In June of 2015, the Supreme Court issued an opinion in Obergefell v. Hodges which dramatically challenged and overturned the status quo regarding marriage throughout the United States, and particularly in Texas, by declaring that, “The Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Among the reasons for the decision, the Court cited that “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.” Among the “constellation of benefits” cited by the Court are property rights, hospital access, adoption rights, worker’s compensation benefits, and health insurance, among others.
Following the Obergefell opinion, many states – Texas included – found that their pre-existing structures for providing spousal benefits had to be adapted to account for the possibility of same-sex marriage. One such case arose out of Arkansas. In Arkansas, as in most states, when a woman in an opposite-sex marriage gives birth, her husband’s name is placed on the birth certificate as the child’s father, unless the woman, her husband, and the child’s actual biological father all swear that the husband is definitely not the child’s father.
After the legalization of same-sex marriage, however, married lesbian women who gave birth found that their spouses were not listed on their child’s birth certificate, despite their request that their wives be listed as legal parents. In Pavan v. Smith, the U.S. Supreme Court declared the practice unconstitutional, noting that the decision not to list a mother’s female spouse on her child’s birth certificate “denied married same-sex couples access to the ‘constellation of benefits that the state has linked to marriage.’”
One interpretation of Pavan v. Smith is that states may not deny benefits to same-sex couples that they extend to opposite-sex couples. In Texas, however, the Texas Supreme Court has taken a different interpretation – namely, that each benefit must be individually reviewed and decided on a case-by-case basis. In late 2013, the City of Houston began making spousal benefits available to city employees’ same-sex spouses where the couples had married outside of Texas. That same year, a citizen sued to challenge the extension of benefits to same-sex spouses; Obergefell was decided while the suit was still being litigated. Ultimately, four days after the decision Pavan was issued, the Texas Supreme Court ruled that Obergefell did not hold that states “must provide the same publicly funded benefits to all married persons.” The Texas Supreme Court did not, however, address Pavan in their decision.
At current, it remains unclear whether, in Texas, same-sex couples are entitled to the same rights and benefits as opposite-sex couples. Pavan v. Smith implies that they are, but the Texas Supreme Court has held otherwise, and there are several statutes still on the books in Texas that limit same-sex couples’ rights to the benefits of marriage that opposite-sex couples have access to, such as the right to have both spouses named on an original or amended birth certificate, or the right to receive spousal benefits when one spouse works for the Texas government at any level.
Written by: Nita Hight