Opin­ions on gay mar­riage pour in

Ad­vice abounds as Texas Supreme Court pre­pares to hear case.

Austin American-Statesman - - FRONT PAGE - By Chuck Lin­dell clin­dell@states­man.com

As its judges pre­pare to hear ar­gu­ments on ef­forts to limit the fed­eral rul­ing al­low­ing gay mar­riage, the Texas Supreme Court has re­ceived a flurry of un­so­licited ad­vice from politi­cians, le­gal schol­ars, re­li­gious groups and ac­tivists.

Even ev­ery­day cit­i­zens who rarely, if ever, come into con­tact with the state’s high­est civil court have weighed in by email, let­ter and post­card — drawn to a cause that many thought was de­cided when the U.S. Supreme Court tossed out gay mar­riage bans in 2015, rul­ing that same-sex cou­ples were en­ti­tled to “equal dig­nity in the eyes of the law.”

Op­po­nents of same-sex mar­riage, how­ever, see an op­por­tu­nity to limit the im­pact of that gay mar­riage rul­ing with a case that in­volves a long-run­ning law­suit seek­ing to abol­ish em­ployee ben­e­fits the city of Hous­ton pro­vides to mar­ried same-sex cou­ples.

Repub­li­can lead­ers, re­li­gious groups and so­cial con­ser­va­tives are push­ing the Texas court to find that there is no fun­da­men­tal right to spousal ben-

efits, even if there is a con­sti­tu­tional right to same-sex mar­riage.

On the other side, law pro­fes­sors, ac­tivists and oth­ers ar­gue that the Texas court has no wig­gle room be­cause the U.S. Supreme Court stated, clearly and em­phat­i­cally, that same-sex cou­ples have a right to mar­riage on the same terms and con­di­tions as op­po­site-sex cou­ples.

Oral ar­gu­ments on the Hous­ton ben­e­fits case will be heard Wed­nes­day morn­ing at the Texas Supreme Court in Austin, with a rul­ing ex­pected be­fore the end of June.

In prepa­ra­tion for the ar­gu­ments, the court re­ceived a spate of am­i­cus briefs — also known as friend-of-the­court briefs be­cause the doc­u­ments of­fer in­sight from peo­ple in­ter­ested in, or likely to be af­fected by, a case that they’re not part of.

There also were per­spec­tives of­fered through less tra­di­tional means, such as a let­ter from Teresa Chin of Austin, who wrote about her mom’s es­cape from an abu­sive hus­band, the for­tu­itous ar­rival of a same-sex spouse and a cancer scare sur­vived be­cause her mother was able to join her spouse’s in­sur­ance plan.

“So to­day I beg of you, please up­hold my mom’s rights. Please don’t take her in­sur­ance,” Chin wrote, in­clud­ing pho­tos of her mom and step­mom.

The court also re­ceived a dozen more tra­di­tional am­i­cus briefs, in­clud­ing:

Twenty-six Texas law pro­fes­sors ar­gued that the U.S. Supreme Court didn’t merely give same-sex cou­ples the right to ac­quire a mar­riage cer­tifi­cate, it re­quired their mar­riages to be treated as equal to op­po­site-sex unions. Cut­ting off ben­e­fits to one type of cou­ple would vi­o­late the court’s cen­tral hold­ing, they said.

“Same-sex cou­ples can­not be treated by govern­ment as if they are par­ties to a ‘sec­ond-tier mar­riage,’” the pro­fes­sors wrote.

Three state Repub­li­can lead­ers — Gov. Greg Ab­bott, Lt. Gov. Dan Pa­trick and At­tor­ney Gen­eral Ken Pax­ton — ar­gued that the chal­lenge to Hous­ton’s ben­e­fits pol­icy raised dif­fer­ent con­sti­tu­tional ques­tions than were de­cided by the U.S. Supreme Court’s rul­ing in Oberge­fell v. Hodges, which over­turned state bans on same-sex mar­riage.

“This court should take this op­por­tu­nity to re­mind the lower courts that all dis­putes in­volv­ing the right to same-sex mar­riage have not been re­solved,” they wrote.

The Anti-Defama­tion League, which fights anti-Semitism and other types of prej­u­dice, said the chal­lenge to Hous­ton’s spousal ben­e­fits is mo­ti­vated by “re­li­gious- and moral­ity-based dis­ap­proval of same­sex mar­riage” that pro­vides no le­gal sup­port for the plain­tiffs’ case.

“Re­li­gious lib­erty should op­er­ate as a shield, not as a sword to dis­crim­i­nate against mem­bers of a dis­ad­van­taged mi­nor­ity group,” the An­tiDefama­tion League wrote.

More than 70 Repub­li­can law­mak­ers, con­ser­va­tive lead­ers and Chris­tian pas­tors urged the court to “re­store the rule of law.”

“This court has the op­por­tu­nity to di­min­ish fed­eral tyranny and re-es­tab­lish Texas sovereignty,” they wrote. “While the U.S. Supreme Court did pur­port­edly cre­ate a new con­sti­tu­tional right to en­ter into same-sex mar­riage, noth­ing in that rul­ing com­pelled the tax­pay­ers of Texas to pay for a vast ar­ray of ben­e­fits for same­sex spouses.”

The two cou­ples who chal­lenged the Texas ban on gay mar­riage, in­clud­ing Cleopa­tra DeLeon and Ni­cole Dimet­man of Austin, ar­gued that the law­suit seeks to re­turn Texas to the days of le­gal dis­crim­i­na­tion against same-sex cou­ples.

“Deny­ing ben­e­fits to mar­ried same-sex cou­ples while pro­vid­ing those ben­e­fits to mar­ried op­po­site-sex cou­ples is un­con­sti­tu­tional. It is not pos­si­ble — in good faith — to con­strue Oberge­fell any other way,” they wrote.

Two Chris­tian groups, the Foun­da­tion for Moral Law and the In­sti­tute for Cre­ation Re­search, urged the Texas court to go for broke by declar­ing the fed­eral rul­ing on gay mar­riage to be an il­le­git­i­mate act that need not be fol­lowed.

“Needless to say, the 14th Amend­ment, de­signed to pro­tect the civil rights of freed slaves, was not in­tended to cre­ate a mock form of mar­riage to le­git­imize per­ver­sity and in the process tram­ple on the rights of the states to self-govern­ment,” the or­ga­ni­za­tions wrote.

RODOLFO GON­ZA­LEZ / AUSTIN AMER­I­CAN-STATES­MAN 2015

Jim Oberge­fell, the named plain­tiff in the Oberge­fell v. Hodges case that le­gal­ized same-sex mar­riage na­tion­wide (third from right), holds hands with Chuck Smith, Ni­cole Dimet­man, Cleopa­tra DeLeon, Chad Grif­fin, Mark Phariss and Vic­tor Holmes at the State Capi­tol in Austin in June 2015.

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