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Pidgeon v. Mayor Sylvester Turner And City of Houston

Supreme Court of Texas

June 30, 2017

Jack Pidgeon and Larry Hicks, Petitioners,
Mayor Sylvester Turner and City of Houston, Respondents

          Argued March 1, 2017

         On Petition for Review from the Court of Appeals for the Fourteenth District of Texas


          Jeffrey S. Boyd Justice.

         The trial court denied the City of Houston's and its Mayor's pleas to the jurisdiction and issued a temporary injunction prohibiting them from "furnishing benefits to persons who were married in other jurisdictions to City employees of the same sex." While their interlocutory appeal was pending in the court of appeals, the United States Supreme Court held that states may not "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." Obergefell v. Hodges, ___ U.S. ___, 135 S.Ct. 2584, 2605 (2015). The court of appeals then reversed the temporary injunction and remanded the case to the trial court for further proceedings.

         Petitioners Jack Pidgeon and Larry Hicks contend that the court's opinion and judgment impose-or at least can be read to impose-greater restrictions on remand than Obergefell and this Court's precedent require. We agree. We reverse the court of appeals' judgment, vacate the trial court's orders, and remand the case to the trial court for further proceedings consistent with our opinion and judgment.

         I. Background

         The "annals of human history reveal the transcendent importance of marriage." Obergefell, 135 S.Ct. at 2593-94. "Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together." Id. at 2594. For thousands of years, both the role of marriage and its importance to society were founded on the "understanding that marriage is a union between two persons of the opposite sex." Id. Until only recently, "marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization." United States v. Windsor, ___ U.S. ___, 133 S.Ct. 2675, 2689 (2013).

         While "most people" have shared that view, others have not. In the early 1970s, for example, two men obtained a Texas marriage license when one of them appeared before the county clerk dressed as a woman. See James W. Harper & George M. Clifton, Comment, Heterosexuality; A Prerequisite to Marriage in Texas?, 14 S. Tex. L.J. 220, 220 (1972-73). In response, the Texas Legislature amended the Texas Family Code to expressly provide that a marriage license "may not be issued for the marriage of persons of the same sex." See Act of June 15, 1973, 63rd Leg., R.S., ch. 577, § 1, 1973 Tex. Gen. Laws 1596, 1596-97 (amending former Texas Family Code section 1.01). Texas thus became the second state in the Union[1] to adopt what is often referred to as a "defense of marriage act" (DOMA).[2]

         In response to early lawsuits, courts throughout the United States consistently rejected legal challenges to the historical understanding of marriage.[3] Beginning in the 1990s, many other states and the federal government[4] enacted DOMAs to amend their statutes[5]-and in some states, their constitutions[6]-to preserve the traditional view of marriage. Around the same time, however, other states' courts became more receptive to legal and constitutional challenges to laws restricting marriage to the historical view.[7] Soon, some state legislatures began amending their laws to expressly permit and recognize same-sex marriages, and more courts began invalidating laws that did not.[8]

         In 2013, the United States Supreme Court held in a 5-4 decision that the federal DOMA's provision defining the terms "marriage" and "spouse" to apply only to opposite-sex couples violates "basic due process and equal protection principles applicable to the Federal Government." Windsor, 133 S.Ct. at 2693 (citing U.S. Const. amend. V; Bolling v. Sharpe, 347 U.S. 497 (1954)). The Court noted that by then, twelve states and the District of Columbia had "decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons." Id. at 2689.

         In the Court's view, the federal DOMA definitions did not merely preserve the traditional view of marriage. Instead, their "avowed purpose and practical effect [were] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of [the] States." Id. at 2693. Concluding that "no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom [a state], by its marriage laws, sought to protect in personhood and dignity, " the Court found the federal definitions unconstitutional. Id. at 2696.

         Based on Windsor, the City of Houston city attorney advised then-Mayor Annise Parker that the City "may extend benefits" to City employees' same-sex spouses who were legally married in other states "on the same terms it extends benefits to heterosexual spouses." In the attorney's opinion, refusing to provide such benefits would "be unconstitutional." Relying on this advice, on November 19, 2013, Mayor Parker sent a memo to the City's human-resources director "directing that same-sex spouses of employees who have been legally married in another jurisdiction be afforded the same benefits as spouses of a heterosexual marriage." The City began offering those benefits soon after the Mayor issued her directive.

         A month later, on December 13, 2013, Pidgeon and Hicks[9] filed suit against the City and the Mayor[10] in state court (Pidgeon I), challenging the Mayor's directive and the City's provision of benefits pursuant to that directive. The Mayor removed Pidgeon I to federal court, which ultimately remanded it back to state court. But by then, the state court had apparently dismissed the suit for want of prosecution. Instead of challenging the dismissal of Pidgeon I, Pidgeon and Hicks reasserted their claims by filing this suit (Pidgeon II) on October 22, 2014.

         Pidgeon and Hicks alleged that they are Houston taxpayers and qualified voters, that the City is "expending significant public funds on an illegal activity, " and that the Mayor's directive authorizing those expenditures violates Texas's and the City's DOMAs. Specifically, prior to Windsor, the City had amended its charter, and the State had amended the Texas Family Code and the Texas Constitution, to more forcefully preserve the traditional view of marriage:

• In 2001, the City's voters signed and then approved a petition to amend the City's charter to provide that, except "as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children." City of Houston Charter art. II, § 22. Although this language did not expressly refer to same-sex relationships, the voters' intent to deny tax-funded employment benefits to same-sex partners was undisputed, as reflected in the title the City itself gave to the new provision: "Denial of Benefits to Same-Sex Partners and Related Matters."[11]
• In 2003, the Texas Legislature amended the Family Code to expressly provide that (1) any "marriage between persons of the same sex . . . is contrary to the public policy of this state and is void in this state"; and (2) the state or any agency or political subdivision "may not give effect to" any "right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex . . . in this state or in any other jurisdiction, " Tex. Fam. Code § 6.204(b), (c)(2) (2003). See Act of May 14, 2003, 78th Leg., R.S., ch. 124, § 1, 2003 Tex. Sess. Law Serv. 124.
• In 2005, two-thirds of the Texas Senate and House approved a joint resolution to amend the Texas Constitution to expressly provide that:
(a) Marriage in this state shall consist only of the union of one man and one woman[, and]
(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.
Act effective Nov. 11, 2005, 79th Leg., R.S., Tex. Gen. Laws 5409. Later that year, over 76% of Texas voters approved the proposition.[12] See Tex. Const. art. I, § 32.

         Pidgeon alleged that these DOMAs remained valid and enforceable despite Windsor because Windsor addressed only the federal DOMA and its impact on persons married in states that had elected to allow same-sex marriages. In Pidgeon's view, Windsor merely required the federal government to acknowledge marriages the various states may recognize; it did not require Texas or any other state to license same-sex marriages or recognize same-sex marriages performed in other states. Pidgeon sought unspecified actual damages as well as temporary and permanent injunctive relief prohibiting the City from providing benefits to same-sex spouses of employees married in other jurisdictions.

         The Mayor and City filed pleas to the jurisdiction asserting governmental immunity and challenging Pidgeon's standing to assert his claims.[13] The trial court denied the pleas and granted Pidgeon's request for a temporary injunction prohibiting the Mayor "from furnishing benefits to persons who were married in other jurisdictions to City employees of the same sex." The Mayor immediately filed this interlocutory appeal challenging both the order denying the pleas to the jurisdiction and the order granting the temporary injunction.

         Meanwhile, courts across the country were hearing other lawsuits challenging the constitutionality of various state DOMAs. In Obergefell, the United States Supreme Court consolidated and agreed to hear five of those cases, in which the plaintiffs alleged that their states' laws denying same-sex couples the right to marry or prohibiting recognition of the legal validity of a same-sex marriage from another state violate the federal Constitution. 135 S.Ct. at 2593. On June 26, 2015-while this case (Pidgeon II) remained pending on interlocutory appeal before the Texas court of appeals-the United States Supreme Court issued its decision in Obergefell. Id. at 2608.

         In another 5-4 decision, the Court concluded in Obergefell that the state DOMAs at issue violate "the Due Process and Equal Protection Clauses of the Fourteenth Amendment." Id. at 2604. Based on that conclusion, the Court held that the states may not "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples, " and may not "refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Id. at 2605.

         The Mayor then filed a supplemental brief in the court of appeals, arguing that Obergefell required the court to reverse the injunction. In response, Pidgeon argued that even if Obergefell requires Texas to license and recognize same-sex marriages, it does not require "states to pay taxpayer-funded benefits to same-sex relationships." According to Pidgeon, Obergefell did not resolve his claims because federal courts cannot "commandeer state spending decisions."

         On July 28, 2015, the court of appeals reversed the trial court's temporary injunction. 477 S.W.3d 353, 355 (Tex. App.-Houston [14th Dist.] 2015). In a brief per curiam opinion, the court recited Obergefell's holdings that "same sex couples may exercise their fundamental right to marry in all States, " and that "there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character." Id. at 354 (quoting Obergefell, 135 S.Ct. at 2604-05, 2607-08). Noting "the substantial change in the law regarding same-sex marriage since the temporary injunction was signed, " the ...

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