Implementing Obergefell: An Addendum

The March 1 oral argument was an astounding anti-climax to a manufactured drama

In a prior post, I discussed the Pidgeon v. Turner case, now pending before the Texas Supreme Court, involving a taxpayer challenge to same-sex spousal benefits.  Oral argument was held on March 1.  The taxpayers challenging the city of Houston’s policy of granting same-sex spousal benefits to city employees were represented at oral argument by Jonathan Mitchell, a former Scalia clerk, former Texas solicitor general, and now a visiting professor at Stanford law school.  The city of Houston was represented by Douglas Alexander, a leading appellate practitioner in an Austin law firm whose partners include former Texas Chief Justice Wallace Jefferson.  The oral argument was superb, and both counsel fielded numerous questions from the fully-engaged justices.

The issue in Pidgeon is whether Texas’s state law denying recognition to same-sex marriage, including any “right or claim to any … benefit” related thereto,[1]  prevents a political subdivision of the state, such as the city of Houston, from voluntarily providing same-sex spousal benefits to its employees, notwithstanding Obergefell.[2]   In Pidgeon, a Texas trial court ruling issued prior to Obergefell had enjoined the provision of such benefits, and the city appealed to the intermediate court of appeals.  While the appeal was pending, the U.S. Supreme Court decided Obergefell, prompting the court of appeals to reverse the injunction and remand the case back to the trial court.  The plaintiff-taxpayers sought discretionary review by the Texas Supreme Court, which was initially denied but then granted following a petition for rehearing.

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