The Texas Supreme Court has agreed to consider rolling back the rights conferred by the SCOTUS marriage equality ruling.
Last September, the Texas Supreme Court refused to review a lower court ruling that cities may not deny benefits to same-sex couples that are provided for opposite-sex couples. However, last Friday the court caved in to Republican demands, agreeing to hear the case in March.
The best explanation for the flip is that the Texas court of elected justices is sensing the mood of the state — and maybe the country. It’s anticipating that a Supreme Court with at least two Trump nominees could reverse Obergefell. And it wants to signal in some way that it’s on the “right” — i.e. wrong — side of constitutional history. It still hasn’t issued an opinion, of course, but the grant of rehearing is not a good sign.
At least one Texas Supreme Court justice is on the record endorsing the theory that as long as states let gay people get married, the government can still treat their marriages as inferior to opposite-sex unions.
— Bradley 🏳️🌈✊🏼🌎 (@bradleybowen) January 26, 2017
Justice John Devine wrote last September that the court should have taken the case and Texas cities to refuse spousal benefits to same-sex couples.
“Marriage is a fundamental right,” Devine wrote. “Spousal benefits are not.” He added that “offering certain benefits to opposite-sex couples [to] encourage procreation within marriage” is of benefit to the state.
The Texas Supreme Court are literal Demons for agreeing. I fucking hate Texas.
— Ansem (@aansemm) January 26, 2017
However, writing for Slate, Mark Joseph Stern argues that this argument “is entirely, explicitly, indisputably foreclosed by Windsor and Obergefell”:
In Obergefell, the court did not merely guarantee marriage licenses to same-sex couples; it required states to recognize same-sex marriages “on the same terms and conditions as opposite-sex couples.” The meaning of this stipulation is pellucidly clear: When a state grants marriage-related rights—whether they relate to adoption or birth certificates or state employment benefits—it must provide them to all couples, gay or straight. Anything less constitutes a violation of the Due Process and Equal Protection clauses of the 14th Amendment.
Moreover, the notion that the government has a legitimate interest in favoring the biological children of opposite-sex couples over the adopted children of same-sex couples is just plain wrong. Indeed, Devine’s insulting claim is unequivocally proscribed by Windsor and Obergefell. When the Windsor court struck down the Defense of Marriage Act, it found that the law’s effect of “humiliat[ing]” the children of same-sex couples contributed to its unconstitutionality. “The law in question,” the court wrote, “makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” In Obergefell, the court held that the right to marry is constitutionally significant in part because it “safeguards children and families.”
He concludes that “the fight to roll back marriage equality in the Trump era has begun. And in Texas, anti-gay forces stand a good chance of scoring a devastating victory.”
Watch a Fox affiliate’s report below.
(Image via Twitter)