This week, the Mayor of Houston announced that city employees in same-sex relationship would receive benefits.
The city of Houston will offer health and life insurance benefits to all spouses of legally married employees, including same-sex couples, despite a voter-approved 2001 charter amendment that had banned the practice, Mayor Annise Parker announced Wednesday.
Parker’s action relied on a legal opinion from City Attorney David Feldman that cited the U.S. Supreme Court overturning the federal Defense of Marriage Act this year, federal agencies’ subsequent decisions to recognize legal same-sex marriages and other relevant case law.
“Based on the right to equal protection under the law, it is unconstitutional for the city to continue to deny benefits to the same-sex spouses of our employees who are legally married,” Parker said. “This change is not only the legal thing to do, it is the right, just and fair thing to do.”
I’d like to read that opinion. This decision seems to be in conflict with the city charter, which to my knowledge, has not been challenged.
The 2001 charter amendment states, in part, “Except as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children.”
Parker said the language is plan in referring to legal marriages. Same-sex marriages conducted in any jurisdiction where the act is legal, including foreign countries, 17 states and the District of Columbia, will be recognized, she said.
“The amendment specifically permits benefits to be provided to legal spouses of employees,” Parker said. “I can only assume that it was contemplated that there would never be a time when same-sex couples were in legally sanctioned relationships.”
I suspect that the “legal spouses” would be a function of Texas state law, and under the Texas Constitution, marriage is limited to a union between a man and a woman. So Parker’s decision seems to say that the Texas Constitution is not compatible with Windsor? This seems to be a bold reading of the case.
I received this note from the Harris County GOP List-serve. I wouldn’t usually publish this stuff on my blog, but it’s the only suggestion I’ve seen about imminent litigation:
Mayor Parker has abused her office by her actions this week. It is no surprise that she did this only after her reelection because she knows she is an extremist that the voters of Houston would not support if they knew the real Annise Parker. Her entire campaign was negative and she has never had more than ten percent of the city’s support in an election.
We are Houston, not San Franscisco (sic). We are Texas, not New York. We hold the values of marriage being a sacred institution between one man and one woman. Mayor Parker will be taken to court and defeated. The rule of law and family values in Houston will be victorious.
The San Francisco Chronicle reports that Houston is not bracing for litigation:
Janice Evans, a spokeswoman for Parker, said city leaders at this point are not bracing for any possible legal action.
“I guess we’ll discuss that if and when it happens,” she said
Thomas Oldham, a professor at the University of Houston Law Center, said unlike domestic partner policies in other Texas cities, Houston’s policy is more vulnerable to legal challenge because of the state’s constitutional amendment that defines marriage as between a man and a woman.
What Houston has done “would be more squarely in violation of the constitutional provision,” Oldham said.
I’m not sure who would have standing to enforce this. Perhaps someone in city government, or maybe the county Treasurer for misappropriation of funds?