Wednesday, July 5, 2017

Pidgeon v. Turner: Is it constitutional for a state to deny same-sex couples benefits as long as it licenses and recognizes same-sex marriages?

On June 30, 2017, the Texas Supreme Court issued a troubling decision in Pidgeon v. Turner, refusing to acknowledge obvious constitutional rights of married same-sex couples. Bizarrely, the court concluded that, although states and local governments are required by the U.S. Constitution to recognize and license same-sex marriages, it does not follow that they are also required to provide same-sex couples with the same benefits that they provide to opposite-sex couples. Thus, in Pidgeon, the court left open the possibility that the City of Houston may not be required to provide the same spousal benefits to married gay and lesbian employees that it provides to married heterosexual employees.

In recognizing a fundamental right under the U.S. Constitution to same-sex marriage, however, the U.S. Supreme Court noted in Obergefell v. Hodges that marriage is associated with a wide range of "governmental rights, benefits, and responsibilities," including "taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules."

Arguing for recognition of same-sex marriage, LGBT advocates refused to settle for civil unions, which can provide all of the governmental rights and benefits associated with marriage, though under another name. When it comes to marriage, a rose by any other name does not smell as sweet. As recognized in Obergefell, relegating same-sex couples to civil unions denies them the dignity and autonomy that are granted to opposite-sex couples. 

In Pidgeon, the Texas Supreme Court has turned the logic of Obergefell on its head. If gay men and lesbians cannot be denied the intangible benefits that flow from the term "marriage," then surely they cannot be denied the tangible benefits that flow from the governmental recognition of a marriage. 

Thus, on June 26, 2017, in Pavan v. Smith, the U.S. Supreme Court took the unusual step of summarily reversing a lower court decision. The Arkansas Supreme Court had upheld a law that denied the female spouse of a mother who gives birth the same right to have her name entered on the child's birth certificate as a male spouse of a mother who gives birth. As explained by the U.S. Supreme Court, this distinction is unconstitutional because it "infringes Obergefell's commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage.'" As Pavan and Obergefell make crystal clear, a state or city is free to decide the benefits that flow from marital status, but once it makes that decision, it may not differentiate between same-sex couples and opposite-sex couples.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.