Pidgeon v. Turner

• Decision Date: 30 June 2017
• Docket Number: No. 15-0688,15-0688
• Citation: 538 S.W.3d 73
• Parties: Jack PIDGEON and Larry Hicks, Petitioners, v. Mayor Sylvester TURNER and City of Houston, Respondents
• Court: Texas Supreme Court

538 S.W.3d 73

Jack PIDGEON and Larry Hicks, Petitioners,
v.
Mayor Sylvester TURNER and City of Houston, Respondents

No. 15-0688

Supreme Court of Texas.

Argued March 1, 2017
Opinion delivered: June 30, 2017

James D. Blacklock, David Austin Robert Nimocks, Austin, for Amici Curiae Abbott, Greg and State of Texas.

Mark Ryan Trachtenberg, Haynes and Boone LLP, Dallas, for Amicus Curiae Anti-Defamation League.

Emma Asson, Park Ridge IL, pro se.

Kenneth Busch, San Antonio, pro se.

Jennifer Carson, Austin, pro se.

Andrew Bergman, Christopher Mohr O'Dell, Trenton David, Arnold & Porter Kaye Scholer LLP, Houston, for Amicus Curiae Constitutional Law and Family Law Professors.

Jason P. Steed, Bell Nunnally & Martin LLP, Dallas, for Amicus Curiae De Leon, Cleopatra; Dimetman, Nicole; Holmes, Victor; and Phariss, Mark.

Genessa Eddy, Juniata NE, pro se.

Gene L. Locke, Kelly S. Sandill, Andrews Kurth Kenyon LLP, Houston, for Amici Curiae Equality Texas, and L.J. and M.P., a married couple.

Kyle T. Farrar, Ikard Wynne LLP, Austin, Taylor R. Romero, Cain & Skarnulis PLLC, Austin, for Amici Curiae Farrar, Diana Finfrock, and Moellering, Charlotte Reed.

James J. S. Johnson, Dallas, for Amici Curiae Foundation for Moral Law, and Institute for Creation Research.

Adam P. Romero, The Williams Institute UCLA SCHOOL OF LAW, Los Angeles CA, Matthew P. Rand, New York NY, Puneet Kohli, McKool Smith, Austin, Thomas B. Watson, McKool Smith, P.C., Los Angeles CA, for Amicus Curiae Gary J. Gates, PHD, Kerith J. Conron, SCD, and Taylor N.T. Brown, MPP.

Kenneth D. Upton Jr., Lambda Legal Defense & Education Fund, Inc., Dallas, Rebecca Robertson, ACLU of Texas, Houston, for Amicus Curiae GLBTQ Advocates & Defenders, Lambda Legal Defense and Education Fund, Inc., National Center for Lesbian Rights, American Civil Liberties Union of Texas, and American Civil Liberties Untion Foundation.

Chris D. Grayson, New Braunfels, pro se.

Elizabeth G. Bloch, Husch Blackwell LLP, Austin, for Amici Curiae International Municipal Lawyers Association, and Texas Municipal League.

Maggie Jackson, Kyle, pro se.

Angela Annette Hunt, Farrow-Gillespie & Heath, Dallas, Brian Patrick Lauten, Deans & Lyons, LLP, Dallas, Christopher Scott Hamilton, Standly & Hamilton, LLP, Dallas, for Amicus Curiae Lawyers for America.

Will Metcalf, Austin, pro se.

Richard A. Nedbalek, Reno NV, pro se.

Adam Strahan, Strahan Law Firm, PLLC, Houston, Briscoe Cain III, The Cain Law Firm, Deer Park, Terry W. Yates, Terry W. Yates & Associates, PC, Bellaire, for Amici Curiae Numerous Conservatives Leaders throughout Texas, State Representatives, and State Senators.

Darrell D. Davila, Austin, for Amicus Curiae Patrick, Dan.

Brantley D. Starr, Austin, for Amicus Curiae Paxton, Ken.

Bonnie J. Peplin, Georgetown, pro se.

C. W. "Rocky" Rhodes, South Texas College of Law, Houston, for Amicus Curiae Rhodes, Charles W.

Kenneth L. Smith, Golden CO, pro se.

Jared R. Woodfill, Woodfill Law Firm, P.C., Houston, Jonathan F. Mitchell, Stanford CA, Jonathan M. Saenz, Austin, Leif A. Olson, Cokinos | Young, Houston, for Petitioners.

Kathleen Hopkins Alsina, David L. Red, John B. Wallace, Judith L. Ramsey, City of Houston Legal Department, Houston, Darah Lyn Eckert, Houston, Donna L. Edmundson, Ronald C. Lewis, Houston City Attorney, Houston, Douglas W. Alexander, Nicholas B. Bacarisse, Alexander Dubose Jefferson & Townsend LLP, Austin, for Respondents.

Justice Boyd delivered the opinion of the Court.

538 S.W.3d 75

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

538 S.W.3d 76

as opposite-sex couples." Obergefell v. Hodges , ––– U.S. ––––, 135 S.Ct. 2584, 2605, 192 L.Ed.2d 609 (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, 570 U.S. 744, 133 S.Ct. 2675, 2689, 186 L.Ed.2d 808 (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 Union¹ 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

538 S.W.3d 77

the 1990s, many other states and the federal government⁴ enacted DOMAs to amend their statutes⁵ —and in some states, their constitutions⁶ —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

538 S.W.3d 78

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, 74 S.Ct. 693, 98 L.Ed. 884 (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 Hicks⁹ filed suit against the City and the Mayor¹⁰ in...