Equality On Trial

Could this week’s Texas decision make its way to the Supreme Court?

December 19, 2013

By Jacob Combs

LGBT Legal Cases Marriage equality

Yesterday, we reported on a court decision by a state judge in Texas blocking a move by Houston to provide domestic partnership benefits to same-sex couples.

Democratic Governor Annise Parker this November announced that the city would extend such benefits in order to conform to the U.S. Supreme Court’s June decision invalidating Section 3 of DOMA, despite the fact that a voter-approved statue holding that Houston “shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children.”

It does seem likely that Judge Lisa Millard will rule against Houston’s actions, both because of the city statute and a 2005 state constitutional amendment approved by voters holding that “[t]his state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”  But as Ian Millhiser of Think Progress points out, such laws are likely to meet a foe that can’t beat–the U.S. Constitution:

Years before last June’s decision striking the unconstitutional Defense of Marriage Act, the Supreme Court held in Romer v. Evans that a Colorado amendment forbidding gay rights legislation violates the Constitution. “[L]aws singling out a certain class of citizens for disfavored legal status or general hardships are rare,” Romer explained, and “[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.”

Texas’s anti-gay amendment can be distinguished from the amendment at issue in Romerbecause it is somewhat narrower — the Colorado amendment was a sweeping ban on pro-gay laws while the Texas amendment forbids only marriage equality or providing rights to same-sex couples that are “similar to marriage.” Nevertheless, it would hardly be a stretch for the justices to apply Romer to Texas and the 28 other states that enacted anti-gay constitutional amendments restricting marriage equality.

While there are five justices on the Supreme Court with fairly consistent pro-gay records, several of these same justices have indicated that they prefer an incremental approach to a sweeping decision extending the blessings of liberty to gay couples nationwide. In the lead up to the DOMA decision, Justice Ruth Bader Ginsburg pointedly criticized Roe v. Wade for moving “too far, too fast.” During oral arguments on the fate of California’s anti-gay Proposition 8, Justice Sonia Sotomayor asked if there was any way to limit a pro-gay decision to just California. Striking Texas’ anti-gay amendment — and similar bans on marriage equality throughout the country — is a logical next incremental step now that DOMA is no longer good law. While applying Romer to states like Texas would do nothing for same-sex couples whose state or local legislature is hostile to gay rights, it would also mean that pro-gay officials like Mayor Parker would be as free to push equality as they are to enact any other policy.

Of course, when the U.S. Supreme Court ends up striking down marriage equality bans like Texas’s, its decision will likely be based on a combination of legal reasonings from Romer, Lawrence v. Texas and U.S. v. Windsor, this summer’s DOMA decision.  Still, decisions like Miller’s lay the groundwork for further legal challenges at the state and federal appellate levels before the eventual lawsuit that will make its way to our country’s highest court.

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