In the following cases, state Supreme Courts have ignored the ruling in Obergefell v. Hodges, which holds that the government may not treat same-sex couples differently from opposite-sex couples. Essentially, these states are undermining same-sex marriage under the guise of “religious liberty.”
By Laura Morgan, Family Lawyer and Consultant
Pavan v. Smith, 582 U. S. ____, 137 S.Ct. 2075 (2017). 1
The Facts of the Case
In this case, Leah and Jana Jacobs and Terrah and Marisa Pavan, both same-sex couples, were married in Iowa in 2010, and in New Hampshire in 2011, respectively. Leigh and Terrah each gave birth to a child in Arkansas in 2015, and each couple completed the requisite paperwork for birth certificates for the newborns listing both spouses as parents: Leigh and Jana in one case, and Terrah and Marisa in the other. Citing a provision of Arkansas law, Ark. Code 20-18-401, the Arkansas Department of Health issued certificates bearing only the birth mother’s name.
The Jacobses and Pavans filed a lawsuit in Arkansas state court against the director of the Arkansas Department of Health seeking a declaration that the State’s birth-certificate law violates the constitution. The trial court agreed with the couples, holding that the state statute is inconsistent with the Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015). The Arkansas Supreme Court reversed the trial court.
The United States Supreme Court’s Opinion
The United States Supreme Court held that a state law that precludes same-sex couples from having both spouses’ names on a birth certificate violates the Due Process Clause and the Equal Protection Clause under Obergefell v. Hodges. In a per curiam opinion, the Court held that the rule functionally deprives married same-sex couples the same rights to be listed on their children’s birth certificates as married opposite-sex couples have. Not being listed on a child’s birth certificate can significantly affect a parent’s ability to participate in transactions that require showing proof of parentage. Therefore, this rule unconstitutionally discriminates against married same-sex couples by denying them access to the same rights, responsibilities, and benefits that married opposite-sex couples have.
The Supreme Court made the ruling it did because the Arkansas law violated a key tenet of Obergefell v. Hodges: “the Constitution entitles same-sex couples to civil marriage on the same terms and conditions as opposite-sex couples.” This is likely why Chief Justice John Roberts joined the majority opinion in Pavan v. Smith, even after dissenting in Obergefell v. Hodges. See also McLaughlin v. Jones in and for County of Pima, 243 Ariz. 29, 401 P.3d 492 (2017) (statutory marital paternity presumption cannot be restricted to only opposite-sex couples).
The Texas Supreme Court Defies the United States Supreme Court
Despite the decision in Pavan, which was basically the Supreme Court saying “we meant it when we said ALL the rights of opposite-sex couples,” the Texas Supreme Court decided Pidgeon v. Turner, No. 15-0688, 2017 WL 2829350 (Tex. Supreme Court, June 30, 2017) 2.
Texas law prohibits same-sex couples from receiving spousal benefits for government workers. After the United States Supreme Court struck down the federal same-sex marriage ban in 2013, the Houston city attorney advised then-Mayor Annise Parker that this prohibition ran afoul of the Constitution. While the Texas law remains on the books, Parker mandated that it no longer be enforced in Houston, ordering the city to “extend benefits” to government employees’ same-sex spouses who’d been legally married elsewhere. Two taxpayers, Jack Pidgeon and Larry Hicks, challenged Parker’s directive shortly thereafter, arguing that by granting benefits to same-sex couples, Houston was “expending significant public funds on an illegal activity.”
A state trial court agreed and blocked the new policy. While the city appealed that decision, the Supreme Court issued Obergefell in June 2015, invalidating state-level same-sex marriage bans. The 5th U.S. Circuit Court of Appeals applied Obergefell to Texas several days later in De Leon v. Abbott, striking down the state’s bar on same-sex marriage. In light of these decisions, a state appeals court reversed the block on same-sex benefits in Houston and sent the case back down to the trial court “for proceedings consistent with Obergefell and De Leon.” Pidgeon and Hicks appealed the ruling to the state Supreme Court, which initially refused to take the case. After a group of high-profile Republicans urged the justices to reconsider, however, the court reversed course and heard arguments in March.
The Texas Supreme Court held that Obergefell “did not address and resolve” the “specific issue” of state spousal benefits. Therefore, the state appeals court erred in ordering the trial court to resolve the case “consistent with Obergefell and De Leon.” Instead, the Texas Supreme Court insisted, the trial court must settle the issue itself – keeping in mind that Obergefell “did not hold that states must provide the same publicly funded benefits to all married persons.”
The Texas Supreme Court acknowledged Pavan but noted that the justices also agreed to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, a constitutional challenge to LGBTQ non-discrimination laws. This decision “to hear and consider Masterpiece Cakeshop,” the Texas Supreme Court insisted, “illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.”
The Texas Supreme Court’s Opinion Is Infirm
This decision is nonsense. Obergefell declared that the Constitution grants same-sex couples “the constellation” of “rights, benefits, and responsibilities” that “the states have linked to marriage.” Its holding was not limited to marriage licensing. The Arkansas Supreme Court learned this lesson when it attempted to keep same-sex parents off their children’s birth certificates. Nonetheless, on December 4, 2017, the Texas Supreme Court let stand the decision in Pidgeon, clearly undermining Pavan.
As Mark Joseph Stern of Slate notes, “[The decision in Pavan] is bizarre… Masterpiece Cakeshop asks whether businesses have a First Amendment right to turn away same-sex couples. Obergefell and Pavan hold that the government may not treat same-sex couples differently from opposite-sex couples. No matter how the court rules in Masterpiece Cakeshop, its decision cannot abridge the rights and benefits that a state must afford to same-sex couples… The Texas Supreme Court essentially ignores this command in an insidious effort to preserve vestiges of the pre-Obergefell regime. Its gambit will almost certainly fail in light of Pavan.”
The Supreme Court Retreats from Obergefell and Pavan
In 2018, the Supreme Court continues to undermine same-sex marriage under the guise of “religious liberty.” The High Court declined to hear Barber v. Bryant, No. 16-60477 (5th Cir. 2017) 3, an appeal from the Fifth Circuit concerning a challenge to a Mississippi law that allows businesses to discriminate against same-sex couples. Mississippi HB 1523 allows citizens, small businesses, government employees, and charities to discriminate against same-sex couples if they believe that marriage is between one man and one woman.
A New Era of Anti-LGBTQ Legislation
Perhaps emboldened by the Supreme Court’s unwillingness to enforce Obergefell and Pavan, and its willingness to cater to the religious right, at least 129 anti-LGBTQ bills were introduced
across 30 states during the 2017 state legislative season, according to a new report published by LGBTQ advocacy group Human Rights Campaign (HRC). Twelve of these bills – which range from adoption laws to “religious freedom” legislation – became law.
One of the more insane proposals comes out of Missouri. Missouri still has a law on the books defining marriage as a union between a man and a woman. This new bill HB 1434, according to sponsors, would completely nullify marriage in the public arena for everyone. Instead, the term “marriage” would apply only to unions performed by religious institutions, while all state-recognized unions – hereto referred to as marriage – would undergo reclassification as “domestic unions.” Of course, passage of the bill would create total chaos within Missouri as couples – gay and straight alike – would have to reclassify themselves as “domestically unionized” on everything from their taxes to the census. Needless to say, that could prove very problematic when applying for marriage tax credits come federal tax time.
The “constellation of rights” seems to be dead.
Laura W. Morgan is the owner/operator of Family Law Consulting, which provides research and writing services to family law attorneys nationwide. She is the author of numerous law review articles and two treatises: Child Support Guidelines: Interpretation and Application (2d ed., Wolters Kluwer, 2012), and Attacking and Defending Marital Agreements (2d ed., ABA, 2014). www.famlawconsult.com
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