After coming out on the losing end of a U.S. Supreme Court decision legalizing same-sex marriage, Texas Republican leaders are now looking to the Texas Supreme Court to narrow the scope of that landmark ruling.
Gov. Greg Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton filed an amicus brief Thursday with the Texas Supreme Court urging the all-Republican court to reconsider a Houston case challenging the city’s benefits policy for married same-sex couples. It appears they’ve set their eyes on the Houston case as a way to limit the effect of the high court’s ruling.
The Texas Supreme Court has already had a say in the case challenging Houston's benefits policy, which was extended to same-sex spouses of city employees. In a 8-1 ruling, the court in September declined to take up the case, letting stand a lower court decision that upheld the benefits for same-sex couples.
In asking the Texas Supreme Court to reopen the Houston case, state leaders in their brief also urged the court to clarify that the case that legalized same-sex marriage, Obergefell v. Hodges, does not “bind state courts to resolve all other claims in favor of the right to same-sex marriage.”
In Obergefell, the U.S. Supreme Court ruled in 2015 that marriages between couples of the same sex cannot be prohibited by states, overriding Texas’ long-standing ban on same-sex marriage.
Abbott, Patrick and Paxton in their brief argue that Obergefell does not include a “command” that public employers “take steps beyond recognizing same-sex marriage — steps like subsidizing same-sex marriages (through the allocation of employee benefits) on the same terms as traditional marriages.”
Lawyers for Houston have argued that conservatives have no legal avenue to pursue in the case because the city’s policy is protected by the Obergefell ruling. Additionally, state agencies also extended benefits to spouses of married gay and lesbian employees after the high court’s ruling.
And almost a month after the ruling, Paxton quietly conceded a case against the federal government over medical leave benefits for certain same-sex couples.
Now, Paxton, the governor and and lieutenant governor are suggesting to the Texas Supreme Court that it should “remind” lower courts that all “disputes involved in the right to same-sex marriage have not been resolved.”
“It it not the duty of the state courts to divine broad principles from Supreme Court opinions and to extrapolate them to new contexts,” the Republicans wrote. “Rather, state courts must be meticulous in examining each new claimed right and determining whether and to what extent it must be expanded in new ways.”
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