Editorial: Texas AG won’t have final word on cities’ same-sex benefit plans

Posted Sunday, May. 05, 2013  comments  Print Reprints
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Texas Attorney General Greg Abbott says a court “is likely to conclude” that cities extending workers the same benefits whether they’re in opposite-sex or same-sex relationships are recognizing partnerships so “similar to marriage” that they’re violating the state Constitution.

State Sen. Dan Patrick, a Houston Republican who asked for Abbott’s legal opinion on the matter, says the April 29 ruling makes clear that cities, counties and school districts “cannot subvert the will of Texans” through same-sex benefits.

Not so fast.

Abbott was providing a legal interpretation in answer to a lawmaker’s question. While the opinion carries some weight coming from the state’s top legal officer and is an educated prediction, it’s still supposition, not certainty, and has no binding effect.

Several entities around Texas, including the cities of Fort Worth, Austin, El Paso, San Antonio and Dallas; Travis and El Paso counties; and the Pflugerville school district, allow same-sex partners of employees to sign up for benefits, primarily health insurance, if they meet specific criteria.

In 2005, voters approved a constitutional amendment that said, “this state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Even so, the Fort Worth City Council decided to allow city employees to add their domestic partners to their health and dental insurance plans starting in 2011. The city pays part of the health premiums but not dental. About 30 partners have accessed some part of the program, the city says.

Abbott said that by offering benefits, local governments had recognized the legality of domestic partnerships similar to marriage. But no Texas court has definitely ruled on whether those plans are consistent with, or contrary to, the state constitution. It would take a court decision as a result of litigation to make that determination.

A gaggle of Texas House members, including five Tarrant County Republicans, is pushing House Bill 1568, an ill-conceived attempt at bullying school districts into never including domestic partners. As filed by Rep. Drew Springer, R-Muenster, the bill would have cut 7.5 percent of state funding for school districts that offered benefits to nondependents.

The version approved by the House Public Education Committee in April would shut down any school district that the attorney general determines “knowingly violated a provision of the Texas Constitution.”

So much for being champions of local control.

It’s important to note that, during legislative debate in 2005, then-Rep. Warren Chisum, who sponsored the marriage amendment, said it wouldn’t negate whatever contracts cities wanted to make with their workers. Abbott’s opinion even quotes Chisum: “It does not stop them from providing health benefits to same-sex partners. It is not intended to do that.”

Abbott, though, says Chisum only meant that the amendment didn’t address what political subdivisions could do. That, the AG should recognize, is not the plain meaning of Chisum’s words.

The assumption is that Texas’ constitutional amendment on marriage — referred to as Article I, Section 32 — is itself consistent with the U.S. Constitution. But no court has ruled definitively on that, either.

The U.S. Supreme Court, however, is weighing two cases that could have major implications for Texas: One involves the federal Defense of Marriage Act, the other, California’s constitutional definition of marriage.

“Depending on the outcome of those cases,” Abbott helpfully notes, “the Court’s decision could call into question the enforceability of Article I, Section 32 under the United States Constitution.”

Local government officials are studying the AG’s opinion, and Fort Worth lawyers are expected to brief city council members Tuesday. But clearly, Abbott’s interpretation won’t be the final word.

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