At first glance -- and second, and third -- Attorney General Greg Abbott's opinion on Monday that cities, counties, and school districts are barred by the Texas Constitution from offering health benefits to the domestic partners of employees would seem to be a stumbling block on the road toward equal treatment for gays and lesbians.
That's not, by and large, how it's being taken by advocates of domestic partner benefits. Sure, there were the obligatory complaints from the ACLU and others on the left, but local governments that already extend coverage to same-sex partners seem inclined to ignore Abbott's directive. And Equality Texas, an Austin-based advocacy group, immediately called the opinion a "huge win."
How so? As Chuck Smith, the group's executive director, argued yesterday in an email to supporters, Abbott's decision offers a "roadmap forward." Local governments can still offer domestic partner benefits, they just need to structure them in a way that don't create a "legal status identical or similar to marriage," which is explicitly prohibited by the state constitution. That's fairly easy to do.
Then there's the fact that Abbott's opinion is merely that: an opinion, one person's prediction of how Texas courts would rule if tasked with deciding the issue. It does not carry the force of law, and cities, counties, and school districts are free to ignore it.
And so you have the city of Austin agreeing to disagree with Abbott and others, like the city of San Antonio and Dallas County, that say they are reviewing the opinion but don't seem inclined to change.
That's not to say that Abbott's opinion is insignificant. It could cause local governments considering offering domestic partner benefits to hesitate, or perhaps embolden litigious taxpayers. But most are treating Abbott's opinion as the political document it is, a morsel of red meat Abbott's throwing to conservatives in advance of his expected 2014 bid for governor. It's almost like they knew this was going to happen.