Texas Supreme Court hears gay marriage benefits case

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

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.