The Supreme Court of Texas’s decision in Pidgeon v. Turner arose in a fairly unique set of circumstances. This was not the usual civil-rights case, where the government sought to deny benefits to a specific group, and members of that group brought suit to compel equal treatment. To the contrary, the Mayor of Houston voluntarily (i.e., without court order) granted employment benefits to the spouses of all city employees, regardless of whether they were in a same-sex or opposite-sex marriage. Two taxpayers in Houston sued the Mayor, contending that Texas’s laws prohibited the payment for these perquisites. (I will avoid a discussion of Texas taxpayer standing law here, but to grossly simplify, it is really quirky). Specifically, Article I, Section 32(a) of the Texas Constitution provides “Marriage in this state shall consist only of the union of one man and one woman.” Section 32(b) adds that “[t]his state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Following United States v. Windsor, the mayor of Houston determined that enforcing Section 32(b) would result in her violating the federal Constitution. Windsor, which ruled unconstitutional the federal Defense of Marriage Act, did not hold that all sexual-orientation classifications were unlawful. (Neither did Obergefell for that matter). Moreover, the opinion stressed the importance of federalism, at least leaving open the possibility that states had greater latitude when managing family law. But in an exercise of what can be called mayoral departmentalism, the Mayor of Houston interpreted the Constitution for her own office, without any authoritative statements from Texas or federal courts. As I often tell my students, courts do not have a monopoly on interpreting the Constitution; everyone who takes the oath to the Constitution must assess how each and every action he or she takes comports with our great charter. However, in our system, there is a check of departmentalism: if a court ordered the Mayor to continue complying with Article I, Section 32 as applied to employment benefits–because such action did not run afoul of the 14th Amendment–defiance by the Mayor could give rise to contempt proceedings.

With this background, the question presented in Pidgeon becomes very precise: does Article I, Section 32 of the Texas Constitution continue to prohibit the Mayor from denying employment benefits to spouses of city employees who are in same-sex marriages? Now, you may ask, isn’t Article I, Section 32 unconstitutional? That question reflects a commonly held, but incorrect understanding of how courts operate. In common parlance, one would say courts “strike down” or “invalidate” a law. But they actually do no such thing. The law remains on the books. Rather, what courts can do is issue injunctions that bar certain officials from enforcing that law in whole, or in part. Officials who do not comply with those orders can be held in contempt. Officials who are not bound by that injunction generally behave in a similar fashion as a matter of precedent–but they are not compelled to do so. (Howard Wasserman and I discuss the difference between injunctions and precedents in The Process of Marriage Equality).

To use another Lone Star State example, consider Lawrence v. Texas. While it is perhaps shorthand to say that the Supreme Court “struck down” Texas’s criminal prohibition on sodomy–see MacDonald v. Moose, 710 F.3d 154, 165 (4th Cir. 2013)–more precisely the majority opinion ordered that the “judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.” Not even the “transcendent dimensions” of Justice Kennedy’s prose could physically remove Section 21.06(a) from the Texas Penal Code. Courts lack what Judge Easterbrook referred to as a “writ of erasure.” Indeed, the provision remains on the books, albeit appended by a notation from the Texas Legislature that “Section 21.06 was declared unconstitutional by Lawrence v. Texas, 123 S.Ct. 2472.” If officials in the state of Texas attempted to enforce this prohibition, under the judgment in Lawrence, they would be on the hook for damages under 42 U.S.C. § 1983. This judgment, however, did not directly implicate the laws of any other state. Even after Lawrence, and to this day, Virginia’s code treats as a felon one who “voluntarily submits to such carnal knowledge,” which includes sodomy. (Va. Code Ann. § 18.2-361(A)). The precise scope of injunctive relief is very important, even for the Supreme Court, which usually doesn’t sweat the details (the loosely crafted per curiam decision in Trump v. IRAP is proof of this inattention to detail).

What then is the status of Article I, Section 32? As a threshold matter, Obergefell had nothing to say about this specific provision. That case concerned only the marriage laws of Kentucky, Michigan, Ohio, and Tennessee. Instead, the answer comes from followup litigation in Texas. In February 2014, the U.S. District Court for the Western District of Texas ruled that Article I, Section 32 was inconsistent with the 14th Amendment, but stayed its ruling. Hours after Obergefell was decided, the plaintiffs filed an emergency motion to lift the stay. The case involved four defendants: the Governor of Texas, the Attorney General of Texas, the Commissioner of the Texas Department of State Health Services, and the Bexar County Clerk. According to the motion, only the Bexar County Clerk joined the motion; the “remaining Defendants are unopposed.”

Shortly thereafter, the district court lifted the stay of his injunction, and “enjoin[ed] Defendants from enforcing Article I, Section 32 of the Texas Constitution, any related provisions in the Texas family Code, and any other law or regulations prohibiting a person from marrying another person of the same sex or recognizing same-sex marriage.” On July 1, the 5th Circuit affirmed the district court’s injunction, and ordered that the “mandate shall issue forthwith.” Note that this injunction only concerned the four named defendants, and not the Mayor of Houston. While the Mayor of Houston was well within her departmental authority to follow De Leon as precedent, neither De Leon nor Obergefell (nor, more recently, Pavan v. Smith) directly resolve the question at issue in Pidgeon. The Supreme Court of Texas observed on p. 19 of its opinion:

The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and—unlike the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.

Notwithstanding Obergefell and De Leon, Texas’s marriage laws still retain some residual authority as to some state officials. Until a court holds otherwise following the remand in Pidgeon, Article I, Section 32 continues to apply to the issuance of employment benefits to same-sex spouses.  The Supreme Court of Texas addressed this exact point in footnote 20:

We note that neither the Supreme Court in Obergefell nor the Fifth Circuit in De Leon “struck down” any Texas law. When a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it, even though the government may no longer constitutionally enforce it. Thus, the Texas and Houston DOMAs remain in place as they were before Obergefell and De Leon, which is why Pidgeon is able to bring this claim.

Under the auspices of mayoral departmentalism, the mayor can choose to disregard Article I, Section 32, but it remains possible (though unlikely) that a state court could hold the mayor in contempt. Ultimately, as I wrote yesterday, by extending the logic of Obergefell and Pavan in a subsequent proceedings, courts should find that the denial of spousal employment perquisites does run afoul of the 14th Amendment. This final step, however, is necessary to resolve the case.