The nine-year-old case began when former Houston Mayor Annise Parker directed the city in 2013 to provide family benefits to legal same-sex partners of city employees, sidestepping a city charter amendment that voters had approved in 2001. Larry Hicks and pastor Jack Pidgeon sued over the directive, claiming it violated the city charter, the Texas Family Code, and the Texas Constitution. A lengthy period of litigation followed.
In their petition for review to the Supreme Court of Texas, the two ask whether the U.S. Supreme Court’s 2015 decision in Obergefell v. Hodges could retroactively validate the City of Houston’s actions two years before. The petition also asks whether the lower courts erred in denying the citizens’ request to stop the “misappropriation of taxpayer funds in violation of state law” by blocking the city from providing benefits deemed technically illegal under state law, which only recognizes legal marriage between a man and a woman.
The Texas Supreme Court’s refusal of the case was the only denial announced on Friday that came with a dissent. Justice John Devine issued an eleven-page dissenting opinion, saying the case presented issues too important to remain ignored.
“If the case was important enough to grant review five years ago, it is just as important now,” Devine wrote.
“What’s more, the issues undergirding this particular case have never been decided by either this Court or the Supreme Court, so the outcome is not preordained. Denying review will leave significant constitutional issues undetermined and subject to assumption.”
While the Obergefell decision conferred a fundamental right to same-sex marriage, the Houston case involves a tax-funded benefit. Devine insisted the distinction matters.
“This case involves no fundamental rights — the central question is about entitlement to employment benefits, which the City has no constitutional duty to offer to its employees or their spouses. Thus, any analysis of that question would employ a standard far more deferential to state law than the strict scrutiny by which the Court decided Obergefell,” the dissent reads.
“In short, no previous case commands a certain outcome in this case because none has involved the issues and laws presented here. In my view, the outcome is far from inevitable.”
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