The Supreme Court declined Monday to hear a controversial Texas case on whether same-sex couples are entitled to spousal benefits.
The case was originally brought forward by Larry Hicks and pastor Jack Pidgeon in 2013. The two claimed that Houston didn’t have the right to extend benefits to the married partners of government employees under Windsor v. United States, which struck down the Defense of Marriage Act the same year.
Originally the Texas Supreme Court declined to hear the suitknown as Pidgeon v. Turnerby an 8-1 vote in September 2016. That allowed an earlier ruling from Texas’ 14th Circuit Court of Appeals to stand, one upholding the rights of LGBTQ couples in Houston.
But the court caved to pressure from two of Texas’ most powerful Republicans, Attorney General Ken Paxton and Lt. Gov. Dan Patrick, who urged them to take the case.
A unanimous ruling from the state’s highest bench in June allowed the suit to go forward, in which the court argued that Obergefell v. Hodges left many questions around same-sex marriage unsettled. The court claimed the plaintiffs “must now assist the courts in fully exploring Obergefell’s reach and ramifications, and are entitled to the opportunity to do so.”
LGBTQ advocates had hoped the Supreme Court would intervene in the case as it did earlier this year in Pavan v. Smith, another suit on the implications of the Supreme Court’s 2015 decision on marriage equality.
SCOTUS ruled in June that states must legally allow both same-sex parents to be printed on their child’s birth certificate. In two separate cases, the Arkansas Department of Health attempted to block a pair of lesbian mothers from being legally listed as the guardians of their newborn infants, as their wives were the partners who gave birth.
The Supreme Court subsequently found that Obergefell mandates same-sex couples be treated the same as opposite-sex couples, making the state’s actions unconstitutional.
Judges did not state why they declined to take similar action in Pidgeon v. Turner.
Advocacy organizations lambasted the decision not to hear the case. The media watchdog organization GLAAD said in a statement that the ruling “begins the process to undercut marriage equality by erasing spousal benefits, including health care, for legally married LGBTQ couples in the state of Texas.”
GLAAD President Sarah Kate Ellis claimed it would lead to “an onslaught of challenges to the rights of LGBTQ people at every step.”
But Lambda Legal Senior Counsel Ken Upton said the decision was “expected.”
Upton, one of the attorneys acting on behalf of the defendants in the case, tells INTO that the actionor rather, inactionis consistent with the Court’s wait-and-see approach to taking cases. SCOTUS is noted for its philosophy of leading from behind, he explains.
“It would have been nice if the Supreme Court stopped this nonsense, but that’s not the judges’ style,” Upton says in a phone interview. “They usually let things play out.”
One of the issues with taking a case like Pidgeon v. Turner is the same problem that plagued the challenge to Mississippi’s House Bill 1523 earlier this year. A federal appeals court dismissed a preliminary injunction against the discriminatory law in Junewhich would allow businesses, government agencies, and private individuals to deny services to LGBTQ people based on their “sincerely held religious belief.”
The court argued that because HB 1523 hadn’t gone into effect, the plaintiffs weren’t able to demonstrate harm.
Similarly, any discrimination resulting from Pidgeon v. Turner is theoretical, as of now. Same-sex partners in Houston currently have benefits under state law and have since the city first extended protections in 2013.
But Upton believes that the law is on the side of LGBTQ people. In November, a Texas federal court dismissed a challenge filed by Lambda Legal on behalf of same-sex couples in Houston to keep their protections from being stripped. Although the court found that the suit was premature, it noted that plaintiffs would have standing were they to face discrimination from the state government.
“The Texas court is required to follow the Obergefell, and it seems constitutionally impermissible for the city to deny the benefits,” judges wrote.
Equality Texas CEO Chuck Smith agreessaying that the Supreme Court has, in effect, already spoken on the subject of same-sex spousal benefits. Smith tells INTO the Obergefell ruling was “quite unequivocal” in stating that the “constellation of benefits that flow from it” have to be offered to same-sex couples in the same way they are to heterosexual couples.
“They aren’t talking about the performance of a ceremony,” he says. “They were talking about all the rights and responsibilities that flow from the institution of marriage.”
One factor working in LGBTQ couples’ favor is that when Pidgeon v. Turner was originally filed in 2013, marriage equality was not yet the law of the land. Same-sex couples would have to wait two more years. Now that the Supreme Court has sent the case back to the lower court to be reheard, Obergefell could render the discussion moot.
Much will be at stake when Texas hears the court challenge, which is likely to be litigated next year. The vast majority of Americans who have health insurance gain access to those benefits through their employer, Upton says.
But he believes the case is about something even more fundamental than partner benefits. The attorney compares the Texas suit to Masterpiece Cakeshop v. Colorado Civil Rights Commission, which is set to be heard by the Supreme Court this week. Both cases, Upton claims, are about whether the government should “be able to treat people differently.”
“When you look at the Masterpiece Cakeshop case that’s coming down the pipeline, it’s part of a bigger issue,” he says. “It’s not just about whether you get your employment benefits just like that case is not about whether you got a cake.”
“That misses the bigger picture,” he continues. “The bigger picture is that as long as the governmentand people who don’t want to comply with laws that apply to everyone elsecan create this two-tier system where some people get it and some people don’t, that’s a return to the Jim Crow era. There’s a common theme in all these cases.”
Photography:Win McNamee/Getty Images