Texas Supreme Court hears gay mar­riage ben­e­fits case

Whether cities, coun­ties must in­sure gay work­ers’ spouses is at is­sue.

Austin American-Statesman - - METRO & STATE - By Chuck Lin­dell clin­dell@states­man.com

Seek­ing to stop gov­ern­ment-paid ben­e­fits to same-sex spouses, op­po­nents of gay mar­riage told the Texas Supreme Court on Wed­nes­day that there is no fun­da­men­tal right to in­sur­ance cov­er­age.

Although a land­mark 2015 de­ci­sion by the U.S. Supreme Court rec­og­nized that same-sex cou­ples have a right to wed, the rul­ing didn’t re­quire lower courts to grant sim­i­lar pro­tec­tion to in­sur­ance ben­e­fits for same-sex spouses, lawyer Jonathan Mitchell told the state’s high­est civil court.

The op­pos­ing lawyer, how­ever, dis­missed that ar­gu­ment as a red her­ring dur­ing oral ar­gu­ments Wed­nes­day in Austin.

While the U.S. Supreme Court de­ci­sion in Oberge­fell v. Hughes didn’t cre­ate a right to ben­e­fits, it rec­og­nized a far more im­por­tant and sweep­ing stan­dard: the right for same-sex mar­riages to be treated equally, lawyer Dou­glas Alexan­der told the state court.

“We are not ar­gu­ing that there is some fun­da­men­tal right to spousal ben­e­fits,” Alexan­der said. “What we are say­ing is ... that if you ex­tend spousal ben­e­fits to op­po­site-sex cou­ples, then un­der Oberge­fell you also have to ex­tend it to same-sex cou­ples. Not

be­cause there’s a fun­da­men­tal right to em­ployee ben­e­fits, but be­cause there’s a fun­da­men­tal right that both of those mar­riages be treated equally.”

Alexan­der also noted that the op­po­nents of gay mar­riage were seek­ing to stop spousal ben­e­fits of­fered by cities and coun­ties even though state agen­cies of­fer the same ben­e­fits to their work­ers.

But Mitchell said the state agen­cies were or­dered to pro­vide the spousal ben­e­fits by U.S. Dis­trict Judge Or­lando Gar­cia of San An­to­nio — the same fed­eral judge who ruled that the state’s gay mar­riage ban vi­o­lated the U.S. Supreme Court’s mar­riage rul­ing. Cities and coun­ties aren’t sub­ject to the same court or­der, Mitchell said.

The case arose out of then-Hous­ton Mayor An­nise Parker’s 2013 de­ci­sion to grant ben­e­fits to same-sex spouses of city em­ploy­ees who had mar­ried in other states.

Sev­eral taxpayers who op­pose gay mar­riage sued, and a state dis­trict judge is­sued an in­junc­tion bar­ring Hous­ton from ex­tend­ing the ben­e­fits, say­ing Parker vi­o­lated a state law and an amend­ment to the Texas Con­sti­tu­tion that pro­hib­ited same-sex mar­riage or any ac­tion rec­og­niz­ing a same­sex union.

While an ap­peal from Hous­ton was pend­ing, the U.S. Supreme Court is­sued its opin­ion that over­turned state bans on gay mar­riage, prompt­ing the ap­peals court to re­verse the in­junc­tion.

The group of taxpayers turned to the all-Repub­li­can Texas Supreme Court, which ini­tially re­jected their ap­peal in Septem­ber, with only one mem­ber, Jus­tice John Devine, dis­sent­ing.

A cam­paign by so­cial and re­li­gious con­ser­va­tives pro­duced a bar­rage of emails ask­ing the eight other jus­tices to re­con­sider or risk a back­lash in the next GOP pri­mary. Lead­ing Repub­li­cans joined the call, and in Jan­uary the court is­sued a rarely granted mo­tion to re­hear the case.

A rul­ing is ex­pected by the end of June.

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