Two taxpayers filed a motion for rehearing with the Texas Supreme Court on Monday to reconsider their order denying review of a case against the openly gay former Houston Mayor and the City of Houston. They urge that Mayor Annise Parker violated the Texas Constitution and state statutes when she gave spousal benefits to gay employees in 2013 and 2014. Parker issued these benefits to employees prior to the U.S. Supreme Court’s same-sex marriage ruling.
The decision by the State’s highest court to not review the lower court’s decision, left in place a ruling that cities cannot deprive married same-sex couples the benefits it provides to opposite-sex couples. Texas Supreme Court Justice John Devine disagreed with his fellow justices and wrote that the Court should have heard the case.
The lawsuit was brought by Houston taxpayers before the U.S. Supreme Court issued its opinion granting same-sex marriage rights in Obergefell v. Hodges. The taxpayer lawsuit was an attempt to stop cities like Houston from granting employee benefits to same-sex couples who were married in a state that recognized gay marriage when Texas law did not. The trial court ruled in favor of the plaintiffs and granted a temporary injunction blocking the City’s actions. The Obergefell decision was issued prior to the Court of Appeals hearing and was cited by the intermediate appellate court when it overturned the trial court’s injunction.
As reported by Breitbart Texas on September 4, Justice Devine issued a dissenting opinion which stated that while the U.S. Supreme Court has declared that same-sex couples may marry, the U.S. Constitution does not necessarily require cities to offer benefits to same-sex spouses of employees. While marriage may be a fundamental right, spousal benefits are not, he reasoned. He wrote that the same constitutional strict scrutiny does not apply to employment benefits.
In their motion for rehearing, Petitioner/Plaintiff taxpayers argue that there is no “fundamental right” for married couples to receive taxpayer-funded benefits or subsidies. They urge that the Texas Supreme Court should instruct state courts to narrowly construe the Obergefell same-sex marriage ruling because the SCOTUS decision has no legal basis in the Constitution. They also argue that the ruling should be narrowly construed because it threatens the religious freedom of those who oppose homosexual behavior.
The Petitioners write:
[I]t is urgent that this Court step in and instruct the district court to narrowly construe the ruling in Obergefell v. Hodges, 135 S. Ct. 2584 (2015)—and the urgency has only grown since we filed our brief on the merits. Justice Devine’s dissent, along with recent rulings of federal courts that continue to abuse the judicial power by imposing ideologies that cannot be found anywhere in the Constitution, make it imperative for this Court to grant the petition for review and announce that the 5 courts of this State must construe Obergefell and similar rulings as narrowly as possible.
One of the lawyers for the plaintiff taxpayers who also serves as the president of Texas Values, Jonathan Saenz said, “We urge the Texas Supreme Court to take up this case to bring justice to the Houston taxpayers who were robbed because of Mayor Annise Parker’s illegal political agenda. Allowing Mayor Parker to change state law on taxpayer funded benefits by an executive order and bypass the Texas Legislature is embarrassing and unlawful. Additionally, the U.S. Supreme Court’s Obergefell ruling was about requiring access to a same-sex marriage license. To now use that ruling to force private taxpayers to pay for same-sex benefits of government employees is judicial activism to the highest degree.”
“We are asking the Texas Supreme Court to bring justice to taxpayers whose dollars were sacrificed on Mayor Parker’s altar of political correctness,” attorney and former Harris County Republican Party chairman Jared Woodfill told Breitbart Texas. Woodfill explained, “Mayor Parker issued an executive order to go around the Texas Legislature and this violates the religious liberties of those who oppose same-sex marriage. It also tramples on the Tenth Amendment rights afforded to the Texas legislature and tramples on the Legislature’s power of the purse.”
Lana Shadwick is a contributing writer and legal analyst for Breitbart Texas. She has served as a prosecutor and associate judge in Texas. Follow her on Twitter @LanaShadwick2.
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