Texas AG Greg Abbott says same-sex benefits in Houston violate constitutional amendment banning gay marriage

Texas Attorney General Greg Abbott

Texas Attorney General Greg Abbott

Republican Texas Attorney General Greg Abbott is attempting to intervene in two federal lawsuits over same-sex benefits for Houston employees, saying he believes the benefits violate the Texas Constitution.

Abbott’s office has requested permission to file friend-of-the-court briefs in the two cases, according to federal court records. A judge has yet to rule on the requests.

In December, two Houston taxpayers sued over Houston Mayor Annise Parker’s decision to extend benefits to the same-sex spouses of city employees. In response to the lawsuit, a state district judge issued a temporary restraining order halting the benefits. But then Parker and the city removed the case to federal court, where U.S. District Judge Lee Rosenthal declined to issue a new restraining order. Same-sex benefits have resumed as the lawsuit proceeds.

On Jan. 17, Abbott’s office requested Rosenthal’s permission to file a brief saying the case, Pidgeon v. Parker, should be remanded to state court.

“The need for a prompt remand is particularly acute because the defendants’ improper removal is enabling them to persist in violating the Texas Constitution,” the AG’s office wrote in the brief. “In the context of this litigation, only a state court has jurisdiction to enjoin the defendants’ unconstitutional conduct. The case should be remanded to allow Texas courts to enforce the Texas Constitution.”

The other lawsuit, Freeman v. Parker, was filed by the LGBT civil rights group Lambda Legal, on behalf of three gay Houston employees, against Parker and the city — after same-sex benefits were halted due to the restraining order. In that case, Abbott’s office is asking the judge to dismiss the lawsuit, since Lambda Legal, Parker and the city are on the same side of the underlying issue.

“The plaintiffs and defendants all desire a regime that extends health benefits to the same-sex partners of city employees who obtained marriage licenses from other jurisdictions, and the defendants are refusing to obey state laws that prohibit them from recognizing out-of-state same-sex marriages,” Abbott’s office wrote. “The defendants appear to have no intention of obeying the state’s marriage laws absent compulsion by a judge. That means the plaintiffs’ true grievances are not with city officials but with the state-court judges that enforce state law against those city officials.”

Last year, Abbott’s office issued a nonbinding, advisory opinion saying domestic partner benefits offered by local government entities violate the constitutional amendment approved by voters in 2005. The amendment says: “Marriage in this state shall consist only of the union of one man and one woman. This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Abbott’s office is also defending the state’s marriage bans against three separate federal lawsuits from same-sex couples directly challenging the amendment. The lawsuits allege the state is violating the couples’ rights to due process and equal protection under the U.S. Constitution. And Abbott has intervened to block same-sex couples from obtaining divorces in Texas, in cases that are pending before the Texas Supreme Court.

Abbott is running for governor in 2014 and is expected to face Democrat Wendy Davis in November.