DC Deciphered

This is not a post about the health care debate.  I should be writing something about it, since it’s a topic I’ve covered here more than any other, and Republicans just took a huge step in their quest to repeal Obamacare.  But I’m at a loss for how to express my disgust over the whole process, yet somehow, simultaneously feel like I could write a book about it.  So I’m going to spare you guys that for now.  In the meantime . . .

Here’s a case that slipped under the radar a few weeks ago, because – as always – there were so many juicier news stories to keep up with. But I think this could eventually end up being a big deal. On Friday June 30, the Texas Supreme Court unanimously reversed a lower court decision that had granted health & life insurance benefits to same sex spouses of city employees. (Pidgeon v. Houston).

The Texas Supreme Court said that, despite the United States Supreme Court ruling in Obergfell v Hodges, which legalized same sex marriage throughout the country, it wasn’t clear what rights other than marriage the Court intended to grant to same sex couples. To be clear, the Texas Supreme Court didn’t definitively rule that the spousal benefits should not be extended, but it ruled that Obergfell didn’t necessarily require that they should be. So it sent the case back to the lower court to be reconsidered, taking Obergfell into consideration (the Obergfell ruling had come down while the Texas case was working its way through the lower courts).

But the Texas supreme court’s reasoning in overturning the case in the first place is nonsensical, because Obergfell need not grant any additional rights other than the right to marriage for this case to be decided.  Marriage itself confers a collection of legal rights within it.  So any married couple – whether same sex or opposite sex – is now entitled to all of the legal rights that come with a legal marriage.  If an opposite sex spouse is entitled to insurance benefits through the city, then there would be no legal justification for denying it to a same sex spouse.  Their marriage is equal under the law.

And just in case this had not already been self-evident, the United States Supreme Court very conveniently made this clear just the Monday prior to the Texas ruling (just 4 days before the Texas Supreme Court handed down its decision). On June 26, the Supreme Court ordered Arkansas to put the names of both parents in a same sex couple on their baby’s birth certificate (Pavan v Smith).  In an unsigned opinion, the Supreme Court said about Arkansas’ refusal to do so:

Because that differential treatment infringes Obergefell’s commitment to provide same-sex couples “the constellation of benefits that the States have linked to marriage,” we reverse the state court’s judgment.

That “constellation of benefits” the Court refers to is all those other rights that come with marriage, as I discussed above.  The Court doesn’t need to explicitly grant each individual right separately in order for it to be clear that they apply just as much to same sex couples as they do to straight couples.  Anyone who understands how the law works should know this, so what the Texas Supreme Court did is clearly not based in law.

It’s noteworthy however that at least three justices dissented in Pavan. In a dissenting opinion written by Justice Gorsuch (joined by Thomas and Alito), the Court’s minority argued that there were rational reasons for Arkansas to want to follow a “biology based regime” – i.e. one that puts the biological parents on the birth certificates.  But that’s not the regime Arkansas followed for opposite sex couples (e.g. in the case of artificial insemination, the mother’s husband is listed as the father).  So Gorsuch’s logic is strained here to the point of being almost nonexistent.

Note too that it’s possible that Justice Roberts also dissented in the Pavan case, but in a per curiam (i.e. unsigned) decision such as this one, the Justices don’t have to indicate which side of the decision they fall on.  The three Justices chose to sign their dissent, but that doesn’t necessarily mean they were the only dissenters.  (We know there were at least five in the majority – it’s probably safe to assume that the five who were in the majority on Obergfell, were also in the majority here. So that only leaves Roberts’ vote in question).  So bottom line, there were at least three and possibly four Justices dissenting in Pavan.

So this indicates to us that there’s no telling how the Texas case – or a case like it – might be resolved if/when they eventually make it up to the Supreme Court.  It seems possible that the Texas case or one along similar lines will eventually make its way up there, but it could take a couple years for that to happen.  And (as much as I hate to write this for fear that it’ll have some Beetlejuice-like powers of summoning forth the thing I fear), we just don’t know what the makeup of the Supreme Court could be 2 or 3 years from now.

We already have (at least) three Justices that appear willing to ignore precedent in order to fulfill their ideological preferences, so any outcome is possible by the time a case like the Texas case gets reviewed at the high court.  If you thought the fight over same sex marriage was over, think again.  These guys play the long game.

*****

Note: Interestingly, the Texas state supreme court originally declined to hear this case.  But they later agreed to after pressure from the state’s top Republicans, including Governor Greg Abbott and Attorney General Ken Paxton:

This group of Republicans also asked the court to clarify that the U.S. Supreme Court case legalizing same-sex marriage, Obergefell v. Hodges, does not “bind state courts to resolve all other claims in favor of the right to same-sex marriage.”

The entire Texas supreme court is also made up of Republicans.  I’m not sure if any of them would have been inclined to rule differently anyway, but do you think any of those judges felt they had a choice about how to rule on this one??