Two years after the US Supreme Court ruled that same-sex couples have a constitutional right to marry, the Texas Supreme Court suggested in an opinion on Friday it was unclear what rights married same-sex couples have, sending a case over spousal benefits back to a lower court and effectively starting over a zombie legal dispute from scratch.
The Texas case, which is fraught with complex procedural history, has become a football in the culture war, in which religious conservatives have tried to chip away at LGBT rights after the Supreme Court's seemingly definitive constitutional ruling on marriage.
The lawsuit, filed by two activists in 2013, attempts to repeal benefits for employees at the City of Houston who are married to a same-sex partner. But Friday's ruling did not decide whether the couples should or should not get those employment benefits. Nor did the Texas court declare that the US Supreme Court's marriage decision should be ignored in the landmark Obergefell v. Hodges case.
Rather, the 24-page opinion says that the activists behind the lawsuit can continue to help "the courts in fully exploring Obergefell’s reach and ramifications" by arguing their case in a lower court in the context of the Obergefell ruling.
Lawyers for the activists characterized Friday's decision as a triumph for their Constitutional right to be free from federal overreach.
"This is a huge win for those who believe in upholding the Tenth Amendment and standing for religious liberty," Jared Woodfill, a lawyer for the men, said in an email to BuzzFeed News. "The Texas Supreme Court made it clear that a federal decision is not binding on the state trial court."
But some LGBT activists dispute the notion that this ruling is inherently consequential. Houston employees are continuing to obtain these benefits, they note. But by keeping the case alive, they say, Texas state court prolongs questions over whether same-sex couples can truly enjoy equal protection under the law.
"In the short term, it means there is uncertainty about the fact that this issue has been settled," said Ken Upton, a lawyer for the group Lambda Legal, which filed briefs in the case to support the City of Houston and the rights of same-sex couples
"In the long term," he told BuzzFeed News, "I think it just prolongs the inevitable — that married same-sex couples will be treated equally by the government."
The City of Houston did not reply to a request to comment on what it would do next in the case, though an appeal to the US Supreme Court appears unlikely. Rather, the case may simply begin largely anew, this time with the parties making their arguments that acknowledge developments at the Supreme Court since 2013. Then the case could percolate up through the courts all over again.
"It just shouldn't take so long to get to that," Upton said.
The lawsuit began four years ago when Jack Pidgeon and Larry Hicks filed their complaint in state district court. They were challenging a policy by former Houston Mayor Annise Parker, a lesbian, who decreed that municipal employees who'd gotten married to a same-sex partner in another state were entitled to equal benefits as straight married employees. Marriage was not yet legal in Texas.
While their case wound through state courts, the US Supreme Court issued its national marriage equality ruling in Obergefell.
Although the men's case continued — they won a temporary restraining order in a lower court, the city appealed, the order was suspended, the Supreme Court issued the Obergefell ruling, an appeals court applied that decision — it eventually languished. In an effort to revive the dispute, conservative activists and state Republican officials pressured the Texas State Supreme Court to hear the case this year. And when the Texas court ruled on Friday, it noted that that since the lawsuit was first filed in 2013, the US Supreme Court has ruled in Obergefell. As such, the federal decision had to be factored in from the start — so they sent it back to district court.
In making their decision, the Texas court argued two other cases are relevant.
The first is Pavan, in which a same-sex couple argued they are entitled to have both parents automatically listed on a child's birth certificate. After losing in state court, the US Supreme Court affirmed their rights by citing Obergefell.
The second case is Masterpiece Cakeshop, in which a Colorado baker claims his religious objections allowed him to turn away a same-sex couple that wanted a wedding cake. The US Supreme Court agreed on Monday to hear his case.
Implying the Supreme Court’s actions in those cases are incongruous, the Texas court said, "The [US Supreme] Court’s decision to hear and consider Masterpiece Cakeshop illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address."
Woodfill — the lawyer for the plaintiffs — said that shows "the Texas Supreme Court made it clear that Obergefell should be limited in its scope."
And yet, the court's decision does not say that, exactly.
"We decline to instruct the trial court how to construe Obergefell on remand," the Friday opinion said. "We reverse the court of appeals’ judgment, vacate the trial court’s temporary injunction order, and remand this case to the trial court for further proceedings consistent with our judgment and this opinion."
Some progressive activists have taken this as both the court's rejection of equal benefits for same-sex couples and as a political message.
Dan Quinn, a spokesman for the Texas Freedom Network, told BuzzFeed News, "Keeping this Texas case alive is mostly a cynical effort by these justices to pander to pressure groups that insist that state and local governments keep treating LGBT people like second-class citizens or worse.”
Upton, the lawyer for Lambda Legal, worries the Texas Supreme Court could "open doors for other courts to undermine Obergefell and feel they have license to do so." But for now he sees it as mostly punting the decision and letting the issue linger.
“We are, right now, where we were before the first appeals — in front of a trial court and nothing has been decided.”