to which same-sex couples, no less than opposite-sex couples, must have access—we expressly identified “birth and death certificates.” Id., at ___ (slip op., at 17). That was no accident: Several of the plaintiffs in Obergefell challenged a State’s refusal to recognize their same-sex spouses on their children’s birth certificates. See DeBoer v. Snyder, 772 F. 3d 388, 398–399 (CA6 2014). In considering those challenges, we held the relevant state laws unconstitutional to the extent they treated same-sex couples differently from opposite-sex couples. See 576 U. S., at ___ (slip op., at 23). That holding applies with equal force to §20–18–401.
For James Obergefell, seeking to modify his late-spouse John Arthur’s death certificate was essential to the recognition of his marriage. “By statute, they must remain strangers even in death,” Justice Kennedy explained, “a state-imposed separation Obergefell deems ‘hurtful for the rest of time.'” Likewise, same-sex couples couples asked the states to modify their children’s birth certificates so that both parents were listed; this was seen as essential to the recognition of their marriage.” They sought relief, the Court explained, “from the continuing uncertainty their unmarried status creates in their lives.” These benefits are within the inner orbit of that constellation.
Moreover, the birth certificate regime at issue in Arkansas was expressly tied to heterosexual marriage. By doing so, the state was denying the recognition of same-sex marriages.
Arkansas has thus chosen to make its birth certificates more than a mere marker of biological relationships: The State uses those certificates to give married parents a form of legal recognition that is not available to unmarried parents. Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.
The linkage in Pavan was apparent on its face: the Arkansas law, like the policies at issue in Obergefell, denied certain benefits for same-sex couples that diminished the recognition of their marriage. With respect to Pidgeon, the factual record is not so clear. Does denying employment benefits to same-sex spouses deprive couples of the “constellation of benefits that the Stat[e] ha[s] linked to marriage”? Again, my tentative answer is yes, but this is a question that can be considered on remand. I suspect the lower court will ultimately decide that the denial of spousal benefits under Houston law is sufficiently linked to marriage.
There will no doubt be extensive litigation about what perquisites orbit within the “constellation of benefits that the Stat[e] ha[s] linked to marriage.” By its own terms, a constellation must be finite and fixed; it is not boundless. To reiterate a point I made earlier, Obergefell did not hold that all classifications on the basis of sexual orientation are prohibited, or even subject to strict scrutiny. Some benefits, within the constellation (such as birth and death certificates) can be constitutionally mandate. Other benefits, which are sufficiently attenuated from marriage, will drift outside that orbit. Such penumbral rights are not constitutionally mandate. (Here, at least, “penumbra” makes both astronomical and jurisprudential sense).
It is important not to lose sight of the fact that Obergefell failed to resolve many issues concerning same-sex marriage. Indeed, despite its magisterial tone, the case left far too many issues open. It is no wonder that law professors are already trying to rewrite the case with some jurisprudential rigor (as they’ve done for Roe v. Wade and Brown v. Board of Education).