Attorney General Greg Abbott Rules that Domestic Partner Benefits are Barred by Texas Constitution

Voters didn't mince words in 2005, when they added Article I, Section 32 to the Texas Constitution. "Marriage in this state shall consist only of the union of one man and one woman," it says. "This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage."

Gay people can't get married; they can't enter into a civil union. Not in Texas at least.

This hasn't stopped a growing number of cities, counties, and school districts -- including DISD, Dallas County and the city of Dallas -- from extending benefits to the same-sex partners of employees, just like many companies do. It was fast becoming a trend, and one that seemed likely to continue for the foreseeable future as even Texans soften their stance on same-sex relationships.

But then state Senator Dan Patrick, a Houston Republican, wanted Attorney General Greg Abbott to weigh in, not as a Tea Partying Republican politician or an ordinary Texan but in his official capacity. Patrick submitted a formal request for an opinion in November. Today, Abbott issued his formal answer.

In a six-page opinion, Abbott explains why all those local governments that have handed out domestic partner benefits just like they're married heterosexual partner benefits are in violation of the state constitution.

He bases his argument on the portion of the document quoted above. The first question that has to be settled, Abbott writes, is whether the political subdivisions in question are indeed creating or recognizing a "legal status." On this, his answer is an unambiguous yes.

"While Texas law uses the term 'domestic partnership' to describe a type of business entity, no Texas statute establishes or recognizes a domestic partnership as it is described in your request or in the briefing submitted to this office," he writes. "Thus, the domestic partnerships about which you inquire are entirely a creation of the relevant political subdivisions."

Supporters of domestic partner benefits argued that simply extending health insurance to someone is not the same as creating a legal status. Abbott disagrees, contending that by establishing eligibility requirements for domestic partners and requiring legal documentation showing that an individual satisfies those requirements, these local governments are creating a new legal status.

This established, Abbott next goes on to show that this "domestic partner" status created by these local governments is "similar to marriage." All the political subdivisions that have put domestic partner benefits require that applicants for domestic partnership benefits show that they aren't currently married, aren't related to their partner by blood, and are at least 18 -- exactly what one has to do when applying for a marriage license. Therefore, domestic partnership = marriage = unconstitutional.

His opinion, he writes, is borne out by a decision out of the Houston Court of Appeals that called the constitution's language "unambiguous, clear, and controlling."

Abbott's decision does not carry the force of a court decision. It doesn't keep local governments from extending domestic partner benefits, nor does it require those that already offer the benefits to stop. It's merely Abbott's opinion of how Texas courts will rule on the issue. It's essentially a recommendation, albeit one that carries quite a bit of weight. It will certainly make some entities (we're looking at you, DART) hesitate to take the plunge.

But Abbott's opinion could end up being merely an academic exercise. He ends his opinion by briefly noting that two relevant cases before the U.S. Supreme Court, one challenging the federal ban recognizing gay marriage, the other California's ban on such marriages, will likely be decided soon. "Depending on the outcome of these cases, however, the Court's decision could call into question the enforceability of Article I, Section 32 under the United States Constitution."

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Eric Nicholson
Contact: Eric Nicholson