This column first appeared March 24 on Library of Law and Liberty.
The March 1 oral argument was an astounding anti-climax to a manufactured drama
In a prior post, I discussed the Pidgeon v. Turner case, now pending before the Texas Supreme Court, involving a taxpayer challenge to same-sex spousal benefits. Oral argument was held on March 1. The taxpayers challenging the city of Houston’s policy of granting same-sex spousal benefits to city employees were represented at oral argument by Jonathan Mitchell, a former Scalia clerk, former Texas solicitor general, and now a visiting professor at Stanford law school. The city of Houston was represented by Douglas Alexander, a leading appellate practitioner in an Austin law firm whose partners include former Texas Chief Justice Wallace Jefferson. The oral argument was superb, and both counsel fielded numerous questions from the fully-engaged justices.
The issue in Pidgeon is whether Texas’s state law denying recognition to same-sex marriage, including any “right or claim to any … benefit” related thereto, prevents a political subdivision of the state, such as the city of Houston, from voluntarily providing same-sex spousal benefits to its employees, notwithstanding Obergefell. In Pidgeon, a Texas trial court ruling issued prior to Obergefell had enjoined the provision of such benefits, and the city appealed to the intermediate court of appeals. While the appeal was pending, the U.S. Supreme Court decided Obergefell, prompting the court of appeals to reverse the injunction and remand the case back to the trial court. The plaintiff-taxpayers sought discretionary review by the Texas Supreme Court, which was initially denied but then granted following a petition for rehearing.
The oral argument in Pidgeon was well-covered by Texas media, and even attracted attention from national publications, such as Slate, which sent Mark Joseph Stern to Austin for the hearing. For those in attendance who had read Justice John Devine’s dissent from the Texas Supreme Court’s initial denial of review in the case, dated September 2, 2016, the biggest surprise was the extent to which the argument was dominated by references to the De Leon case , a Fifth Circuit decision that was not even mentioned in Devine’s dissent. In light of the fact that Devine’s unusual 11-page dissent provoked a massive publicity (and fundraising) campaign by the non-profit conservative group Texas Values, a petition for rehearing by the plaintiff-taxpayers, and the filing of an amicus brief by Governor Greg Abbott, Lieutenant Governor Dan Patrick, and Attorney General Ken Paxton in favor of rehearing—all of which ultimately resulted in the supreme court granting review—Devine’s failure to even cite De Leon was quite remarkable.
De Leon, it turns out, was a constitutional challenge to Texas’s denial of recognition to same-sex marriage brought in federal court, which was litigated concurrently with the unrelated Pidgeon case in state court. De Leon invalidated the precise provisions of state law relied upon by the taxpayers in Pidgeon as “forbidding” the city of Houston’s policy. In fact, the July 1, 2015 Fifth Circuit decision in De Leon, authored by Judge Jerry E. Smith—arguably the most conservative judge on that court—was issued shortly after Obergefell and affirmed a district court injunction that enjoined the state of Texas “from enforcing Article I, Section 32 of the Texas Constitution, any related provisions in the Texas Family Code, and any other laws or regulations prohibiting a person from marrying another person of the same sex or recognizing same-sex marriage.” Obergefell, Judge Smith tersely observed, “is the law of the land and, consequently, the law of this circuit, and should not be taken lightly by actors within the jurisdiction of this court.” The state of Texas did not seek U.S. Supreme Court review of the De Leon decision.
It was awkwardly pointed out during the oral argument in Pidgeon that, pursuant to De Leon, the state of Texas is currently providing the very same-sex spousal benefits to state employees that the plaintiff-taxpayers oppose for employees of the city of Houston. As a practical matter, this makes the position of the plaintiff-taxpayers in Pidgeon untenable. How can it be improper for the city of Houston to do the exact same thing that the state of Texas has been ordered to do? (It is inconceivable that the state of Texas would withdraw all spousal benefits to state employees in order to avoid paying them to same-sex couples, yet that is its only other option under De Leon.)
Jonathan Mitchell was quite familiar with De Leon, since he helped argue it in the Fifth Circuit. Mitchell gamely argued to the supreme court in Pidgeon that De Leon is not technically “binding” on a state court, merely “persuasive authority,” and urged the supreme court to order that the Pidgeon case be remanded to the trial court for further proceedings “considering” De Leon, but not necessarily “consistent” with it. This tepid position is a far cry from the bold legal argument advanced in Devine’s dissent, which posited that Obergefell only created a “fundamental right” to the status of same-sex marriage, leaving the provision of employment benefits up to the states, reviewable under the “rational basis” test.
It became obvious during the hearing that Devine’s dissent had sent the court on a fool’s errand. Devine’s dissent, if adopted, would place the Texas Supreme Court on a collision course with the Fifth Circuit, which squarely enjoined Texas’s law prohibiting same-sex marriage and any benefits attendant thereto. The justices could barely conceal their incredulity at the narrow scope of relief sought by Mitchell, which was so exacting—literally parsing the terms of remand—as to appear specious.
Understandably, at oral argument the Texas Supreme Court peppered counsel with questions suggesting that it lacked jurisdiction over the case, and many observers speculated that the case would ultimately be dismissed on technical or procedural grounds. In Texas, interlocutory appeals from temporary injunctions, such as Pidgeon, must present an issue raising a conflict among the state’s intermediate courts of appeals in order for the supreme court to have jurisdiction.  Some of the justices strongly hinted that they believe the requisite “conflict” among Texas’s courts of appeals was missing.
Here is the unfortunate lesson of Pidgeon: Same-sex marriage is very unpopular in Texas, especially among the social conservatives who dominate Republican Party voters. In a lopsidedly red state like Texas, this voter bloc holds great sway in GOP primaries, where statewide elections are effectively determined. (In recent decades, the Republican nominee has always won statewide races.) Therefore, Republican elected officials are very reluctant to appear to be “soft” on an issue—such as gay marriage—that is anathema to the GOP base.
It appears that opponents of same-sex marriage cynically exploited the unpopularity of Obergefell to manufacture a baseless controversy in the Texas Supreme Court. The trial counsel for the Pidgeon plaintiffs are associated with Texas Values, a group that has energetically used the case for fundraising purposes; Jonathan Saenz serves as president of the organization, and Jared Woodfill serves on the board. Here is the headline from a recent Texas Values fundraising letter based on Pidgeon: “A STUNNING REVERSAL MEANS A NEW DAY IN COURT FOR MARRIAGE, TAXPAYERS’ RIGHTS. BUT WE NEED YOUR HELP.” The letter concludes: “we need your generous and immediate help. Please send that gift today!” (Also, here.)
Just as deplorable was the campaign of a group closely affiliated with Woodfill—Conservative Republicans of Texas—encouraging the public to barrage the supreme court with e-mails urging the court to reconsider the denial of review. Counsel for parties to a pending litigation should not, directly or through surrogates, cause public pressure to be brought to bear on a court in order to influence the court’s ruling. All judges in Texas, including Texas Supreme Court justices, are subject to partisan elections, making these type of pressure tactics in a pending case particularly reprehensible.
Principled conservatives can object to (but not defy) Obergefell without resorting to PR stunts, fundraising gimmicks, and—in the case of Devine’s dissent—misleading legal arguments that fail to acknowledge a Fifth Circuit precedent squarely on point. At oral argument, Jonathan Mitchell did an admirable job of tip-toeing through the minefield of unrealistic expectations created by Devine’s dissent, but—in all likelihood—to no avail. De Leon is the elephant in the room, and leaves precious little wiggle room for implementing Obergefell.
 Texas Family Code, section 6.204(c)( 2).
 Obergefell v. Hodges, 576 U.S. ___ (2015).
 De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015).
 Texas Government Code, section 22.225(c).