Texas Supreme Court says in Pidgeon and Hicks v. Turner that Obergefell is no defense for Houston Mayor’s same-sex benefits

By Rev. Dave Welch

During the reign of Houston Mayor Annise Parker, one of the numerous acts of aggression against the rule of law and basic decency that she perpetrated was to arbitrarily recognize same sex marriages from others states in order to extend employee benefits to non-married and same sex partners of city employees.  Parker issued her memo dated November 19, 2013 when the law in Texas (Article 1, Section 32) explicitly limited marriage to only one man and one woman, making her action as a city mayor clearly a violation of the law.

Related Story: Judge denies City of Houston’s request to remove restraining order on marriage lawsuit (Houston Chronicle, 12/20/13)

Parker’s defense for her action was a legal opinion by her City Attorney David Feldman (later to leave office after the fiasco of the “sermon subpoena” incident under his watch) in which he brazenly wrote, “After reviewing relevant case law around the country and from the U.S. Supreme Court, I believe a court would now find that the continued application of Article II, Section 22 of the Houston City Charter to deny benefits to legally married same-sex spouses to be unconstitutional, primarily because it denies the employees of such spouses equal protection of the laws.” (emphasis added)

Please make note that a CITY ATTORNEY single handedly declared a city charter section as unconstitutional completely usurping state and federal courts.  This abject contempt for separation of powers, fundamental judicial process and the will of the people was a hallmark of the Parker/Feldman regime.

Houston Area Pastor Council enlisted Pastor Jack Pidgeon and Houston CPA Larry Hicks joined as co-plaintiff in filing a legal challenge to the mayor’s unlawful act in state district court on December 27, 2013 with Houston attorney Jared Woodfill as lead counsel.  That case eventually has made its way to the Texas Supreme Court, hence their opinion issued on June 30, 2017 that the lower appellate court erred in denying plaintiffs a hearing in this case.

One of the key arguments presented to the TSC was that, “The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and—unlike the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.” (Pidgeon, Page 16)

The high court’s opinion also reaffirmed that the factual merits of the lawsuit are yet untested by asserting, “The parties agree, for example, that Pidgeon sued the Mayor in her official capacity for acting ultra vires, that is, “without legal authority.” ….Pidgeon alleges that the Mayor acted unlawfully and without authority by issuing and enforcing the directive because the Texas and Houston DOMAs prohibit the City from providing benefits to employees’ same-sex spouses. Governmental immunity does not bar an ultra-vires claim, but the parties disagree whether the Mayor’s directive remains unlawful and unauthorized after Obergefell. This disagreement may present the ultimate issue in this case, both on the merits and for purposes of determining whether the Mayor has acted ultra vires.

It is important that pastors and our citizens understand that they key issue at hand is the basic rule of law.  The issue itself of employee benefits is really secondary. It is undisputable that Obergefell (opinion June 26, 2015) was not in effect, that the law of Texas and the Houston City Charter were very clear and that neither any Mayor of any city nor their city attorney may act as judge and jury.

We trust and pray that as Pidgeon v. Turner moves back to trial as ordered by the court it will be clearly presented that the people have a right to establish clear standards of what we recognize as beneficial to the well-being of society.  Extending employee benefits only to the lawfully married spouses (one man, one woman) and immediate family of employees affirms and publicly recognizes that this ancient, God-created institution of family has essential value to the “compelling public interest” of preserving the most stable social order.

Pidgeon v. Turner is one of the many stands that Houston Area Pastor Council has taken to bring a united, biblical voice to the arena of governing and justice.  We express deep appreciation to attorney Jared Woodfill, the Texas Supreme Court and of course to our courageous Pastor Jack Pidgeon for being our point man on this stand for God’s created order, the rule of law and the sanctity of marriage.

This has much yet to be done in the courts so please continue praying for God’s sovereign guidance, protection, favor and wisdom for attorneys, judges, clerks, and all involved.  We cannot surrender, yield or falter in declaring His truth with His love!