Law

Congratulations on Your … Whatever

The city of Dallas has provided same-sex partner benefits since 2004. Texas Attorney General Ken Paxton wants to take them away.

A very good day.
A very good day. Photo by Matthew Pallas.

It probably wasn’t the best proposal, but it combined two of my favorite things in 1996: camping and poetry. Those have to be two of Melissa’s least favorite things. But I thought it would be romantic. A campfire on the sand dunes, a prose recitation, a couple of Rolling Rocks and a foil packet dinner.

As I remember it, Melissa seemed confused but vaguely touched. Like when our cat drops a still-wriggling gecko on the bed. It’s uncomfortable and a little off-putting, yet sweetly well-intentioned.

I had told my younger sister the plan in advance, so I called her when I got home because that’s what sisters are supposed to do after a proposal. “How did it go?” she asked. “I’m not sure,” I said. “What do you mean you’re not sure?” she asked. “I’m not sure she understood it was a proposal,” I said.

To my credit, there wasn’t much of a wedding play book for gays in the ’90s. Because gay “weddings” weren’t legal. Anywhere. So if you wanted some kind of a formal commitment, you had to make it up.

You could certainly copy. You could wear a white dress or a tux and rent a hall and have someone who resembled or was a preacher or a judge say all the words that you heard at every other wedding. But for two agnostic law students, it didn’t mean anything. Because it wasn’t legal. So we decided we didn’t want a wedding; there wasn’t much of a point.

But I still wanted some sort of formal acknowledgement, hence the proposal. Melissa was starting her first job with a firm, and I was moving in with her and her older sister. We were opening a joint checking account; I was driving her soft-top Jeep.

So we did what lawyers do. We drafted wills and health care powers of attorney. We added rights of survivorship wherever we could. We bought insurance and stock and real property. We comingled assets.

Fast forward a couple of decades. In early 2013 we were attending a legal conference in New York City. Kinky Boots had just opened on Broadway. A colleague told Melissa that, while at the conference, two older gay male friends of hers had gotten married at the Waldorf Astoria in a beautiful, intimate ceremony. They had been together for 40 years. There wasn’t a dry eye or drop of Champagne left in the room.

Melissa and I talked that night. Maybe marriage, even one that wasn’t legal in our home state, did mean something. Maybe it was enough that it was now legal somewhere. Maybe for our 20th anniversary we would get married, too.

Then, on June 26, the United States Supreme Court issued the Windsor decision, holding—in a tax case—that a specific part of the Defense of Marriage Act was unconstitutional and that the federal government couldn’t treat state-sanctioned same-sex marriages differently from state-sanctioned heterosexual marriages. Because they aren’t less than. And there is no legitimate purpose served by pretending that they are.

Suddenly, standing in Dallas, our marriage would mean something, at least in the eyes of the federal government.

I quickly pulled out my version of a wedding planning binder, a soup-stained year-old copy of Saveur with James Oseland’s editor’s note about his New York marriage to his partner. If we couldn’t get legally married in Dallas, I wanted a wedding like his—to go to the Office of the City Clerk in NYC and go out for dinner in Chinatown after. So that’s what we did, before Anthony Kennedy or anyone else could change their minds. Only we had Peking duck for 12 instead of Taiwanese. And we added the Statue of Liberty for the nephews.

My grandfather died the week before the wedding, so we made a trip to Ohio for the funeral before leaving for New York. I still remember Melissa standing on the front lawn of my grandparents’ home, saying goodbye to my father. They had known each other for nearly 20 years. “Congratulations on your … whatever,” he said.

Whether or not he could find a word for it, it was a marriage, legally granted by the Great State of New York, as our enthusiastic clerk proudly proclaimed. And when the Obergefell decision came out two years later (not coincidentally on June 26), making our marriage legal in every state in the union, including Texas, I sat at my desk in Dallas, on the phone with my wife, and sobbed.

Fast forward a year and some change. The Texas Supreme Court decided a little over a week ago on January 20—suddenly reversing a previous ruling—that it would hear arguments in a case seeking to halt same-sex spousal benefits offered by the City of Houston to its employees.

For fun, I printed out a copy of the amicus brief filed by Governor Greg Abbott, Lieutenant Governor Dan Patrick, and Attorney General Ken Paxton back in October. The gist of their argument is this: although the Supreme Court has determined that gay people can get married, those marriages should not be entitled to any of the benefits that straight people get from marriage. More specifically, the state should be able to prohibit Texas cities from providing benefits to same-sex spouses.

Now this is a hard legal conclusion to reach, because the very reason the Supreme Court has found that gay people can get married is, in large part, because of the thousands of benefits, big and small, that legal marriage provides. And because there is no legitimate reason to provide those benefits to straight married people and not to gay married people.

The other creative part of Abbott and Patrick and Paxton’s argument would put every law school and lawyer out of business. It is this: no one should pay any attention to the words in legal opinions. They argue that although legal opinions include lots of reasoning and explanations and citations of legal history, courts should pay no attention to those words, only the actual judgment. They argue that Obergefell requires public employers, like the city of Houston, to recognize same-sex marriage, but no more.

I have to give Abbott, Patrick, and Paxton chutzpah points. Because if you’ve ever been to law school, you know. You don’t spend three years parsing judgments. You spend three years and the rest of your legal career interpreting, analyzing, arguing, and quoting written opinions. Judges write them for a reason, to explain how they reached their legal conclusion. So the rest of us can follow along. And, more importantly, so that other courts can understand how to apply the judgments.

Here is the judgment in Obergefell:

“The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

And here is part of Justice Kennedy’s opinion explaining the judgment issued by a majority of the Supreme Court:

“Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers’ compensation benefits; health insurance; and child custody, support, and visitation rules. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”

Sounds pretty clear to me. The reason the Fourteenth Amendment requires states to recognize same-sex marriages is that marriage includes a heckuva lot of benefits. You can’t work the logic in reverse and argue that you can remove the benefits for same-sex couples and leave them with a marriage in name only. Without inheritance rights. Or hospital access. Or the benefits of survivors. Or health insurance.

The senior assistant city attorney on the Houston case also noted that Abbott, Patrick, and Paxton’s logic fails to pass muster because they themselves previously made the decision to change state policies with respect to employee benefits in order to comply with Obergefell, as well as with the Fifth Circuit Court of Appeals in De Leon, which found the Texas Defense of Marriage Act to be unconstitutional in light of the Supreme Court’s decision.

My wife and I moved to the city of Dallas in 2004 solely because my wife’s job offer included same-sex domestic partner benefits. I could not have quit my job and moved to Texas without being able to be on Melissa’s insurance. And the reason I chose to accept my job with the city of Dallas was that they, too, offered same-sex domestic partner benefits in 2004. Because I knew my wife could someday lose her job, maybe as part of a merger or a bankruptcy, and she may need to be on my health insurance at some point.

A few weeks ago, a young friend of mine was applying for a new job. She texted me to ask whether or not she should ask her potential employer about the climate for gay employees. I told her my litmus question had always been whether or not the company offered same-sex domestic partner benefits. It was a convenient way to out myself and gauge the employer’s reaction at the same time. But, I told her, that doesn’t work anymore, because employers now have to provide the same benefits to all married couples.

I sincerely hope I’m right.

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