Texas Republicans haven’t given up the fight against same-sex marriage and their political pressure on that state’s Supreme Court today paid off.

The Court reversed an earlier decision and sent back to a trial court the question of whether same-sex married couples are entitled to the same government-subsidized benefits — such as health insurance — that opposite-sex couples receive. There was a fairly tortured path to today’s decision and the decision itself is a maze. But in short, the court said, there is no inherent right to such benefits.


But, in conceding that the U.S. Supreme Court in the Obergfell decision ended state bans on same-sex marriage, the Texas court said it did not  it “did not hold that states must provide the same publicly funded benefits to all married persons” or specifically hold unconstitutional laws in Texas aimed at preventing equal treatment of gay couples.

It ordered the trial court to consider these issues, without saying how the court should decide. The court, in essence, punted, but in a way favorable to opponents of same-sex marriage. The Supreme Court said the case hadn’t been fully briefed to begin with because the Obergfell decision arrived as the case was ongoing.


This article in Slate ahead of today’s ruling explains the case in more detail.

Today’s opinion drew on the U.S. Supreme Court’s decision in a recent case from Arkansas, the Pavan case, that should support the broadest interpretation of Obergfell. There, the court said issuance of birth certificates was among the many processes controlled by the state that should be applied equally.


Said the Texas court:

In Obergefell, the Supreme Court acknowledged that our historical view of marriage has long been “based on the understanding that marriage is a union between two persons of the opposite sex.” It concluded, however, that this “history is the beginning of these
cases,” and it rejected the idea that it “should be the end as well.” But Obergefell is not the end either. Already, the Supreme Court has taken one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell, and there will undoubtedly be others. [The Pavan case.] Pidgeon and the Mayor, like many other litigants throughout the country, must now assist the courts in fully exploring Obergefell’s reach and ramifications, and are entitled to the opportunity to do so. 

This looks like a terrible precedent, a signal to the bitter-enders to force lawsuits on every potential application of the law and to deny equal treatment by whatever means possible in whatever context possible. It’s a mean prospect. Equal means equal. With Neil Gorsuch now linking arms with Alito and Thomas on the Supreme Court against Pavan, it might not prove such a simple proposition if Trump adds more of his ilk to the court.

I shudder to think what Jerry Cox can do with this thinking before the anti-gay Arkansas Supreme Court majority that found simple discrimination in birth certificates legal. This case is an invitation for a Bob Ballinger or Bart Hester or similar to claim — as plaintiffs from Houston did in the Texas case — that their religious freedom is infringed by paying taxes that go to subsidize health insurance for married gay people.