How Justice Neil Gorsuch Is Helping Texas Undermine Marriage Equality

"Gorsuch is inviting state courts to put up barriers to marriage equality," notes one constitutional scholar.
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On Friday, the Texas Supreme Court, in a unanimous decision, refused to dismiss a case brought by two Houston taxpayers who believe the city shouldn’t provide employee benefits for the same-sex spouses of city employees. As New York Law School professor Arthur S. Leonard, who called it a “clear misreading” of the U.S. Supreme Court’s 2015 Obergefell decision on marriage equality, explained:

Instead, even while affirming the Texas Court of Appeals’ ruling that reversed a 2014 trial court preliminary injunction against paying those benefits, the Texas high court sent the case back to the trial court to consider whether Obergefell obligates Houston to provide equal benefits to it employees’ same-sex spouses.

It was particularly brazen of the Texas Supreme Court in light of the 6-3 ruling handed down by the U.S. Supreme Court earlier in the week overturning an Arkansas Supreme Court ruling that allowed the state to prevent both individuals in a same-sex marriage to be listed as parents on the birth certificate when one gives birth to a child, though it does so for individuals in opposite-sex marriages (no matter the biological father of the child). The court’s majority, which included Chief Justice John Roberts, who dissented in Obergefell but clearly recognized precedent, affirmed:

As we explained [in Obergefell], a State may not “exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” Indeed, in listing those terms and conditions — the “rights, benefits, and responsibilities” to which same-sex couples, no less than opposite-sex couples, must have access — we expressly identified “birth and death certificates.” That was no accident…

But here we have a stellar example of how important a dissenting opinion on the high court can be. Last week I wrote about how Justice Neil Gorsuch, writing the dissent in the Arkansas case, has, as predicted, defined himself as a foe of LGBT equality, contrary to his gay friends’ hopes. And Harvard constitutional law professor Noah Feldman, who clerked for retired justice David Souter, explained in an opinion piece on Bloomberg View that Gorsuch’s dissent, joined by Justices Alito and Thomas, is “highly significant,” evidence of “a bid to become a hardline leader” and a “rallying cry for conservative resistance,” which will serve to embolden conservative judges to challenge Obergefell:

What this means for conservatives is that Gorsuch ― with two more votes on his side ― wants more states to refuse to apply Obergefell according to its simple logic. Instead, Gorsuch is inviting state courts, some of them elected in states where gay marriage remains unpopular, to put up barriers to marriage equality...

That was four days before the Texas Supreme Court ― the justices on which are elected in statewide partisan elections ― handed down its ruling. Lest anyone think that the Texas justices might have finalized their unanimous decision before the Supreme Court’s Arkansas ruling (and Gorsuch’s dissent), they’ve only to read the Texas ruling to see that in support of its decision the court refers to another U.S. Supreme Court action announced on the same day the Arkansas decision was handed down, even as it ignores the Arkansas ruling. As Leonard takes notes:

[T]he Texas court has now repeated the Arkansas Supreme Court’s error by insisting that the Obergefell ruling does not clearly require “the same” rights, benefits, and responsibilities. Incredibly, in support of this point, the Texas court cited the Supreme Court’s decision on June 26 to grant review of a Colorado Court of Appeals ruling, Masterpiece Cakeshop v. Colorado Human Rights Commission, which concerns a totally different question: whether a baker has a First Amendment right to discriminate against a same-sex couple by refusing an order for a wedding cake in violation of that state’s anti-discrimination law.

It’s ludicrous for the Texas Supreme Court to cite the mere decision of the U.S. Supreme Court to grant review in the Colorado baker case as a basis for its argument ― while ignoring the Arkansas birth certificate ruling, which affirms Obergefell. If the Texas case even gets to the U.S. Supreme Court in the near future the high court would most certainly rule as it did in the Arkansas case, so Obergefell is in no imminent danger.

But the point really isn’t that Obergefell is in danger of being imminently overturned so much as that it will be under sustained assault, which can have impact as time goes on. Obergefell was a great loss for anti-LGBTQ crusaders, and they’ve turned to plan B. The goal now of religious conservative is a long-term one to weaken Obergefell, as they have done with Roe v. Wade over decades, and, as I’ve described in detail, to turn same-sex marriage into a kind of second-class marriage, allowing for religious exemptions. Feldman describes a process in which Gorsuch will lead the court’s conservatives, whose numbers may grow as vacancies arise, over time, and keep anti-LGBTQ activists energized:

Gorsuch doesn’t have the votes now to make such resistance succeed. But that he is inviting it anyway is an effective rallying cry to conservative activists. They know that they will in the future get an opinion from Gorsuch, at any rate, supporting their efforts. Crucially, this shows that at this stage of his judicial career, Gorsuch isn’t on board with Roberts’s commitment to precedent. He’s rabble-rousing. And the reason to do that is to become the conservative leader.

That should sound an alarm for LGBTQ people. Once again, it underscores how the Trump era can see a rollback on LGBT rights, and how the fight for equality is far from over.

Correction: An earlier version of this piece referred to the “late” Justice David Souter. He is retired.

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