A campaign by social and religious conservatives produced a barrage of emails asking the eight other justices to reconsider or risk a backlash in the next GOP primary. Leading Republicans — including Gov. Greg Abbott, Lt. Gov. Dan Patrick and Attorney General Ken Paxton — joined the call, and in January the court issued a rarely granted motion to rehear the case and set oral arguments for March 1.
'Numerous Emails, Letters, and Postcards Expressing a Wide Variety of Views, Which We Have Treated as Amicus Briefs'
The Texas Supreme Court early Friday morning rejected a state appeals court ruling that found same-sex couples must be treated equally, including in the benefits they are entitled to receive from the state. Two men sued the Mayor of Houston saying the city did not have the right to grant married same-sex couples the same employee marriage benefits that married different-sex couples automatically receive.
While the Texas Supreme Court did not specifically rule same-sex couples don't have to receive equal benefits, it didn't actually say they did not, except to imply in its opinion that they don't.
"No inherent right to gay marriage benefits," is how the Austin American-Statesman reported the ruling.
The Court sent the appeals court ruling back to the lower court for review.
But, as Josh Blackman, a law professor at the South Texas College of Law Houston noticed, the Texas Supreme Court took what NCRM can only call the unprecedented step of admitting it took public opinion into account when deciding the case, Pidgeon v. Houston.
And not just public opinion, but postcards, letters, and emails.
Generally, interested parties can petition the court to allow them to submit an amicus brief to express their opinion on a particular case. For example, in Obergefell v. Hodges, the U.S. Supreme Court case that finally declared marriage for same-sex couples to be a civil right, nearly 150 "friend of the court" briefs were accepted.
But the Texas Supreme Court admits not only did it accept amicus briefs, it accepted public opinion – basically the opinion of anyone who wrote to the court, regardless of their ties to the case, regardless of their level of expertise. Presumably, not one of these opinions were vetted; it's entirely unknown who sent them.
"Both before and after we granted review, we received numerous amicus curiae briefs urging us to consider the case and expressing various views on how we should rule," the Court writes in a footnote buried on page 9 of the 24-page ruling.
"In support of Pidgeon," actually Jack Pidgeon and Larry Hicks, two men who don't believe same-sex couples deserve equal rights or benefits, the court writes, "we received amicus briefs from one Texas Railroad Commissioner, eleven Texas Senators, forty Texas Representatives, and four then-candidates for the Texas Legislature; fifteen 'Conservative Leaders throughout Texas,' the U.S. Pastor Council, and Texas Leadership (aka the Texas Pastor Council); the Texas Governor, Lieutenant Governor, and Attorney General; and the Foundation for Moral Law and the Institute for Creation Research."
Yes, Texas Governor Greg Abbott, anti-LGBT activist and extremist Lt. Governor Dan Patrick, Texas Attorney General Ken Paxton (charged with felony fraud), former Alabama Chief Justice Roy Moore's Foundation for Moral Law, and the pseudoscience group Institute for Creation Research were all allowed to weigh in and have their opinions taken into consideration.
"In support of the Mayor," actually the Mayor of Houston, Sylvester Turner, "we received amicus briefs from Kenneth L. Smith; the International Municipal Lawyers Association and the Texas Municipal League; Lawyers for America; twenty-six Texas constitutional-law and family-law professors; L.J. and M.P., a Married Couple, and Equality Texas; the De Leon plaintiffs; the Anti-Defamation League; GLBTQ Legal Advocates & Defenders, Lambda Legal Defense and Education Fund, Inc., the National Center for Lesbian Rights, the American Civil Liberties Union of Texas, and the American Civil Liberties Union Foundation; and three 'scholars who study same-sex couples and their families.'"
And then this stunning admission:
"We also received numerous emails, letters, and postcards expressing a wide variety of views, which we have treated as amicus briefs."
In other words, it was a Texas free-for-all.
If you had a pen, a post card, and a stamp, your opinion, regardless of the quality of it, how well versed on the law you are, no prerequisites whatsoever, you got a say in whether or not a ruling on same-sex marriage rights should stand.
A Gallup poll would have been more scientific.
In case you're wondering, justices on the Texas Supreme Court are elected, not appointed.
Why judges shouldn't be elected, in a nutshell. https://t.co/0oVb80mBnG— Ian Millhiser (@imillhiser) June 30, 2017
Friday’s ruling by the state’s highest civil court returns the case to a Harris County district court to determine if the U.S. Supreme Court’s marriage ruling applies to spousal benefits provided by the city of Houston.
This was not a legal ruling, this was a campaign re-election rally.
To comment on this article and other NCRM content, visit our Facebook page.