The Roe Strategy (Update)

I've been predicting for awhile that the right will try to chip away at marriage equality the way they have at abortion rights, and sure enough: Texas has done it:

The Texas Supreme Court on Friday threw out a lower court ruling that said spouses of gay and lesbian public employees are entitled to government-subsidized same-sex marriage benefits. The state's highest civil court unanimously ordered a trial court to reconsider the case.

As part of a case challenging Houston’s benefits policy, the Supreme Court suggested a landmark ruling legalizing same-sex marriage does not fully address the right to marriage benefits. Justice Jeffrey Boyd, writing on behalf of the court in a 24-page opinion, said there’s still room for state courts to explore the “reach and ramifications” of the U.S. Supreme Court's 2015 ruling in Obergefell v. Hodges.

The Supreme Court did rule on this issue in Obergefell v.Hodges:

This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g., Zablocki, supra, at 383 388; Skinner, 316 U. S., at 541.

These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Bakerv. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.

(Emphasis added.)

I'd like to ask the all-Republican Texas Supreme Court what part of "same terms and conditions" they don't understand.

This decision will, of course, be appealed to the Supreme Court. What the marriage opponents are obviously hoping for is that by the time it reaches the Court and is granted cert, another "liberal" will have retired or died and Trump and the Republicans in the Senate will be able to insert another closet Dominionist.

This is not the first attempt to redefine "equal" in regard to married same-sex couples. The Supreme Court just threw out a decision by the Arkansas Supreme Court upholding a discriminatory state law regarding the right of non-biological parents to be named on birth certificates. (Interestingly enough, Roberts, who dissented in Obergefell, concurred in this decision.)

Footnote: Another downside of electing judges:

The decision by the Texas Supreme Court to take up the case was regarded as an unusual move because it had previously declined to take it up last year. That allowed the lower court decision to stand.

But the state’s highest civil court reversed course in January after receiving an outpouring of letters opposing the decision. They also faced pressure from Texas GOP leadership — spearheaded by Gov. Greg Abbott, Lt. Gov. Dan Patrick and Texas Attorney General Ken Paxton — who asked the court to clarify that Obergefell does not include a “command” to public employers regarding employee benefits.

Federal judges, who are appointed for life, don't care how many letters they get.

Update: Under the heading "Any Port in a Storm":

But, as Josh Blackman, a law professor at the South Texas College of Law Houston noticed, the Texas Supreme Court took what NCRM can only call the unprecedented step of admitting it took public opinion into account when deciding the case, Pidgeon v. Houston.

And not just public opinion, but postcards, letters, and emails.

Generally, interested parties can petition the court to allow them to submit an amicus brief to express their opinion on a particular case. For example, in Obergefell v. Hodges, the U.S. Supreme Court case that finally declared marriage for same-sex couples to be a civil right, nearly 150 "friend of the court" briefs were accepted.

But the Texas Supreme Court admits not only did it accept amicus briefs, it accepted public opinion – basically the opinion of anyone who wrote to the court, regardless of their ties to the case, regardless of their level of expertise. Presumably, not one of these opinions were vetted; it's entirely unknown who sent them.

The Texas Supreme Court seems to suspect it might be on shaky ground with this decision, so they're going after any justification, sketchy as it might be: As David Badash notes in the article quoted, there is a procedure to allowing non-participants in a proceeding to intervene; sending a postcard or e-mail does not fall within those requirements: that's on the order of letters to the editor or comments on a blog as far as appropriate influence on a court decision goes. As the Court held in West Virginia Bd. of Ed.v. Barnette, "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." And sending a postcard isn't anywhere near as formal a procedure as voting.

In a sane universe, this would never have been decided this way. We can hope that it will be shot down rapidly, but then, we're living in Trump's America.