In the past several years, the issue of same-sex marriage has been a hot litigation topic before many courts, including the U.S. Supreme Court. The high court's decision in Obergefell v. Hodges laid to rest the ability of states to "exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." With the Supreme Court finding state Defense of Marriage Acts (DOMAs) to be unconstitutional, many legal experts concluded that employee benefits could no longer differentiate based on the gender of the spouse. However, the Texas Supreme Court recently refrained from declaring that same-sex spouses must have access to the same employee benefits as opposite-sex spouses.
As recited by the Texas Supreme Court, the state's version of DOMA first arose in the early 1970s, when two men obtained a marriage license by one of them dressing as a woman. In 1973, Texas became the second U.S. state to adopt a law defining marriage as being between members of the opposite sex. Moving forward 40 years, the U.S. Supreme Court in United States v. Windsor held that the federal DOMA was unconstitutional.
Based on the rationale in Windsor, the city attorney for the mayor of Houston advised 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." Based on that advice, the Houston human resources department was directed to begin providing benefits to same-sex spouses.
The following month, two Houston taxpayers—Jack Pidgeon and Larry Hicks—sued the city of Houston, alleging that the city was "expending significant public resources on an illegal activity" in violation of the state and city DOMAs. An injunction was issued, but it was reversed on an appeal in a decision that followed the Obergefell decision. The appeals court sent the case back to the trial court. Pidgeon and Hicks appealed that decision and argued, in part, that the Supreme Court decision in Obergefell should be "narrowly construed."
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The city of Houston, in contrast, argued that the Obergefell decision holds that same-sex couples are entitled to marry and enjoy all of the benefits of marriage. The Texas Supreme Court declined to decide the issue. In so doing, it found that there is an open question as to whether Obergefell—which by its express terms held that states must license and recognize same-sex marriages to the extent they do opposite-sex marriages—compels a conclusion that tax-funded employee benefits must also be afforded on an equal basis. The state's highest court concluded that the trial court must consider the issue in light of Obergefell but is not compelled to reach the conclusion that had been urged by the city of Houston.
As a result, both parties were directed to return to the trial court to litigate the question of whether a state is required, under Obergefell, to provide employment benefits to same-sex spouses in the same manner as provided to opposite-sex spouses.
Pidgeon v. Turner, Texas Sup. Ct., No. 15-0688 (June 30, 2017).
Professional Pointer: State and local laws continue to fill the gaps that states on both sides of the political spectrum view as existing under federal law. Human resources professionals should take care to review all applicable laws when making policies and decisions affecting the workplace.
Scott M. Wich is an attorney with Clifton Budd & DeMaria LLP in New York City.
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